Dismissed

Laju Vas v. Punnapara South Grama Panchayat

Kerala HC25 Oct 2021WA/1360/2021

Case brief

AI extract

What is this about?

The High Court affirmed an order declining regularization of unauthorized construction because it violated Rule 26(4) yard requirements. While Rule 23 allowed construction 2m from the road, the Court held that separate yard rules also apply to roads as plot boundaries.

What did the court decide?

The appeal was dismissed and the Secretary's order was upheld.

Laju Vas Vs Punnapara South Grama Panchayat — Landlord and Tenant | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR &

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 25^TH DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 WA NO. 1360 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 15101/2021 DATED 02.09.2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/S:

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LAJU VAS, AGED 57 YEARS, S/O.MADHAVAN, MANNAPARAMBIL, WARD NO.2, PUNNAPRA P.O., ALAPPUZHA-688 004.

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BY ADVS. S.SANAL KUMAR BHAVANA VELAYUDHAN T.J.SEEMA

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RESPONDENT/S:

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1 PUNNAPRA SOUTH GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, PUNNAPRA, ALAPPUZHA-688 004.

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2 SECRETARY PUNNAPRA SOUTH GRAMA PANCHAYAT, PUNNAPRA, ALAPPUZHA-688 004.

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3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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R1 & R2 BY ADVS BRIJESH MOHAN

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R.RAJPRADEEP

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R3 BY SRI. K.P.HARISH, SR. GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO. 1360 OF 2021

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JUDGMENT

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SHAJI P.CHALY, J.

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The captioned appeal is preferred by the petitioner challenging the judgment of the learned Single Judge in W.P.(C).No.15101/2021 dated 02.09.2021, whereby, the learned Single Judge dismissed the writ petition holding that there is no illegality in Ext.P3 order dated 10.05.2021 passed by the Secretary of the Punnapra South Grama

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Panchayat - the 2^nd respondent refusing to regularize the unauthorized construction carried out by the appellant, since it is violative of Rule 26(4) of the Kerala Panchayat Building Rules, 2019. Brief material facts for the disposal of the writ appeal are as follows:

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The appellant owns an extent of 3.56 Ares of property comprised in Sy.No.417/11-3 of Punnapra Village. According to the appellant, he constructed a small shop room in his building having a plinth area of 17 square meter for starting a provision store, however, without securing any permit from the Secretary of the Grama Panchayat. It is the further contention of the appellant that, it was after the construction of the building the appellant understood that the

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provisions of the Kerala Panchayat Building Rules, 2019, (for short “the Rules, 2019”) would apply to the constructions carried out by the appellant, and therefore, the appellant ought to have taken a permit before the construction. Anyhow, on realizing that Rule 92 of the Kerala Panchayat Building Rules, 2019, enables the Secretary of the Grama Panchayat to regularize the construction if the construction is in accordance with the requirements of the Kerala Panchayat Raj Act 1994 and the Rules 2019, the appellant submitted Ext.P2 application, which was rejected by the Secretary as per Ext.P3 order stating that the construction cannot be regularized since it violates the mandatory requirements of Rule 26 (4) of the Rules, 2019. It is also stated in the said order that the open minimum yard measurement required under the said Rules is 3 meters but the open yard available in the plot in question is only 2.37 meters on an average and therefore, the Secretary is not vested with powers to regularize the construction. It was thus challenging the legality and correctness of the said order, the writ petition was filed.

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Panchayat had filed a counter affidavit justifying the stand adopted by the Secretary that no regularization can be permitted in view of the violation of Rule 26 (4) of the Rules, 2019.

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Learned Single Judge after assimilating the factual and legal circumstances, has found that the stand adopted by the Secretary of the Grama Panchayat is correct and therefore, the Secretary was not vested with powers to regularize the construction, however, the appellant is given the liberty to approach the Government for regularization of the unauthorized construction in accordance with the powers vested with the Government as per the rules constituted under Section 235 AB of the Kerala Panchayat Raj Act, 1994.

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The paramount contention advanced by the learned Counsel for the appellant is that the requirement contained in Table 4 of Rule 26 (4) would not apply to the instant case, since when the building site on any side abuts a road, the rule to be followed is Rule 23 and Table 3 of Rules 2019. It is also contended that, as per Rule 23 Table 3, the appellant is liable to maintain a distance of only 2 meters from the road to the construction put up by the appellant. It is further contended that there is no logic in applying Rule 26, since the issue is guided by the provisions of the Rule 23 alone. The sum and substance of the contention advanced is that, on an analysis of Rule 2 (dt) which defines yard makes it clear that what is meant by yard is an open space at ground level between a building and the adjoining boundary lines of

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the plot unoccupied or where a structure is in existence. According to the appellant, a plot is defined under Rule 2 (cf) which is a parcel or piece of land enclosed by definite boundaries as described in the document of title. Therefore, a conjoining reading of Rule 26 with Rule 2(dt) and Rule 2(cf) gives the inference that the requirement of Rule 26 is only when the building site abuts an unoccupied plot. To put it otherwise, the contention advanced by the appellant is that Rule 26 (4) applies only when a building site is abutting unoccupied plots under a different ownership, and then only the requirement of maintenance of the “yard” has to be met. But on the other hand, when the building site abuts on its boundary any road, the requirement of Rule 23 of the building rules 2019 need alone be satisfied, is the contention. Per contra learned counsel for the Panchayat submitted that both the rules would have to be satisfied since they are complementary to each other, and if not construed so, the purpose behind the rules would be defeated .

