Partly allowed

A.Muhammed Rafi v. the State of Kerala

Kerala HC13 Nov 2019WP(C)/11140/2019

Case brief

AI extract

What is this about?

This writ petition challenged the denial of a building number. The court set aside the Secretary's order, directing him to conduct a proper enquiry with notice to the petitioner and consider whether the construction predates the notified building rules which would exempt it from compliance.

What did the court decide?

Set aside Ext.P8 order; direct Secretary to conduct proper enquiry after notifying petitioner and decide within two months.

A.Muhammed Rafi Vs the State of Kerala — Property and Title | 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 DEVAN RAMACHANDRAN

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WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941

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WP(C).No.11140 OF 2019(N)

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PETITIONERS:

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1 A.MUHAMMED RAFI AGED 49 YEARS S/O. ABDUL AZEEZ, THOPPUVILA VEEDU, VALAKKUZHI PACHA, KALLARA P.O, THIRUVANANTHAPURAM PIN 695 608

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2 THARIQ, AGED 46 YEARS THOPPUVILA VEEDU, VALAKKUZHI PACHA, KALLARA P.O, THIRUVANANTHAPURAM, PIN 695 608 BY ADVS. SRI.D.SAJEEV SMT.LIGEY ANTONY

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE DEPUTY DIRECTOR OF PANCHAYAT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, CIVIL STATION, 4TH FLOOR, KODAPPANAKUNNU P.O, THIRUVANANTHAPURAM 695 005 3 THE KALLARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRTARY, KALLARA, KALLARA P.O, THIRUVANANTHAPURAM 695 608

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WP(C).No.11140 OF 2019(N)

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4 THE SECRETARY, KALLARA GRAMA PANCHAYAT, KALLARA, KALLARA P.O, THIRUVANANTHAPURAM 695 608

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GP SMT.POOJA SURENDRAN SRI.C.S. SUMESH- SC, FOR PANCHAYAT-

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.11140 OF 2019(N)

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JUDGMENT

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The petitioner has approached this Court impugning Exts.P1

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and P8 order of the Tribunal for Local Self Government Institutions and that of the 4^th respondent-Secretary of Kallara Grama Panchayat respectively, the effect of which is that his application for numbering the building constructed in the year 2007 has been denied.

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The petitioner says that, as is clear from Ext.P1, the Tribunal has refused to entertain the appeal filed against Ext.P8, while Ext.P8; order has been issued by the Secretary without any application of mind. The petitioner, therefore, prays that Exts.P1 and P8 be set aside and the 4^th respondent be directed to reconsider his application for numbering the building in question in terms of law.

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The learned counsel for the petitioner-Sri.D.Sajeev, added to the afore by showing me that the construction in question began on the basis of an No Objection Certificate issued by the Panchayat on 16.10.2005, a copy of which is on record as Ext.P6. He says that, as is evident from Ext.P7 ‘Stage Certificate’ issued by the Secretary of the Panchayat, the construction was completed as on 14.02.2007 and therefore, that the said

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WP(C).No.11140 OF 2019(N)

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Authority ought to have granted number without insisting on the said construction complying with the provisions of the Kerala Panchayat Building Rules, which came into force in the said Panchayat only with effect from 16.07.2007. He says that, in fact, the Government has issued Ext.P10 circular permitting such course, but that the Secretary has now refused to do so through Ext.P8 order. He, reiteratingly, therefore, prays that Ext.P1 order of the Tribunal and Ext.P8 order of the Secretary be set aside, so as to enable the latter to reconsider his clients application.

