Partly allowed

Chandran K.P. v. the Olavanna Grama Panchayath

Kerala HC20 Nov 2019WP(C)/2782/2016

Case brief

AI extract

What is this about?

Petitioner sought directions under Section 235W of the Kerala Panchayath Raj Act against unauthorized construction. Court held that since a regularization application was pending before the District Town Planner, the Writ Petition was not infructuous. Directed the Secretary to take action only upon receipt of orders from the Town Planner. Dismissed the petition in the interim.

What did the court decide?

Writ Petition dismissed on merits as regularization application is pending, but directions issued to Panchayat Secretary to take action under Section 235W upon receipt of relevant orders and after hea

Chandran K.P. Vs the Olavanna Grama Panchayath — Municipal and Town Planning | 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 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941

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WP(C).No.2782 OF 2016(W)

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PETITIONER/S:

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CHANDRAN K.P. AGED 70 YEARS S/O. APPU, THADATHIL HOUSE, PULENKARA, PANTHEERANKAVU POST, KOZHIKODE DISTRICT, PIN 673019.

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BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH

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RESPONDENT/S:

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1 THE OLAVANNA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MATHARA, KOZHIKODE-673019.

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2 THE SECRETARY OLAVANNA GRAMA PANCHAYATH, MATHARA, KOZHIKODE-673019.

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3 K.T.FAISAL AGED 52 YEARS S/O. MAMMAD KOYA, KANHIRANGAT HOUSE, PULENKARA, PANTHEERANKAVU POST, KOZHIKODE DISTRICT, PIN-673019.

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4 ADDL.R4- DEPUTY DIRECTOR OF PANCHAYAT, CIVIL STATION POST, KOZHIKODE DISTRICT-673020

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5 ADDL.R5-THE DISTRICT TOWN PLANNER, TOWN AND COUNTRY PLANNING DISTRICT OFFICE, LINK ROAD, KOZHIKODE-673002(ADDL.R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 07.6.2019 IN IA.NO,1/2019)

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R1 BY ADV. SRI.T.M.KHALID R1, R3 BY ADV. SRI.K.M.FIROZ R1 BY ADV. SRI.S.KANNAN R1 BY ADV. SMT.M.SHAJNA R1-2 BY ADV. SRI.VINOD SINGH CHERIYAN

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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 20.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.2782 OF 2016(W) 2

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JUDGMENT

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The petitioner has approached this Court

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seeking directions to the 2^nd respondent-

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Secretary of Olavanna Grama Panchayath to take necessary action under the Section 235W of the

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Kerala Panchayath Raj Act against the

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construction made by the 3^rd respondent, which he says is an unauthorized one and therefore, incapable of being granted occupancy certificate or building number.

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The petitioner says that since the

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Secretary was refusing to take action, he was constrained to approach the learned Ombudsman for

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Local Self Government Institutions and to obtain

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Ext P3 order, as per which, the said Authority had directed the Secretary to take necessary action under the provisions of the afore mentioned Section. The petitioner says that, since the Secretary is still refusing to take action, he was constrained to approach this Court.

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WP(C).No.2782 OF 2016(W) 3

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The learned Standing Counsel appearing

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for the Grama Panchayat, in response, submitted

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that it is true that the 3^rd respondent’s construction is unauthorized and that the

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Municipality had taken necessary action against it by issuing an appropriate notice and order

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under the provisions of Section 235W of the Panchayath Raj Act. He says that, however, 3^rd

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respondent has now preferred an application for

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regularization of the building under the provisions of the Kerala Panchayath Raj

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(Regularization of Unauthorized Construction) Rules, 2018 and that same has been forwarded to the 5^th respondent - District Town Planner on

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5.11.2019. He says that the Panchayath is now

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awaiting further orders to be issued by the said Authority and the competent Committee constituted

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under the afore mentioned Rules and that on

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receipt of the same, necessary action will be taken in terms of law.

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The learned counsel appearing for the 3^rd

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respondent submits that this Writ Petition has

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WP(C).No.2782 OF 2016(W) 4

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now become infructuous because all that the petitioner wants is that necessary action be taken against the construction made by her client. She says that since the Panchayath has

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already done so and since her client's application under the afore mentioned Rules is pending consideration before the competent authority, no further orders may be issued in this Writ Petition.

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When I consider the afore submissions,

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it is ineluctable that the Panchayat appears to have taken action based on the complaint of the petitioner but that the 3^rd respondent has invoked

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his legitimate statutory remedy of making an application for regularization on the strength of the aforementioned Rules. I cannot find the application of the 3^rd respondent to be not maintainable, since it has been issued under the applicable Rules and I am, therefore, of the view that the Secretary of the Panchayat must await further orders to be issued by the 5^th respondent

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and the Committee constituted under the said

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WP(C).No.2782 OF 2016(W) 5

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Rules.

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Resultantly, I order this Writ Petition and direct the Secretary of the 2^nd respondent Grama Panchayat to take necessary action against the building of the 3^rd respondent, as and when he receives the order from the 5^th respondent and the Committee constituted under the provisions of the aforementioned Rules and after hearing the petitioner in terms of law, without any avoidable delay thereafter.

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Sd/

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DEVAN RAMACHANDRAN JUDGE

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WP(C).No.2782 OF 2016(W) 6

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 EXHIBIT P1- TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE RESPONDENT NO.2 DATED 26-05-2014.

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EXHIBIT P2 EXHIBIT P2- TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENT NO.2 BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 24-11-2014.

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EXHIBIT P3 EXHIBIT P3- TRUE COPY OF THE ORDER BY THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANATHAPURAM DATED 16-03-2015.

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EXHIBIT P4 EXHIBIT P4- TRUE COPY OF THE REPLY SENT BY THE RESPONDENT NO.2 TO THE PETITIONER DATED 13-10-2015.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R1 NIL. EXHIBIT R2 NIL. EXHIBIT R2 A COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT PANCHAYATH DATED 25.02.2012. EXHIBIT R2 B COPY OF THE COMPLAINT FILED BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS AS O.P.NO.838 OF 2014. EXHIBIT R2 C COPY OF THE LETTER NO.A4-5167/2017 DATED 27.04.2018 ADDRESSED TO THE 3RD RESPONDENT. EXHIBIT R2 D COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 11.05.2018. EXHIBIT R2 E COPY OF THE LETTER NO.A4-2863/2018 ADDRESSED TO THE DISTRICT TOWN PLANNER, KOZHIKODE DATED 05.11.2019.

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//TRUE COPY// CA TO JUDGE

Chandran K.P. v. the Olavanna Grama Panchayath

Case brief

What is this about?

What did the court decide?

Chandran K.P. v. the Olavanna Grama Panchayath

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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