Allowed

Vincy Varghese v. State of Kerala

Kerala HC7 Jan 2021WP(C)/20867/2020

Case brief

AI extract

What is this about?

The High Court, Ernakulam, allowed the writ petition quashing a notice and final order issued by the Grama Panchayat under Section 235W of the Kerala Panchayat Raj Act for demolishing a compound wall. The Court held that the regularisation order was invalid as it was passed without affording the petitioner an opportunity of hearing as mandated by the statute.

What did the court decide?

Ext.P6 notice and Ext.P8 order issued by the third respondent were quashed; the writ petition was allowed.

Vincy Varghese Vs State of Kerala — Landlord and Tenant | Kerala HC (2021)

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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 P.B.SURESH KUMAR

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THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

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WP(C).No.20867 OF 2020(G)

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PETITIONER:

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VINCY VARGHESE AGED 38 YEARS W/O VARGHESE, OLYPARAMBIL HOUSE, NAYARAMBALAM P.O, NAYARAMBALAM VILLAGE,

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KOCHI TALUK, ERNAKULAM DISTRICT-682509.

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BY ADVS. SRI.K.A.MANZOOR ALI SRI.JACOB GEORGE (PARAVUR)

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS REVENUE SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 DEPUTY DIRECTOR OF PANCHAYATH OFFICE OF THE DIRECTOR OF PANCHAYATH, CIVIL STATION, THRIKKAKARA, KAKKAND, KERALA-682030.

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3 THE SECRETARY NAYARAMBALAM GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE, NAYARAMABALAM P.O, ERNAKULAM DISTRICT-682509.

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4 T. V SAJEEVAN AGED 50 YEARS S/O VISWAMBARAN, THILEPARAMBIL, NAYARAMBALAM KARA, NAYARAMBALAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRTICT-682509.

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5 MITHUN P.J S/O JAYAN, PAYYAPPILLY, KALAVANPARA ROAD, NAYARAMBALAM,

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WP(C).No.20867 OF 2020(G)

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ERNAKULAM DISTRICT-682509.

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6 SUMA VENU W/O VENU, RAMANKODATH, SEASHORE ROAD, ATH TOURIST HOME, WEST NAYARAMBALAM, ERNAKULAM DISTRICT-682509, (PANCHAYATH MEMBER OF WARD NO.14 OF NAYARAMBALAM GRAMA PANCHAYATH).

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7 THE SUB INSPECTOR OF POLICE POLICE STATION NJARKKAL, PIN-682505.

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R3 BY SHRI.K.N.CHANDRABABU, SC, NAYARAMBALAM GRAMAPANCHAYAT R5 BY ADV. SRI.ANIL S.RAJ R5 BY ADV. SRI.RADHIKA RAJASEKHARAN P. R5 BY ADV. SMT.ANILA PETER R5 BY ADV. SRI.K.P.SHIBU R5 BY ADV. SMT.P.A.SULEKHA R5 BY ADV. SRI.SAJEN THAMPAN R5 BY ADV. SMT.K.N.RAJANI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-2020, THE COURT ON 07-01-2021 DELIVERED THE FOLLOWING:

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WP(C).No.20867 OF 2020(G)

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W.P.(C) No.20867 of 2020

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J U D G M E N T

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Petitioner was issued Ext.P6 notice by the third respondent, the Secretary of the Nayarambalam Grama Panchayat, calling upon her to remove a compound wall constructed by her, alleging that the construction is unauthorised. It is stated in Ext.P6 notice that the same was issued under Section 235W of the Kerala Panchayat Raj Act, 1994 (the Act). The petitioner has caused to send a reply to Ext.P6 notice contending that the compound wall constructed by her is not unauthorised. Ext.P7 is the reply sent to the Panchayat on behalf of the petitioner. The petitioner was issued Ext.P8 order calling upon her to remove the alleged unauthorised construction referred to in Ext.P6 again. In Ext.P8 order, it is stated that if the petitioner does not comply with the requirement therein, the alleged unauthorised construction will be removed by the Panchayat. Ext.P8 order is issued styling it as one issued affirming Ext.P6 notice.

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WP(C).No.20867 OF 2020(G)

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Ext.P8 order is under challenge in the writ petition.

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Heard the learned counsel for the petitioner as also the learned Standing Counsel for the Panchayat.