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We have heard learned Counsel for the appellant Sri. S. Sanal Kumar, learned Standing Counsel for the Grama Panchayat and the Secretary, Sri. Brijesh Mohan, and learned Senior Government Pleader

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Sri. K.P.Harish appeared for the 3^rd respondent, and perused the

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pleadings and the materials on record.

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Respective Counsel have addressed their arguments in accordance with the discussions made above.

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Learned Single Judge, after taking into account the provisions of Rules 23 and 26 (4) of the Kerala Panchayat Building Rules 2019, has arrived at the conclusion that, Rule 23 prohibits constructions abutting public roads, whereas, Rule 26(4) deals with the minimum yards to be set apart in the front portion for every building up to 10 meters in height. In order to understand the arguments advanced by the learned Counsel for the appellant, we extract Rule 23(1) and (2) and Table 3.

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23. Prohibition for construction abutting public roads .- (1) No person shall construct any building other than compound wall or fence or outdoor display structure within 3 meters, from any plot boundary abutting national highways, state highways, district roads, other roads notified by Panchayat, other un-notified roads with width 6 m and above:

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Provided that ramps or bridges or steps or similar structures, all open to sky, with or without parapets or railings shall be permitted as success

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from the street to the building only in such cases where the level difference between the street and the plot does not permit natural access to the building. Cornice roof or weather shade, not exceeding 75 cms shall be permitted to project from the building into such 3 metres. In no case, access to more than one floor can be provided within this 3 metres.

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Provided further that the underneath of such flight of steps or ramp shall not be enclosed or made usable, however pillars may be permitted for its support.

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(2) The minimum distance between plot boundary abutting the street and building other than a compound wall or fence or outdoor display structure shall be provided as in Table 3.

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National Highway,	Other
State Highway,	un-
District Roads,	notified
other roads notified	roads
under Section	with
220(b) of the Kerala	width
Panchayat Raj Act	less
1994, other un-	than 6
notified roads with	m
width 6m and above
3m	2m

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In order to identify the exact rule position as is contended by learned Counsel for the appellant, we extract Rule 26(4) and Table 4 thereto.

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26. Exterior and Interior open air spaces.

(1) xxxxx

(2) xxxxx

(3) xxxxx

(4) The minimum yards for every building upto 10 metres in height shall be as per the Table 4:-

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TABLE 4

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YARDS FOR BUILDING UNDER DIFFERENT OCCUPANCIES

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Yards	Buildings in Group A1 & A2 of any built-up area and Buildings in Group F with built-up area not exceeding 200 sq.metres	xx	xx	xx	xx	xx	xx	xx	xx	xx	xx
(1)	(2)	(3)	(4)	(5)	(6)	(7)	(8)	(9)	(10)	(11)	(1 2)
Front (in metre)	3	xx	xx	xx	xx	xx	xx	xx	xx	xx	xx
Rear (in	1.5	xx	xx	xx	xx	xx	xx	xx	xx	xx	xx

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metre)
Sides (in metre) 1	xx	xx	xx	xx	xx	xx	xx	xx	xx	xx

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On a deeper analysis of Rule 23(1), what we could gather is

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that, it prohibits any person from constructing any building other than compound wall or fence or outdoor display structure 3 meters, from any plot boundary abutting National Highways, State Highways, District roads, other roads notified by Panchayat and other un-notified roads with width 6 meter and above. However, sub-rule 2 thereto stipulates that the minimum distance between the plot boundary abutting the street and building other than a compound wall or fence or outdoor display structure shall be provided as in Table 3. In the instant case, the road in question is undisputedly “other un-notified roads” with width less than 6 meters and therefore, the construction of the building needs to be 2 meters from the un-notified road, which according to us is a safety feature of the rules to protect the interests of the passengers in vehicular traffic, as well as occupants of the building . whereas Rule 26(4) is intended for a different purpose, wherein, it is provided that for buildings in Group A1 and A2 of any built-up area and Buildings in Group F with built-up area not exceeding 200 sq. meters, there should be 3 meters open yard in the front side of the

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building.

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It is worthwhile to note, as per Rule 25 of the Rules, 2019, the buildings are categorized in accordance with their occupancy. Group A1 and Group A2 are dealing with residential buildings, lodging houses etc., which is not applicable to the case in hand. Group F deals with Mercantile or Commercial building including any building or part thereof, which is used for display and sale of merchandise etc., and in so far as the roofed up buildings with built-up area not exceeding 200 sq.meters, 3 meters shall be provided in the front yard, obliviously for the purpose of parking. Admittedly, the said space is not available.

