Writ petition challenging the Tribunal's order restoring a building permit cancelled by the Panchayat without prior notice or hearing. Court analyzed procedural violations under the Panchayat Building Rules and Notices Rules. Dismissed the writ petition finding no illegality in the Tribunal order.
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.P.(Civil). No.30446 of 2016 1
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 17TH DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943
WP(C) NO. 30446 OF 2016
PETITIONERS:
KULAKKADA GRAMA PANCHAYATH,
1 MAVADY P.O., PUTHOOR VIA, KOLLAM DISTRICT, REPRESENTED BY ITS SECRETARY.
THE SECRETARY, 2 KULAKKADA GRAMA PANCHAYATH,KOTTARAKARA, KOLLAM DISTRICT.
BY ADV SRI.ALEXANDER GEORGE
RESPONDENTS:
SABU THOMAS, AGED 45 YEARS, S/O. OOMMAN THOMAS,SOUMYALAYAM, 1 POOVATTOOR EAST,KALAYAPURAM P.O., KOTTARAKARA,KOLLAM DISTRICT - 691 523.
THE VILLAGE OFFICER, 2 KULAKKADA VILLAGE OFFICE, KULAKKADA,KOTTARAKARA TALUK, KOLLAM - 691 521. THE TRIBUNAL FOR THE LOCAL SELF GOVERNMENT 3 INSTITUTIONS,THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY,PIN - 695 001.
W.P.(Civil). No.30446 of 2016 2
BY ADVS. SRI.ARUN BOSE SRI.B.BIPIN SRI.R.REJI SRI.M.V.THAMBAN SMT.THARA THAMBAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(Civil). No.30446 of 2016 3
"C.R."
VIJU ABRAHAM, J.
..............................................
W.P.(C). No.30446 of 2016
...............................................
Dated this the 17th day of November, 2021
JUDGMENT
Above writ petition is filed challenging Ext.P9 order passed by the 3rd respondent Tribunal for Local Self Government Institutions, in Appeal No. 337 of 2015, whereby the order passed by the 2nd petitioner, cancelling Ext.P1 building permit issued in favour of the 1st respondent was set aside.
The 1st respondent filed an application before the 2nd petitioner for issuance of a building permit for construction of a vehicle service station and pursuant to the same Ext.P1 building permit was issued on 16.12.2014. On the strength of Ext.P1 building permit, 1st respondent undertook the
W.P.(Civil). No.30446 of 2016 4
construction work. While so, Ext.P2 notice dated 26.3.2015 was affixed by the petitioners at the construction site of the 1st respondent intimating that Ext.P1 building permit issued to the 1st respondent is cancelled and that no construction shall be undertaken at the site. After issuance of Ext.P2, a major portion of the building constructed by the 1st respondent was demolished by the petitioners. Challenging Ext.P2, the 1st respondent filed Ext.P3 appeal before the 3rd respondent, Tribunal for Local Self Government Institutions. The petitioners herein filed a detailed written statement before the Tribunal mainly contending that it was by a mistake that Ext.P1 building permit was issued in favour of the 1st respondent for construction of a service station and that on 16.2.2015 Ext.P4 stop memo was issued by the 2nd respondent Village Officer and thereafter, on 18.2.2015 the 2nd petitioner also issued Ext.P5 stop memo directing the 1st respondent to stop all construction in the property. Thereafter, Ext.P7 notice was issued by the 2nd petitioner on 27.03.2015 directing to demolish the unauthorized construction within a period of 7
W.P.(Civil). No.30446 of 2016 5
days failing which steps to demolish the unauthorised construction will be taken by the Panchayath. A further notice was issued on 28.03.2015 as Ext.P8 directing the 1st respondent to demolish the unauthorised construction within 24 hours and in the event of failure to do so, the Panchayath will take steps to demolish the same.
W.P.(Civil). No.30446 of 2016 6
the Tribunal in Ext.P9 order. Ext.P1 building permit was issued after due inspection and verification of the documents and on the strength of the report by the overseer of the 1st petitioner panchayat and that there is no misrepresentation by the 1st respondent as alleged in Ext.P5 notice. Ext.P2 notice was not served on him in person, instead the same was affixed at the construction site, and therefore notice was not served as prescribed in Rule 3 of the Kerala Panchayath Raj (Manner of Service of Notices) Rules, 1996. It was further contended that Ext.P1 permit was cancelled without issuing a show-cause notice and without affording an opportunity of being heard and therefore the same has been done in utter violation of Rule 18 of the Kerala Panchayath Building Rules, 2011. Since the cancellation of the permit was not in accordance with the law, Ext.P9 order issued by the Tribunal interfering with the same, is perfectly legal and valid and therefore prayed for dismissal of the Writ Petition.