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The main contention of the petitioner is that if the construction is unauthorised, the same can be removed only in accordance with the provisions in Section 235W of the Act and that Ext.P8 order cannot be construed as one issued in terms of the said statutory provision.

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Section 235W of the Act dealing with

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demolition or alteration of building works unlawfully commenced, carried on or completed, reads thus:

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“235W. Demolition or alteration of building works unlawfully commenced, carrying on or completed. -

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(1) Where the Secretary is satisfied that – (i) the construction or reconstruction or alteration of any building -

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(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the village panchayat; or

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(b) is being carried on, or has been completed otherwise than in accordance with the plans, specifications, or information on which such permission or decision was based; or

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WP(C).No.20867 OF 2020(G)

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(c) is being carried on, or has been completed in contravention of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or

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(ii) any alteration required by notice issued under section 235 N has not been duly made; or

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(iii) any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 235-V, he may make a provisional order requiring the owner or the person for whom the work is done, to demolish the work done, or any part of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alteration as may be necessary to bring the work in conformity with the provisions of this Act, byelaws, rules, direction, order or requisition as aforesaid or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work:

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Provided that the Secretary may, on realization of a compounding fee as may be fixed by Government, regularize any construction, re-construction, or alteration of the building, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the plan approved by him, if such construction or alteration of the building does not contravene any of the criteria or specifications mentioned in the Act or the rules made thereunder.

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WP(C).No.20867 OF 2020(G)

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(2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice, why the order should not be confirmed.

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(3) where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the order to such an extent as he may think fit to make and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished, as the case may be, and expenses thereof shall be recoverable from the owner or such person.

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(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), prosecution proceedings may be initiated against the owner or the person for whom the work is done.

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(5) Where the Government is satisfied that the construction, reconstruction or alteration of any building has been carried out in violation of any of the provisions of this Act or any rule made thereunder or any direction lawfully given by the Government or Secretary, the Government may direct the Secretary of the Village Panchayat to cause the demolition of such construction, re-construction or alteration and if such direction is not complied within the time limit specified in such direction, the Government may arrange its demolition and the cost there of shall be recovered from the Village Panchayat.”

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As evident from the extracted provision, sub-section (1) of

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WP(C).No.20867 OF 2020(G)

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Section 235W of the Act confers power on the Secretary of the Panchayat to make a provisional order requiring demolition of any work which, in the opinion of the Secretary has been constructed, violating the provisions of the Act. Sub-section (2) of Section 235W, however, provides that the Secretary shall serve a copy of the provisional order made under subsection (1) on the person for whom the construction was made with a notice requiring him to show cause within a reasonable time to be specified in such notice, why the order should not be confirmed. Sub-section (3) provides that if the person for whom the construction is made fails to show cause to the satisfaction of the Secretary as to why the construction shall not be demolished, the Secretary may confirm the order or modify the order to such an extent as he may think to make and such order shall then be binding on the person for whom the construction has been carried out, and that on failure to comply with that order, the Secretary may himself cause the building or part thereof, demolished, as the case may be, and the expenses thereof shall be recovered from such person.

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Ext.P6 notice issued by the Secretary of the

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WP(C).No.20867 OF 2020(G)

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Panchayat to the petitioner purportedly under Section 235W of the Act reads thus:

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ൽ അപനനഷണണ നടത യ തയൽ "സൂചന 1 പകകരമള അപപകയയ തകങളടട അധധനതയയലലകത സലതത നടതയയയടള മതയൽ നയമകണണ അനധയകതമകടണനതർ പബകധധ്യടപ്പെടയടളതകയയ സൂചന 2 പകകരണ ഈ ഓഫധസയൽ അറയയയപ്പെത ലഭയചയടണത. ആയതയനകൽ പകരളക പഞകയതത രകജത ആകത 235 ഡബബ പകകരണ പമൽ നയമകണണർ ഈ കതത കകപ്പെറയ 15 ദയവസതയനളയൽ ടപകളയചത നധപകണതണ പസത വയവരണ ഈ ഓഫധസയൽ പരഖകമലണ അറയയയപകണതമകണത. അലകതപകണ പമൽ ആകത പകകരണ അനധയകതമകയയ നയമകണണ നടതർ യ മതയൽ ഈ ഓഫധസയൽ നയനണ ടപകളയചത മകറനതകടണനണ അതയനപവണയ വരന ടചലവത തകങളയൽ നയനണ ഈടകകനതകടണനണ തകങടള ഇതയനകൽ അറ യ യകന".

