Disposed

Baburajan v. the Mynagappally Grama Panchayat

Kerala HC24 Jul 2018WP(C)/5036/2018

Case brief

AI extract

What is this about?

Petitioner challenged a Panchayat order rejecting his request for numbering a shop room built on the first floor of a building due to encroachment on public road space. The Court declined to quash the order but granted liberty to apply for regularization under a new Government notification.

What did the court decide?

Liberty granted to petitioner to submit an application for regularization of the building, to be considered by the Panchayat within two months.

Baburajan Vs the Mynagappally Grama Panchayat — Municipal and Town Planning | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940

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WP(C).No. 5036 of 2018

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PETITIONER :

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BABURAJAN, KOCHUVEETTIL THEKKETHIL, EDAVANASSERY, MYNAGAPPALLY, KOLLAM DISTRICT.

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BY ADVS.SRI.K.B.ARUNKUMAR SRI.RANJIT BABU SMT.S.REKHA KUMARI

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RESPONDENTS :

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1. THE MYNAGAPPALLY GRAMA PANCHAYAT, MYNAGAPPALLY(P.O.), KOLLAM DISTRICT,PIN-590519, REPRESENTED BY ITS SECRETARY.

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2. THE SECRETARY, THE MYNAGAPPALLY GRAMA PANCHAYATH, MYNAGAPALLY(P.O.), KOLLAM DISTRICT,PIN-690519.

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BY ADV. SRI.SIJU KAMALASANAN, SC, MYNAGAPPALLY GRAMA PANCHAYAT

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5036 of 2018 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 THE TRUE COPY OF THE NOTICE DATED 18.07.2016 ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 THE TRUE COPY OF THE NOTICE DATED 28.09.2017 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS

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EXHIBIT R1(A) THE COPY OF BUILDING PERMIT DATED 17.3.2014 VIDE NO.B22393/2014 ISSUED BY THE PANCHAYAT EXHIBIT R1(B) THE COPY OF NOTICE ISSUED U/S 235W DATED 28.9.2017 BY THE PANCHAYAT TO THE PETITIONER

TRUE COPY

P.S. TO JUDGE

27.7.2018

SHAJI P. CHALY, J.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.5036 of 2018

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- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24^th day of July, 2018

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J U D G M E N T

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This writ petition is filed by the petitioner seeking the following reliefs:-

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“(i) Call for the records leading to Exhibit P-2 and quash the same by issuing a writ of certiorari or other appropriate order or direction.

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(ii) issue a writ of mandamus or any other appropriate writ, or direction commanding the respondents to number the shop room constructed on the 1^st floor of the building belongs to the petitioner in Ward No.7 of the 1^st respondent Panchayat and comprised R.Sy.No. 97/15 of Mynagappally Village, and

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(iii) Such other order or direction deems fit and proper for his Hon'ble Court in facts and circumstances of the case.”

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Petitioner had constructed a shop room in the property

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belonging to the petitioner situated in R.S.No.97/15 of Mynagappally Village, Ward No.7 of the 1^st respondent Panchayat. After the construction of the ground floor, petitioner

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has constructed another shop room on the first floor, according to the petitioner, with the permission of the 1^st respondent, and approached the respondents for numbering the building. The

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W.P.(C)No. 5036 of 2018

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officers of the 1^st respondent inspected the property and issued Ext.P1 order rejecting the request by stating irregularities in the construction carried out by the petitioner. According to the petitioner, petitioner has rectified the irregularities noted in Ext.P1 and submitted a request before the 1^st respondent. It was also rejected as per Ext.P2 notice, pointing out a new irregularity, other than the one stated in Ext.P1 to the effect that, the building is constructed without leaving 3 mts. from the road, and not in accordance with the Building Rules.

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The respondents have filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner. According to the respondents, petitioner submitted an application for construction of a three-storied building having a plinth area of 128.46 and obtained permit to construct the building in the property situated in R.S.No.97/15 in Block No.10 of Mynagappally Village. The first floor of the building was completed and the same was assigned building number. Thereafter, yet another floor was completed and applied for the building number. On inspection, it was found that, the sunshade

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W.P.(C)No. 5036 of 2018

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of the first floor was constructed in such a way, projecting into the open space affecting the public road and erected grill over the sunshade to make use of the portion. Since, grill was provided over the sunshade, it is projecting into the 3mts open space provided under section 220B of the Kerala Panchayat Raj Act. The overseer could not measure the encroachment. Thereupon, Ext.P1 notice was issued, and other contentions are also raised.

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I have heard learned counsel for the petitioner and perused the pleadings and documents on record.

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In my considered opinion, the order under challenge before this Court is of the year 2016. Now the State Government has issued a new notification, enabling the un-authorized constructions to be regularized, which is in force. Therefore, I am of the considered opinion that, the petitioner can be given the liberty to submit suitable application, seeking regularization of the building, in accordance with the Kerala Panchayat Raj Act, as well as the notification issued by the Government in the year 2018. If the petitioner makes any such application before the 2^nd

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W.P.(C)No. 5036 of 2018

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respondent, it shall be considered in accordance with law, and attain finality, at the earliest possible time, and at any rate, within two months from the date of receipt of applications from the petitioner.

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The writ petition is disposed of accordingly.

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Sd/SHAJI P. CHALY JUDGE

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SPV/26.07.2018

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//TRUE COPY//

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PA TO JUDGE

Baburajan v. the Mynagappally Grama Panchayat

Case brief

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Baburajan v. the Mynagappally Grama Panchayat

Case brief

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