The High Court of Kerala dismissed a writ appeal challenging a Single Judge's order directing a Grama Panchayat to regularize illegal school construction. The Court held that while the construction was illegal, the Panchayat Secretary held powers under Rule 134 to regularize it and denied the appellants' claim of a deemed permit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.A.No. 1463/2020
CR
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942
WA.No.1463 OF 2020
AGAINST THE JUDGMENT DATED 05.10.2020 IN WP(C) 1481/2019(I) OF HIGH COURT OF KERALA
APPELLANTS/PETITIONES:
1 G.GEORGE AGED 79 YEARS S/O.GEEVARGHEESE, GIEGEOCOTTAGE, CHENKULAM P.O., KOLLAM-691 510.
2 K.THAMBI, THELLAKATH TL COTTAGE, CHENKULAM P.O., KOLLAM-691 510.
BY ADV. SHRI.M.V.S.NAMPOOTHIRY
RESPONDENT/RESPONDENT:
POOYAPPALLY GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, POOYAPPALLY P.O., KOLLAM-691 537.
SMT. BINDU SREEKUMAR, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
Dated this the 7th day of December, 2020 .
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeal is preferred by the writ petitioner in W.P.(C) No. 1481 of 2019 challenging the judgment of the learned single Judge dated 05.10.2020, whereby the learned single Judge disposed of the writ petition directing the Secretary of the Pooyappally Grama Panchayat, the respondent herein, to take a decision in the application submitted by the appellants for regularisation after notice to the appellants and the owners of the land, including one Mr. M. Alexander within a period of two months and in that process the Panchayat was directed to verify in regard to the status of the civil suit pending by and between the parties and also the orders passed therein. It is, thus, challenging the legality and correctness of the said judgment, the appeal is preferred.
The first appellant is one of the members of the Governing
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Council and the second appellant is the President of the Parent Teachers' Association of St. Thomas High School, Punnakode, Kollam District. A building having 400 square meters was constructed in the year 2016 to accommodate hi-tech classrooms. According to the appellants, after the completion of construction, a completion report duly signed by a qualified Engineer was submitted to the Panchayat. The Panchayat, instead of allotting building number and occupancy certificate, has been delaying the matter indefinitely by stating untenable objections, is the contention.
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learned single Judge should have issued a positive direction directing the respondent Panchayat to issue building number and occupancy certificate. Evidently, a civil suit is pending consideration before the Munsiff's Court, Kottarakkara as O.S. No. 451 of 2018 and orders were passed in interlocutory applications, which apparently was taken in appeal before the Sub Court, Kottarakkara and is pending as C.M.A. No. 5 of 2019.
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Act, 1994 deals with buildings and it delineates the requirements to be satisfied before any construction is carried out and as per Section 235B, no construction shall be carried out otherwise than in accordance with the provisions of the said part. The provisions contained there clearly prohibits any construction of a building without securing approval of the site and permission from the Secretary of the Panchayat. Section 235I mandates that the Secretary shall consider the site approval application and take a decision either to approve or reject within thirty days after the receipt of the application. As per Section 235J, the Secretary has to reject or grant permission for executing the work within thirty days after the approval of the site. If not, the remedy available to the aggrieved person is to make an application to the Village Panchayat under Section 235K of Act, 1994 and if the Village panchayat is not taking a decision within thirty days, thereafter alone a deemed permit would accrue to an applicant. Rule 7 of Rules, 2011 clearly mandates that every person other than a Central or State Government department, who intends to construct or reconstruct a building or make alteration or addition or extension to a building, shall apply in writing to the Secretary in the form in Appendix A together with plans and statements in triplicate as required under the Rules and documents to prove ownership of the land concerned
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and payment of application fee as in Schedule I along with a copy of the certificate of registration of the Architect or Building Designer or Engineer or Town Planner or Supervisor as the case may be, who has prepared and signed the plans, drawings and statements. The said provisions make it clear that if any construction is carried out without a permit, it would be illegal and the Secretary of the Grama Panchayat is vested with ample powers to interfere with any construction carried out so, under Chapter XXI of Act, 1994. However, in the case at hand, admittedly the construction was completed without the approval of the site and permission to construct and thereafter, the appellants approached the Secretary of the Grama Panchayat for securing the occupancy certificate and building number.