W.P.(Civil). No.30446 of 2016 7
learned counsel appearing for the 1st respondent.
" 18. Suspension and Revocation of permit - The Secretary shall stay, suspend or revoke any permit issued under these rules if it is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation of fact or law or that the
W.P.(Civil). No.30446 of 2016 8
construction if carried on will be a threat to life or property: Provided that before revoking permit, the owner of the permit shall be given 7 days notice, and an opportunity of being heard to explain and the explanation shall be duly considered by the Secretary. " [underline supplied]
It is clear from a reading of Rule 18 that before cancelling/revoking a permit, the owner of the permit shall be given 7 days notice and an opportunity of being heard to explain and that the said explanation should be duly considered by the Secretary. Admittedly, the cancellation of Ext.P1 permit was without any notice and without affording any opportunity of being heard to the 1st respondent. It is only in Ext.P2 notice that the 1st respondent is informed that Ext.P1 permit dated 16.12.2014 granted in his favour is cancelled w.e.f. from the date of issuance of the same. There is no averment in the present writ petition or before the Tribunal that any notice was issued or any opportunity of hearing was granted to the 1st respondent before cancellation of Ext.P1 permit.
W.P.(Civil). No.30446 of 2016 9
that no provisional order as contemplated under Rule 20 of the Kerala Panchayat Building Rules, 2011 was issued before undertaking demolition of the construction made by the 1st respondent on the strength of Ext.P1 building permit. While dealing with the said issue it is profitable to refer to Section 235W of the Panchayat Raj Act,1994 along with Rule 20 of the Kerala Panchayat Building Rules, 2011 since both provisions deal with similar situations. Section 235W of the Panchayat Raj Act,1994 mandates that when the Secretary is satisfied that any construction activity is undertaken in contravention of any of the provisions of the Act or any Rule or bylaw or order, shall make a provisional order together with a notice requiring the owner or the person for whom such work is done why the order should not be confirmed. As per Clause 3 of Section 235W, only after complying with the procedure as stated above, that the Secretary can confirm the provisional order and take further steps to cause the demolition of the unauthorised construction. A similar provision is incorporated in Rule 20 of the Kerala Panchayat Building Rules also which
W.P.(Civil). No.30446 of 2016 10
mandates issuance of a provisional order along with a notice requiring him to show cause within 7 days why the order should not be confirmed and only after considering the reply to show cause, the Secretary may confirm the order and take consequential steps including demolition of the unauthorised construction. A perusal of Ext.P7 notice dated 27.3.2015, which is claimed by the petitioners to be a provisional order issued under Section 235W (1) (2) of the Act will show that direction is issued to remove the unauthorised construction within a period of 7 days. The said notice cannot be considered as a notice as contemplated under Section 235W of the Act or Rule 20 of the Kerala Panchayat Building Rules, 2011 as the said provisions mandates issuance of a provisional order along with a notice requiring to show cause within a reasonable time why the order should not be confirmed. Moreover, on the next day of the issuance of Ext.P7, i.e on 28.3.2015 a further notice was issued to the 1st respondent as Ext. P8 intimating that a decision has been taken in the Panchayat Committee held on 28.3.2015 to demolish the unauthorised construction within 24
W.P.(Civil). No.30446 of 2016 11
hours and therefore, the 1st respondent was directed to demolish the construction within the said time limit and in the event of non-compliance of the said direction, construction effected by the 1st respondent will be demolished directly by the Panchayat. As per the averment in the writ petition as well
as in the counter affidavit filed by the 1st respondent, on 30.3.2015 the petitioners with the assistance of several political party workers have demolished a major portion of the building constructed by the 1st respondent, and that on the very next day the materials used for the construction was attempted to be put on auction sale. Thus, it is clear that the action initiated by the petitioners is in total violation of the provisions of the Act as well as the Rules and in total disregard of the principles of natural justice.