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Ext.P6 cannot be accepted as a provisional order cum show cause notice falling under Secti on 235W(1) of the Act, for the same directs the petitioner to demolish the alleged unauthorised construction straight away without affording the petitioner an opportunity to show cause against the proposed decision of the Panchayat to demolish the said construction. Coming to Ext.P8 order, the same is one issued without considering the objection raised by the petitioner in Ext.P7 reply and without affording the petitioner an opportunity of hearing. Ext.P6 notice and Ext.P8 order, in the circumstances, are liable to be interfered with.

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In the result, the writ petition is allowed and Ext.P6

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WP(C).No.20867 OF 2020(G)

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notice and Ext.P8 order are quashed. It is, however, made clear that this order will not preclude the Panchayat from initiating proceedings in respect of the alleged unauthorised construction referred to in Ext.P6 notice and Ext.P8 order in accordance with Section 235W of the Act after affording the petitioner an opportunity of hearing. All other contentions of the parties are left open.

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Sd/P.B.SURESH KUMAR, JUDGE.

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WP(C).No.20867 OF 2020(G)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 8.3.2016 FILED BY THE RESPONDENTS 4 AND 5

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EXHIBIT P2 TRUE COPY OF THE REPORTS OF THE VILLAGE OFFICER DATED 20.08.2015. EXHIBIT P3 TRUE COPY OF THE REPORTS OF THE TAHASILDAR KOCHI DATED 19.04.2016 SUBMITTED TO THE SUB COLLECTOR FORT KOCHI. EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT KOCHI IN I.A. NO.1099/2016 IN O.S. NO.138/2016. EXHIBIT P5 TRUE COPY OF THE PRINT OUT OF THE PROCEEDINGS IN O.S.138/2016 DATED 6.11.2019 OF THE MUNSIFF COURT KOCHI. EXHIBIT P6 TRUE COPY OF THE NOTICE DATE 3.09.2020 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE REPLY DATED 8/9/2020 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P7(a) TRUE COPY OF THE ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF THE EXT.P7 REPLY NOTICE BY THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE FINAL ORDER DATED 29.09.2020 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

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RESPONDENTS' EXHIBITS:

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EXHIBIT-R3(A) A TRUE COPY OF THE LETTER NO.ADPEKM/31/2020-PA2 DATED 12/08/2020 ISSUED BY THE DEPUTY DIRECTOR OF

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WP(C).No.20867 OF 2020(G)

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PANCHAYAT TO THE 3RD RESPONDENT

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EXHIBIT	R3(B) A TRUE COPY OF THE 8134/2020 DATED 3/0 THE 3RD RESPONDENT	ORDER NO.B4 9/2020 ISSUED BY TO THE PETITIONER
EXHIBIT	R3(C) A TRUE COPY OF THE 08/09/2020 ISSUED T RESPONDENT BY ADVOC	REPLY DATED O THE 3RD ATE JACOB JEORGE
EXHIBIT	R3(D) A TRUE COPY OF THE 21510/2015 DATED 19 BY THE TAHSILDAR, K COLLECTOR FORT KOCH	REPORT NO.S2- /04/2016 SUBMITTED OCHI TO THE SUB I
EXHIBIT	R3(E) A TRUE COPY OF THE BY THE SECRETARY OF GRAMA PANCHAYAT ON	COMPLAINT RECEIVED THE NAYARAMBALAM 13/12/2019
EXHIBIT	R3(F) A TRUE COPY OF THE THE 3RD RESPONDENT	STOP MEMO ISSUED BY TO THE PETITIONER
EXHIBIT	R3(G) A TRUE COPY OF THE 6/02/2019 SUBMITTED COMMISSIONER IN OS	REPORT DATED BY ADVOCATE NO.138 OF 2016
EXHIBIT	R3(H) A TRUE COPY OF THE COMMISSIONERS REPOR SUBMITTED BEFORE TH KOCHI IN OS NO.138/	ADVOCATE T DATED 6/8/2019 E MUNSIFF'S COURT 2016
EXHIBIT	R3(I) A TRUE COPY OF THE NO.B4/8134/2020 DAT	FINAL ORDER ED 29/9/2020

Vincy Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vincy Varghese v. State of Kerala

Case brief

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