Allowed

E.P.Pradeep v. the Koduvayur Grama Panchayat

Kerala HC5 Nov 2019WP(C)/1171/2019

Case brief

AI extract

What is this about?

The Court directed the Panchayat to forward the petitioner's regularization application to the District Town Planner. The Town Planner must transmit it to the statutory Committee within one month, which must report back within two months. Final orders must follow within one month. The previous order rejecting the application was quashed as ultra vires.

What did the court decide?

The writ petition is allowed. The Panchayat is directed to forward the application to the District Town Planner, who must transmit it to the authorized Committee within one month, with the Committee s

E.P.Pradeep Vs the Koduvayur Grama Panchayat — 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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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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WP(C).No.1171 OF 2019(V)

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PETITIONER:

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E.P.PRADEEP AGED 54 YEARS S/O BALASUBRAMANIAN,KRISHNAPRASAD HOUSE,GOKULAM STREET,KODUVAYUR, PALAKKAD DISTRICT,PIN-678501.

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BY ADV. SRI.BINOY VASUDEVAN

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RESPONDENTS:

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1 THE KODUVAYUR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY,KODUVAYUR.P.O, PALAKKAD DISTRICT,PIN-678501.

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2 THE SECRETARY KODUVAYUR GRAMA PANCHAYAT, KODUVAYUR.P.O,PALAKKAD DISTRICT.

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*3 ADDL.R3 - THE DISTRICT TOWN PLANNER, OFFICE OF THE DISTRICT TOWN PLANNER, CIVIL STATION, PALAKKAD, 678 001.

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*4 ADDL.R4 - THE COMMITTEE, CONSTITUTED BY THE GOVERNMENT TO REGULARIZE THE UNAUTHORIZED CONSTRUCTION REPRESENTED BY ITS CONVENOR, DISTRICT TOWN PLANNER,OFFICE OF THE DISTRICT TOWN PLANNER, CIVIL STATION, PALAKKAD, 678 001.

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***(ADDL.R3 AND R4 IMPLEADED AS PER ORDER DATED 5/11/19 IN I.A.NO.2/19 IN WP(C)1171/19.)**

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BY ADV. SRI.K.MOHANAKANNAN BY ADV. SMT.A.R.PRAVITHA

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OTHER PRESENT:

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GP - POOJA SURENDRAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.1171 OF 2019(V)

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J U D G M E N T

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The petitioner has approached this Court assailing the alleged inaction of the respondent - Panchayat in forwarding his application, for regularization of a construction made by him, under the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules (“Unauthorized Construction Rules” for short) .

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According to the petitioner, the Panchayat has taken the stand that it cannot regularize the construction in question either under the Kerala Panchayat Building Rules or under Section 235AB of the Kerala Panchayat Raj Act and therefore, that he can apply for its regularization only under the provisions of the aforementioned Unauthorized Construction Rules. The petitioner says that it is in such circumstances that he has made an application under the Unauthorized Construction Rules, which is evident from Ext.P8 receipt; and alleges that the Panchayat has not considered the same as of now. He therefore, prays that the Panchayat be directed to take up the said application and forward the same to the competent

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WP(C).No.1171 OF 2019(V)

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Committee, through the District Town Planner, as per the provisions of the Unauthorized Construction Rules.

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Sri.Mohanakannan, learned Standing Counsel appearing on behalf of the Panchayat, submits that a counter affidavit has been filed on record, wherein, they have produced Ext.R1(a) communication issued by the Panchayat to the petitioner informing him that his application has been rejected. He says that this was because the construction violates the provisions of the Kerala Panchayat Building Rules and therefore, that the Panchayat obtains no jurisdiction, either under the Unauthorized Construction Rules or under the Panchayat Raj Act to deal with the same. He therefore, prays that this writ petition be dismissed.

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Even when I hear Sri.Mohanakannan on the afore lines, there is no doubt that when a construction violates the Building Rules, then the power of the Secretary of the Panchayat to deal with an application for regularization either under the KPB Rules or under Section 235AB of the Kerala Panchayat Raj Act is extremely inhibited. However, the provisions of the Unauthorized Construction Rules, 2018, have

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WP(C).No.1171 OF 2019(V)

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been brought into force specifically for this reason; but as rightly pointed out by Sri.Binoy Vasudevan-learned counsel for the petitioner – an application made under it could not have been rejected by the Panchayat, but they could have only transmitted it to the Authorized Committee, constituted under the said Rules, through the office of the District Town Planner. This is the mandate of the Unauthorized Construction Rules and obviously, therefore, Ext.R1(a), now produced by the Panchayat along with their counter affidavit, cannot find my favour.

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Resultantly, I order this writ petition and direct the Panchayat to forward the application of the petitioner made under the provisions of the Unauthorized Construction Rules, 2018, to the additional 3^rd respondent - District Town Planner; who will thereupon, forward the same to the Committee constituted under the said Rules for consideration and disposal.

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Once the Committee takes a final decision on the application, they will retransmit the file to the Secretary of the Panchayat, who will then take a final decision in terms of law

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WP(C).No.1171 OF 2019(V)

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with respect to the building in question.

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In order to obtain an expeditious disposal of the directions in this judgment, I direct the respondent - Panchayat to forward the application of the petitioner, along with all necessary materials and files, to the Office of the District Town Planner within a period of ten days from the date of receipt of a copy of this judgment; which Authority will thereupon, along with his recommendations and suggestions, transmit the same to the Committee constituted under the Unauthorized Rules within a period of one month thereafter. Once the Committee receives the file from the Office of the District Town Planner in the afore manner, they will consider the application of the petitioner and forward their report to the Secretary of the Panchayat, as per the requirements under the said Rules, not later than two months after the date on which they receive the file from the Office of the District Town Planner. The Secretary of the Panchayat will, thereupon and if the findings are to the favour of the petitioner, issue final orders on their application not later than one month after the files reach him from the Committee under the Unauthorized Construction

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WP(C).No.1171 OF 2019(V)

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Rules.

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Needless to say, the afore exercise shall be completed by all the competent Authorities, de hors Ext.R1(a), since the said order appears to have been issued by the Panchayat without Authority.

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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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WP(C).No.1171 OF 2019(V)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF DOCUMENT NO.602/2008 OF S.R.O.KODUVAYUR.
EXHIBIT P2	TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER,KODUVAYUR I VILLAGE.
EXHIBIT P3	TRUE PHOTOGRAPHS OF THE PROPERTY.
EXHIBIT P4	TRUE C0PY OF THE JUDGMENT DATED 02.06.2017 IN W.P.(C)NO.33308 OF 2015.
EXHIBIT P5	TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 1ST RESPONDENT ACKNOWLEDGING THE APPLICATION.
EXHIBIT P6	TRUE COPY OF THE COMMUNICATION NO.A4/4209/2015 DATED 14.09.2017.
EXHIBIT P7	TRUE COPY OF THE REVISED PLAN SUBMITTED BY THE PETITIONER.
EXHIBIT P8	TRUE COPY OF THE RECEIPT DATED 16.05.2018 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT.
RESPONDENT'S EXHIBITS:
EXT.R1(a)	TRUE COPY OF THE COMMUNICATION SENT TO THE PETITIONER DATED 16.07.2018 BY THE PANCHAYAT.

E.P.Pradeep v. the Koduvayur Grama Panchayat

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E.P.Pradeep v. the Koduvayur Grama Panchayat

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