W.P.(Civil). No.30446 of 2016 12
Union of India, [(1981) 1 SCC 664] the Apex Court held as follows:
"29. In A.K. Kraipak case [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619] , the court also quoted with approval the observations of Lord Parker from the Queen's Bench decision in In re H.K. (Infants) [AIR 1967 SC 1269 : (1967) 2 SCR 625] ; which were to the effect, that good administration and an honest or bona fide decision require not merely impartiality or merely bringing one's mind to bear on the problem, but acting fairly. Thus irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial, a duty to act fairly, that is, in consonance with the fundamental principles of substantive justice is generally implied, because the presumption is that in a democratic polity wedded to the rule of law, the State or the legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly.
………..
…………
32.The maxim audi alteram partem has many facets. Two of them are: (a) notice of the case to be met; and (b) opportunity to explain. This rule is universally respected and duty to afford a fair hearing in Lord Lore-burn's oftquoted language, is “a duty lying upon everyone who decides something”, in the exercise of legal power. The rule cannot be sacrificed at the altar of administrative
W.P.(Civil). No.30446 of 2016 13
convenience or celerity; for, “convenience and justice” — as Lord Atkin felicitously put it — “are often not on speaking terms [General Medical Council v. Spackman, 1943 AC 627, 638] ”. (underline supplied)
9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. (underline supplied)
W.P.(Civil). No.30446 of 2016 14
cancellation of Ext.P1 building permit is in clear violation of Rule 18 of the Kerala Panchayat Building Rules, 2011 and therefore arbitrary and unjust.
"3. Serving of notice - (1) In case the Act or rules or bye-laws made thereunder requires the Panchayat to serve any notice or document to a person, such service or sending shall, unless otherwise provided in the Act or rules or bye-laws made thereunder, be done,-
(a) by service or sending of notice or document to such person; or
(b) if such person cannot found out, by leaving such notice or document at his last known place of abode or business or by entrusting the same to some adult member or servant of his family and in the case of employees working in firms, factories, plants and workshops where admission to notice server is prohibited or where service of notice cannot be possible in the ordinary course, by entrusting the same to the head of the institution or to any authorised person; or
(c) if such person's address elsewhere is known to the Secretary, by sending the same to that address by registered post; or
W.P.(Civil). No.30446 of 2016 15
(2) It shall not be necessary to name the owner or occupier in the notice, if such notice is regarding any building or land and in the case of joint owners and joint occupiers it shall be sufficient if the notice is served or sent to anyone of such person.
(3) Any bill, notice, order, form summons, demand notice or other document served or sent under the Act or the rules made thereunder, if so provides that any fee or other sum shall be remitted or any work shall be executed, or anything shall be paid within such period fixed therein, then unless the Act or rules or bye-laws provides to the contrary, such period shall be calculated from the date of such service or sending.
(4) In the case of refusal of a notice, the date of refusal shall be deemed to be the date of service." (underline supplied)
Going by the said Rule, service of notice by affixture could be sought only if service of notice could not be carried out in any of the manner as prescribed in Clauses (a), (b), and (c) of Rule 3 (1) of the Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996. It is admitted by the petitioners that Ext.P2 notice was affixed at the construction site. There is no averment in the writ petition that any of the other modes of service of notice as contemplated in Rule 3(1) was attempted before service of notice by affixture or there was any difficulty
W.P.(Civil). No.30446 of 2016 16
in serving notice in any of the modes as prescribed in Clauses (a), (b) and (c) of Rule 3 (1). The non-service of notice as contemplated as per the Rules assumes importance in the light of the contention of the 1st respondent that undue haste has been shown in the action initiated by the petitioners as against him. Cancellation of Exhibit P1 building permit without following the procedure as provided in Rule 18 of the Kerala Panchayat Building Rules coupled with the fact that Ext.P2 notice was issued not in accordance with Rule 3(1) of Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996 will fortify the contention of the 1st respondent that the whole action of the petitioners was done in a hasty manner without complying with any of the mandatory provisions as contemplated by the Act and the Rules. This Court in B.B.P. Properties (P) Ltd v. Chengamandadu Grama Panchayat (2010 (1) KLT 306) while considering Rule 3 of Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996, though in a different context, for deciding the question as to whether if personal service of notice is not effective, can
W.P.(Civil). No.30446 of 2016 17
notice of rejection of application be issued by registered post or ordinary post held that when notices which have a bearing on the right of parties, including those with penal consequences, or resulting in deprivation of rights by rejecting application and claims are issued, it has to be by registered post. In the present case, the petitioners do not have a case that they have even tried to serve notice in person or through registered post. The petitioners have issued a notice by affixture intimating the cancellation of the permit in a very casual manner even without following any of the procedures contemplated as per the Act and Rules and such drastic action has caused serious consequence to the 1st respondent. Therefore, in the facts and circumstances of this case as enumerated above, the issuance of Ext.P2 notice cannot be said to be in accordance with the law.