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The contention advanced by the appellant is that since the plot is defined under Rules, 2019 to mean, a parcel or piece of land enclosed by definite boundaries as described in the document in support of ownership of the plot, it would not take a road as its boundary; it only deals with different plots; and if that is the case, then Rule 26(4) would not come into play and the appellant is only liable to satisfy the requirement of Rule 23 alone. That apart, it is contended that, as per Rule 2(dt), yard means an open space at ground level between a building and the adjoining boundary lines of the plot unoccupied and unobstructed except by encroachment of structures

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specially permitted by these rules on the same plot with a building; all yard measurements shall be the minimum distance between the front, rear and side yard plot boundaries, as the case may be, and the nearest point of the building including enclosed porches; every part of the yard shall be accessible from every part of the same yard. According to learned Counsel for the appellant, the definition makes it clear that the plot for which an open space to be provided is by and between the plots situated adjacent to the building and not adjacent to a road. To put it differently, learned Counsel submits that in the construction put up by the appellant, Rule 26(4) cannot be applied, and if Rule 23 is applied, there is sufficient space in between the un-notified road with less than 6 meter width so as to regularize the construction put up by the appellant. On the other hand, learned Counsel appearing for the Grama Panchayat submitted that both Rules 23 and 26(4) would have to be applied in order to secure regularization as is sought for by the appellant.

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We have appreciated the rival submissions made across the Bar. On an appreciation of the plot defined under Rule 2(cf), it is clear that plot means, it is a parcel or piece of land having definite boundaries as described in the document in support of ownership of

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the plot. We are informed that the un-notified road in question is situated on the western side of the plot and therefore, one boundary of the plot is the un-notified road. Viewed so, it can be seen that what is intended under the definition of plot is only definite boundaries in accordance with the document in support of the ownership of the plot and nothing else. Merely because one boundary is a road, that does not mean that it is not a boundary of the plot. That apart, Rule 2(dt) defining yard would have to be read as an open space at ground level between a building and the adjoining boundary lines of the plot, which will have to be read as the first limb of the definition of yard, and the phraseology “unoccupied and unobstructed” under the said definition would have to be read as to mean the yard should be unoccupied and unobstructed except by encroachment of structures specifically permitted by the rules on the same plot with the building. This would make it clear that the definition of yard, also foresees the inclusion of encroachment of structures specifically permitted by the rules on the same plot with a building. Therefore, it can be seen that it comprehends the construction of a building in accordance with the stipulations contained under Rule 23 of the Rules, 2019 also, how ever there should be an open space of three meters in the front side as per Rule 26 ( 4).

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Anyhow, reading the definition of plot and yard contained under the Rules, 2019, we could not arrive at any conclusion as submitted by learned Counsel for the appellant that the plot and yard would take in only the boundaries by and between the nearby properties. On the other hand, we are of the definite opinion that its requirement is in respect of a clear boundary and nothing else; whether it be a road or an adjoining property but it has never intended plots alone as boundaries . To put it differently even if all the discussed provisions are harmoniously constructed we are unable to gather the meaning as submitted by the learned counsel. Therefore, on an appreciation of the provisions discussed above , we are of the undoubted opinion that the appellant has not made out any case for interference with the judgment of the learned Single Judge, which upheld the impugned Ext.P3 order passed by the Secretary of the Grama Panchayat declining regularization of the unauthorized construction, basically for the reason that Rule 92 of the Rules, 2019, enables the Secretary, only to regularize the the construction carried out unauthorizedly, if it is done without violating the Rules of the Kerala Panchayat Building Rules, 2019, which reads thus:-

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“ 92. Power of the Secretary to regularise certain constructions .- The Secretary shall have

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the power to regularise 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 other work for which permission of the Secretary is necessary under this rule commenced, being carried on or completed without obtaining approved plan or in deviation of the approved plan:

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Provided that such work shall not be in violation of any of the provisions of the Act or these rules.

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Provided further that permit may be granted for continuing works already commenced without obtaining permit after levying fee equivalent to the compounding fee for regularization as per these rules for such part already constructed and permit fee for the remaining unconstructed part;

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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:

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Provided also that where the work was commenced, being carried on or completed after the statutory period specified in rules 14, 49(6), 70 or 87 and as per rules, such work shall be considered as duly permitted and not one requiring regularization.”

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Resultantly, the appeal fails and accordingly it is dismissed, however, we make it clear that if the appellant is advised, the appellant would be at liberty to approach the State Government as per the Rules made under Section 235AB of the Kerala Panchayat Raj Act, 1994, which empowers the Government to regularize any unlawful construction, for which the Secretary shall have no power to regularize under the provisions of the Act, 1994 and Rules thereto, subject of course to the rules for regularisation made by the Government, from time to time .

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Sd/S.MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P.CHALY JUDGE

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uu 25.10.2021

Laju Vas v. Punnapara South Grama Panchayat

Case brief

What is this about?

What did the court decide?

Laju Vas v. Punnapara South Grama Panchayat

Case brief

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