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The learned Standing Counsel for the 3^rd respondentKallara Grama Panchayat; Sri.C.S.Sumesh, submits that most of the documents produced by the petitioner before this Court, including the ‘Stage Certificate’ are suspected to have been fraudulently obtained and that signatures of the Secretary of the Panchayat appearing therein is suspected to be forged. He says that an enquiry has already been conducted by the Panchayat, wherein the earlier Secretary, whose signature is seen on the said certificate, has informed them that he had not issued the same and that his signatures do not appear to be genuine. The learned Standing Counsel, therefore, prays that this Court may not grant any reliefs to the petitioner and dismiss this writ petition,

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WP(C).No.11140 OF 2019(N)

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allowing the Panchayat to take further action against them for having produced fraudulent documents before this Court.

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Even when I hear Sri.Sumesh on the afore lines, the fact remains that the allegations now made against the petitioner have not been conclusively proved. The learned counsel, no doubt, refers to an internal enquiry conducted by the Panchayat with respect to the some of the documents produced in this writ petition, but this enquiry has been concededly conducted by the Panchayat without any notice to the petitioner. I cannot, therefore, countenance their stand that the petitioner's building will not be numbered merely because of these reasons.

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Resultantly, I set aside Ext.P8 order of the Secretary and direct him to cause a proper enquiry after notifying the petitioner appropriately, as to the genuiness of the documents produced by him, including Ext.P7 ‘Stage Certificate,’ and then take a decision as to the future course of action with respect to his application for numbering the building, also after adverting to Ext.P10 circular of the Government.

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I am persuaded to this course because, as rightly pointed out by Sri.Sajeev, if his client is able to establish that he had constructed the building prior to the coming into force of the

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WP(C).No.11140 OF 2019(N)

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Kerala Panchayat Building Rules, then certainly the stand of the Panchayat in Ext.P8, that the building should conform to the said Rules cannot find favour of this Court. It has been well settled through a catena of judgments of the Hon’ble Supreme Court and of this Court that an ex post facto law cannot be made applicable to a construction which has already been completed.

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I further make it clear that I have not entered into the dialectical contentions of the parties on its merits and that it will be up to the Secretary to take an apposite decision, after following due procedure and hearing the petitioner not later than two months from the date of receipt of a copy of this judgment. This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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nak

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WP(C).No.11140 OF 2019(N)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER DATED 08-03-2019 IN APPEAL NO 158 OF 2019 ON THE FILE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM EXHIBIT P2 TRUE COPY OF THE SALE DEED NO. 2213 OF 2008 DATED 15-10-2008 IN FAVOUR OF THE PETITIONERS EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT EVIDENCING THE PAYMENT OF TAX DATED 28-07-2018. EXHIBIT P4 TRUE COPY OF THE RECEIPT EVIDENCING THE EFFECTING OF MUTATION IN FAVOUR OF THE PETITIONERS WITH REGARD TO THE PROPERTY COVERED BY EXT P1 SALE DEED EXHIBIT P5 TRUE COPY OF THE AGREEMENT FOR SALE DATED 06-07-2005 EXECUTED BY SRI. V. SYAMAPARASAD IN FAVOUR OF THE PETITIONERS. EXHIBIT P6 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 06-10-2005 ISSUED BY THE 4TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE STAGE CERTIFICATE NO A3-85/05 DATED 14-02-2007 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE LETTER NO. 85-05/05 DATED 14-02-2007 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P9 TRUE COPY OF THE RELEVANT PAGES OF THE KERALA GAZETTE DATED 9-10-2007 WHICH CONTAINS THE NOTICE DATED 16-07-2007 OF THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE CIRCULAR NO. 31019/RA1/11/LSGD DATED 22-06-2014

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WP(C).No.11140 OF 2019(N)

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EXHIBIT P11 TRUE COPY OF THE LETTER NO. A6 2983/18 DATED 14-08-2018 EXHIBIT P12 TRUE COPY OF THE LETTER NO. A6-2983/18 DATED 07-02-2019 ISSUED BY THE 4TH RESPONDENT.

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//TRUE COPY// P.A TO JUDGE

A.Muhammed Rafi v. the State of Kerala

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A.Muhammed Rafi v. the State of Kerala

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