Disposed

N. Thankamony, v. the Mallapuzhassery Grama Panchayat

Kerala HC1 Feb 2019WP(C)/1080/2019

Case brief

AI extract

What is this about?

Court directed the petitioner to file a regularisation application under Rules 2018 or seek reconsideration under Rules 2011 within three weeks. Pending filing, the writ petition was disposed of without issuing an occupancy certificate directly.

What did the court decide?

Direction to file a regularisation application or seek reconsideration within three weeks; writ petition disposed of.

N. Thankamony, Vs the Mallapuzhassery Grama… — Pension and Retirement Benefits | Kerala HC (2019)

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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 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940

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WP(C).No. 1080 of 2019

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PETITIONER/S:

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N. THANKAMONY, AGED 63 YEARS W/O M.K. BALACHANDRAN PILLAI, NADAMANGALATHU HOUSE, MALLAPPUZHASSERY, ARANMULA P.O., PATHANAMTHITTA689523.

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BY ADV. SRI.S.SUBHASH CHAND

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RESPONDENT/S:

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1 THE MALLAPUZHASSERY GRAMA PANCHAYAT, PUNNACKADU P.O., PATHANAMTHITTA DISTRICT-689652, REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY, MALLAPUZHASSERY GRAMA PANCHAYAT, PUNNACKADU P.O., PATHANAMTHITTA DISTRICT-689652.

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3 THE MALLAPUZHASSERY GRAMA PANCHAYAT COMMITTEE, PUNNACKADU P.O., PATHANAMTHITTA DISTRICT-689652, REPRESENTED BY ITS PRESIDENT.

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4 THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, MALLAPUZHASSERY GRAMA PANCHAYAT, PUNNACKADU P.O., PATHANAMTHITTA DISTRICT-689652.

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BY ADV. SRI.JOSEPH GEORGE, SC, MALLAPPUZHASSERY GRAMA PANCHAYAT

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1080 of 2019

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JUDGMENT

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

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“I) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 and 2 to assign the building number and receive building tax as per law in respect of the building constructed by the petitioner in 194 square meter of property in re.Survey No.35/2 of Mallapuzhassery Village and covered by Ext.P1 Basic Tax receipt within such time as this Honourable Court may deem fit and proper in the interest of justice.

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ii) To issue a declaration that the petitioner has been duly issued with the requisite occuppancy certificate under the 2^nd Proviso to sub rule 3 of Rule 25 of the Kerala Panchayat Building Rules, 23011 and the respondents are bound in law to number the building constructed in 194 square meter of property in re-survey No.35/2 of Mallapuzhassery Village and covered by Ext.P1 Basic Tax receipt.

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Iii) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exts.P8 and P9 notices issued by respondent No.2 as ultravires of the provisions contained in the 2^nd proviso to Rule 25 (3) of the Kerala Panchayat Building Rules, 2011.

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iv) To mould and grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, inlcuding costs.”

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Petitioner, owner of an extent of 194 sqare meters of

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WP(C).No. 1080 of 2019

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property comprised in Re.Survey No.35/2 Mallapuzhassery Village, Kozhencherry Taluk, within the limits of 1^st respondent Grama Panchayat has carried out construction of a residentialcum-commercial building and thereafter submitted a completion certificate. According to the petitioner, defects were noted, however after a period of 15 days from the submission of the completion certificate by the petitioner. The sum and substance of the contention put forth is, there is a deemed occupancy accrued to the petitioner, in accordance with Proviso to Rule 25 (2) of the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as Rules, 2011' for short). Therefore, seeks direction for issuance of an occupancy certificate in paper form.

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I have heard learned Counsel for the petitioner, learned Government Pleader and learned Standing Counsel for the respondents Grama Panchayat,and perused the pleadings and documents on record.

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Learned Counsel for the petitioner reiterated the contentions raised in the writ petition. However, learned Standing Counsel pointed out that, a completion certificate was submitted by the petitioner on 6.9.2018, which was rejected as per Ext.P8 on 24.10.2018 assigning various reasons, adverting to

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WP(C).No. 1080 of 2019

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Building Rules, 2011. Ext.P10 clarification was submitted by the petitioner on account of Ext.P9 communication issued by the Secretary of the Grama Panchayat dated 17.12.2018. However, the fact remains, if there are deficiencies in the construction carried out by the petitioner violating the provisions of Rules 2011, petitioner will have to file a suitable application and take necessary steps enabling the Secretary of the Panchayat to reconsider the application for occupancy certificate, submitted by the petitioner.

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Learned Counsel for the petitioner submitted that petitioner is prepared to file a regularisation application before the Secretary of the Panchayat, taking advantage of the Kerala Panchayat Building (Regularisation of Unauthorised Construction) Rules, 2018.

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Having evaluated the situation, I think it is proper and fair that the petitioner is provided with an opportunity to do so. Accordingly there will be a direction to petitioner to submit a suitable application before the Secretary of the Panchayat under Rules 2018 or any other enabling powers under Rules, 2011 before the Secretary of the Grama Panchayath within three weeks, and if any such application is received, it shall be

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WP(C).No. 1080 of 2019

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considered by the Secretary, in accordance with law, and attain finality to the same, at the earliest and at any rate within a further period of three months from the date of receipt of the application from the petitioner. However, I make it clear that since the occupancy certificate was not issued within a period of 15 days in contemplation of Rules, 2011, the Secretary of the Panchayat will be at liberty to issue the same, but, in accordance with law.

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The writ petition is disposed of accordingly.

Sd/

SHAJI P.CHALY

JUDGE

Jm/

WP(C).No. 1080 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, MALLAPUZHASSERY VILLAGE
EXHIBIT P2	TRUE COPY OF THE BUILDING PERMIT DATED 1.3.2017 ISSUED TO THE PETITIONER'S BUILDING
EXHIBIT P3	TRUE COPY OF THE APPROVED PLAN OF THE PETITIONER'S BUILDING
EXHIBIT P4	TRUE COPY OF THE COMPLETION PLAN SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.2
EXHIBIT P5	TRUE COPY OF THE COMPLETION CERTIFICATE SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.2
EXHIBIT P5 A	TRUE COPY OF THE RECEIPT ISSUED BY RESPONDENT NO.2 TO THE PETITIONER
EXHIBIT P6	TRUE COPY OF THE RULING RENDERED BY THIS HON'BLE COURT IN HAMZA HAJI HAMZA HAJI S.K. V.S. PAYANNOOR MUNICIPALITY AND OTHES (208(4) KHC 30)
EXHIBIT P7	TRUE COPY OF THE RULING IN ATC TELECOM INFRASTRUCTURE PVT. LTD. (M/S) VS. KERALA STATE TELECOM ADVISORY COMMITTEE AND OTHERS (2018(4) KHC 42)
EXHIBIT P8	TRUE COPY OF THE COMMUNICATION BEARING NO.M.5-2831/18 DATED 24.10.2018 ISSUED BY RESPONDENT NO.2 AND SERVED ON THE PETITIONER ON 24.10.2018
EXHIBIT P9	TRUE COPY OF THE NOTICE DATED 17.12.2018 ISSUED BY RESPONDENT NO.2
EXHIBIT P10	TRUE COPY OF THE REPLY DATED 26.10.2018 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.2

N. Thankamony, v. the Mallapuzhassery Grama Panchayat

Case brief

What is this about?

What did the court decide?

N. Thankamony, v. the Mallapuzhassery Grama Panchayat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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