W.P.(Civil). No.30446 of 2016 18
of the petitioners by making it clear that if the situation so requires, the 2nd petitioner is at liberty to initiate appropriate fresh proceedings as per law against the 1st respondent notwithstanding the issuance of Ext.P9 order.
In view of the above, I do not find any illegality in Ext.P9 order issued by the 3rd respondent Tribunal, and consequently, the above writ petition is dismissed.
Sd/-
VIJU ABRAHAM, JUDGE
pm
W.P.(Civil). No.30446 of 2016 19
APPENDIX OF WP(C) 30446/2016
PETITIONERS EXHIBITS:
| THE TRUE COPY OF | THE BUILDING PERMIT | |
|---|---|---|
| P1 | DATED 16.12.2014 PETITIONER. |
ISSUED BY THE SECOND |
| THE TRUE COPY OF | THE ORDER DATED | |
| P2 | 26.3.2014 ISSUED PETITIONER. |
BY THE SECOND |
| THE TRUE COPY OF | THE APPEAL NO. 337/2015 | |
| P3 | FILED BY THE FIR THIRD RESPONDENT |
ST RESPONDENT BEFORE THE . |
| THE TRUE COPY OF | THE STOP MEMO DATED | |
| P4 | 16.2.2015 ISSUED RESPONDENT. |
BY THE SECOND |
| THE TRUE COPY OF | THE STOP MEMO DATED | |
| P5 | 18.2.2015 ISSUED PETITIONER. |
BY THE SECOND |
| THE TRUE COPY OF | THE WRITTEN STATEMENT | |
| P6 | FILED BY THE PET NO. 337/2015. |
ITIONERS IN THE APPEAL |
| THE TRUE COPY OF | THE SHOW CAUSE NOTICE | |
| P7 | DATED 27.3.2015 PETITIONER. |
ISSUED BY THE SECOND |
| P8 | THE TRUE COPY OF DATED 28.3.2015 |
THE SHOW CASUE NOTICE ISSUED BY THE SECOND |
W.P.(Civil). No.30446 of 2016 20
PETITIONER.
THE TRUE COPY OF THE ORDER PASSED BY THE P9 TRIBUNAL IN APPEAL 337/2015 DATED 20.6.2016.
RESPONDENTS EXHIBITS : NIL
3 issues framed by the court
Whether cancellation of the building permit violated Rule 18 of the Kerala Panchayat Building Rules, 2011 regarding notice and hearing.
Whether the notice of cancellation was issued in accordance with Rule 3 of the Kerala Panchayath Raj (Manner of Service of Notices) Rules, 1996.
Whether the Tribunal erred in setting aside the cancellation order and restoring the permit.
Colour shows how this judgement treated each authority
Swadeshi Cotton Mills v. Union of IndiaApplied¶56
Swadeshi Cotton Mills v. Union of India, [(1981) 1 SCC 664] · Who else cites this
K.A. Kraipak v. Union of IndiaReferred¶56
K.A. Kraipak v. Union of India, [(1975) 1 SCC 421] · Who else cites this
Basudeo Tiwary v. Sido Kanhu UniversityApplied¶62
Basudeo Tiwary v. Sido Kanhu University, [(1998) 8 SCC 194] · Who else cites this
B.B.P. Properties (P) Ltd v. Chengamandadu Grama PanchayathReferred¶79
B.B.P. Properties (P) Ltd v. Chengamandadu Grama Panchayat, (2010 (1) KLT 306)
2 provisions across 2 enactments
KULAKKADA GRAMA PANCHAYATH
SABU THOMAS
THE VILLAGE OFFICER, KULAKKADA
THE TRIBUNAL FOR THE LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM
VIJU ABRAHAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
