Disposed

Abdul Kharim v. Pazhayakunnummel Grama Panchayath

Kerala HC13 Jul 2018WP(C)/9978/2018

Case brief

AI extract

What is this about?

Petitioners filed a writ seeking a formal building permit and declaration of a deemed license under Section 236(3) of the Kerala Panchayath Raj Act, arguing the Panchayat failed to decide their application within thirty days. The court held a deemed license did not accrue due to application defects and pending considerations. It directed the Panchayat to consider the application within one month.

What did the court decide?

Direction to the second respondent to consider the building permit application at the earliest and within one month from the date of receipt of a copy of this judgment.

Abdul Kharim Vs Pazhayakunnummel Grama… — Public Procurement and Tenders | 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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FRIDAY, THE 13TH DAY OF JULY 2018 / 22ND ASHADHA, 1940

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WP(C).No. 9978 of 2018

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PETITIONERS

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1 ABDUL KHARIM S/O.KOCHADIMA, AGED 57 YEARS, 'RASHEED NIVAS', THATTATHUMALA P.O., KILIMANOOR, THIRUVANANTHAPURAM DISTRICT-695 614

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2 C.K.RASHEED,

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S/O.KOCHADIMA, 'BISMI MANZIL', KALIPPAMKULAM, MANAKKADU P.O., THIRUVANANTHAPURAM DISTRICT-695 009

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BY ADVS.SRI.K.B.ARUNKUMAR

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SMT.S.REKHA KUMARI

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RESPONDENTS:

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1. PAZHAYAKUNNUMMEL GRAMA PANCHAYATH PAZHAYAKUNNUMMEL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695 601, REPRESENTED BY ITS SECRETARY

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2. THE SECRETARY, PAZHAYAKUNNUMMEL GRAMA PANCHAYATH, PAZHAYAKUNNUMMEL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695 601

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R1,R2 BY ADV. SRI.K.SIJU R1,R2 BY ADV. SMT.RENY ANTO

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 9978 of 2018 (V)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	THE COPY OF POSSESSION CERTIFICATE DT.19.1.2018 IN FAVOUR OF THE 1ST PETITIONER REGARDING 41.40 ARES OF PROPERTY
EXHIBIT P2	THE POSSESSION CERTIFICATE DT.19.1.2018 IN FAVOUR OF THE 1ND PETITIONER REGARDING 25.61 ARES OF PROPERTY
EXHIBIT P3	THE TAX RECEIPT ISSUED FROM THE VILLAGE OFFICE, PAZHAYAKUNNUMMEL TO THE 1ST PETITIONER REGARDING HIS PROPERTY IN SY.NO.155/3
EXHIBIT P4	THE TAX RECEIPT ISSUED FROM THE VILLAGE OFFICE, PAZHAYAKUNNUMMEL TO THE 2ND PETITIONER REGARDING HIS PROPERTY IN SY.NO.155/2
EXHIBIT P5	THE COPY OF SITE PLAN REGARDING THE PROPOSED BUILDING OF THE PETITIONERS
EXHIBIT P6	THE COPY OF RELEVANT PAGES OF ONLINE APPLICATION SUBMITTED BY THE PETITIONERS FOR BUILDING PERMIT.
EXHIBIT P7	THE COPY OF ACKNOWLEDGEMENT DT.7.2.2018 REGARDING RECEIPT OF APPLICATION FOR BUILDING PERMIT FROM THE PETITIONERS

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RESPONDENTS(S)' EXHIBITS :- NIL

/TRUE COPY/

P.A. TO JUDGE

DCS

SHAJI P. CHALY, J.

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W.P.(C). No. 9978 OF 2018

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Dated this the 13^th day of July, 2018

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JUDGMENT

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According to petitioners, they are owners of an extent of 41.40 Ares and 25.61 Ares of property comprised in Re-survey Nos. 155/2 and 155/3 in Block No. 32 of Pazhayakunnummel Village in Thiruvananthapuram District. It is also stated that petitioners are brothers and they intend to construct a commercial building jointly in their property. With the aforesaid intention, petitioners have submitted an application seeking building permit. The case projected by petitioners is that the application submitted by petitioners were not considered and the order was not communicated within thirty days from the date of submission of the application and therefore, a deemed

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W.P.(C). No. 9978 of 2018

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license is accrued to petitioners, in accordance with the provisions of Section 236(3) of the Kerala Panchayath Raj

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Act. Therefore, petitioners seek the following reliefs:-

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“i) Issue a writ of mandamus commanding the second respondent to issue a formal building permit based on the deemed permit accrued on the petitioners with effect from 07.02.2018.

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ii) To issue a writ in the nature of a declaration, declaring that the petitioners have a deemed building permit under 236(3) of Panchayat Raj Act for constructing a commercial building in their property covered under Ext.P1 to P4.

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iii) To pass such other reliefs that this Hon'ble Court deems fit and proper in facts and circumstances of the case.”

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A detailed counter affidavit is filed by

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respondents refuting the allegations, claims and demands raised by petitioners. It is submitted that petitioners have submitted an application for building permit to construct a commercial building on 07.02.2018. However, defects were noted and the application was returned through online on 12.02.2018. Again, petitioners re-submitted the application on 14.02.2018 and thereupon, the application

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W.P.(C). No. 9978 of 2018

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was forwarded to Overseer, Local Self Government Department for report on 21.02.2018. Thereafter, on the basis of a communication issued by the Panchayat petitioners submitted application for land development permit on 22.02.2018. However, certain documents which are required to be produced in order to process the application was not produced and thereupon, again the application was returned on 26.02.2018. It is also stated that petitioners were directed to produce consent letter from the Mining and Geology Department, as per a communication, dated 15.03.2018. Therefore, according to respondents the claim raised by petitioners to secure a deemed licence cannot be sustained under law.

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I have heard learned counsel for petitioners and

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learned counsel appearing for the Panchayat and perused the pleadings and the documents on record.

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The fact discussions made above would make it clear that there is no scope for petitioners to secure a deemed license as is submitted in the writ petition for the

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W.P.(C). No. 9978 of 2018

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reasons assigned by the respondent Panchayat with respect to the application submitted by petitioners. It is also evident from the counter affidavit that even though an application was submitted by petitioners on 07.02.2018, various defects were noted and communications were sent by and between the parties through online. Therefore, I am of the considered opinion that in accordance with the provisions contained under the Kerala Panchayat Raj Act, petitioners are not entitled to get a deemed license. However, the application submitted by the petitioners is pending consideration before the Panchayat in which a decision is to be taken by the Panchayat, since a statutory duty is conferred on the Panchayat to decide the application, in accordance with law.

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Therefore there will be a direction to the second respondent to consider the building permit application submitted by petitioners, at the earliest, and at any rate, within one month from the date of receipt of a

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W.P.(C). No. 9978 of 2018

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copy of this judgment, after securing participation of

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petitioners, if required.

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The writ petition is disposed of, accordingly.

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Sd/-

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SHAJI P. CHALY JUDGE

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DCS

Abdul Kharim v. Pazhayakunnummel Grama Panchayath

Case brief

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Abdul Kharim v. Pazhayakunnummel Grama Panchayath

Case brief

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