“134. Power of the Secretary to regularise certain constructions.- The Secretary shall have the power to regularise construction or reconstruction addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any work, for which permission of the Secretary is necessary under
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this Rule commenced, being carried on completed without obtaining approved plan or in deviation of the approved plan:
Provided that such construction or reconstruction or addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any such work shall not be in violation of any of the provisions of the Act or these rules:
Provided further that such power shall not relieve the Secretary of his responsibility in detecting and preventing such work and in taking other actions as per these rules:
Provided also that where the construction or work was commenced, being carried on or completed after the statutory period specified in these rules, such construction or work shall be considered as duly permitted and not one requiring regularization.”
to regularise the illegal constructions carried out without securing a permit. It was accordingly, that the learned single Judge directed the Secretary of the Grama Panchayat to consider the application submitted by the appellant for regularization of the illegal construction carried out, of course, subject to the provisions contained under Rule 134 of Rules, 2011, and subject to the other conditions contained in the said provision and other relevant provisions of Act, 1994 and the Rules, 2011.
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Act, 1994 is a general provision dealing with licences and permissions, and it would not come into play, in view of the specific provisions discussed above.
“16. Reference to Village Panchayat where the Secretary delays to grant or refuse to approve permission. - (1) The Panchayat shall, if the Secretary makes delay in granting or refusing approval for a building site, neither gives nor refuses permission to execute any work within thirty days from the date of receipt of the application, on the written request of the applicant, be bound to determine whether such approval or permission should be given or not.
(2) Where the Village Panchayat does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute work, but not so as to contravene any provision of the Act or these rules or bye-laws made thereunder.
Provided that such execution of work shall be considered as duly permitted and not one for regularisation and the permit shall be issued as per rules even if the work has been commenced or being carried on or
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completed if it otherwise complies with the provisions of rule.”
“25. Completion certificate, development certificate and occupancy certificate.- (1) Every owner shall, on completion of the development or redevelopment of land or construction or reconstruction or addition or alteration of building, as per the permit issued to him, submit a completion certificate certified and signed by him, to the Secretary in the form in Appendix E:
Provided that in the case of buildings, other than residential buildings up to two dwelling units, the completion certificate shall be certified and signed by the owner and registered Architect or Building Designer or Engineer or Town Planner or Supervisor also as in Appendix F.
(2) The Secretary shall, on receipt of the completion certificate and on being satisfied that the development or redevelopment of land has been effected in conformity with the requirements of these rules, issue a development certificate in the form in Appendix G, not later than 15 days from the date of receipt of the completion certificate:
Provided that if no such development certificate is received within
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the said fifteen days, the owner may proceed as if such a development certificate has been duly issued to him.
(3) The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the requirements of these rules, issue occupancy certificate in the form in Appendix H: not later than fifteen days from the date of receipt of the completion certificate:
Provided that, in case there is deficiency as per these rules in the minimum mandatory open spaces/yards after completion of the construction, the secretary may allow a tolerance upto 5% of the minimum mandatory open spaces/yards to be provided as per these rules or 20 centimetres whichever is less for the building constructed:
Provided also that if no such occupancy certificate is issued within the said fifteen days, the owner may proceed as if such occupancy certificate has been duly issued to him.
(4) The owner of a building may if he intends to occupy the building before its completion, apply to the Secretary for that purpose and the Secretary shall, on being satisfied that such occupancy will not in any way endanger life, issue occupancy certificate in respect of the completed part.”
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in accordance with the Rules, 2011. Taking into account all the above aspects, we do not think the appellants have made out a case justifying interference with the judgment of the learned single Judge. Therefore, it is explicit that the provisions considered above is a code and course by itself to be undertaken by the appellants to get the constructions regularised.
Needless to say, the writ appeal fails and accordingly, it is dismissed.
S. MANIKUMAR, CHIEF JUSTICE.
SHAJI P. CHALY, JUDGE.
Rv
3 issues framed by the court
Whether the High Court should interfere with the Single Judge's direction to the Grama Panchayat to consider the application for regularization of illegal construction.
Whether a deemed permit accrued to the appellants due to the Secretary's delay in deciding their building permit application.
Whether the Single Judge's order directing regularization under Rule 134 of the Kerala Panchayat Building Rules 2011 is legally sustainable.
5 provisions across 2 enactments
St. Thomas High School authorities (G. George and K. Thamby)
Pooyappally Grama Panchayat
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
