Dismissed

Salvin Poulose v. Parappukkara Grama Panchayat

Kerala HC7 Oct 2022WA/1404/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against the dismissal of a writ petition. The appellant sought approval to number a completed commercial building. The single judge had refused numbering due to a violation of statutory setback rules from a national highway, distinguishing the case from a precedent where indulgence was granted. The full bench upheld the rejection, stating statutory mand

What did the court decide?

The writ appeal was dismissed upholding the lower court's refusal to number the building due to violation of setback rules.

Salvin Poulose Vs Parappukkara Grama Panchayat — Landlord and Tenant | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

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WA NO. 1404 OF 2022

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AGAINST THE JUDGMENT WP(C) 31599/2019 OF HIGH COURT OF
KERALA DATED 10.3.2022

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APPELLANT/PETITIONER:

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SALVIN POULOSE

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AGED 34 YEARS, S/O. POULOSE,
CHETTITHODAN HOUSE, ANNANAD P.O..
KADUKUTTY, THRISSUR DISTRICT, PIN 680 309.

¶11

BY ADVS.
R.LAKSHMI NARAYAN
C.M.NAZAR

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RESPONDENTS/RESPONDENTS IN WP(C):

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1 PARAPPUKKARA GRAMA PANCHAYAT NANDHIKKARA, THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY, PIN 680 320.

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2 THE DEPUTY DIRECTOR OF PANCHAYATS, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN 680 003.

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BY ADV M.R.REENA

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

W.A.1404/2022

J U D G M E N T

Dated this the 7^th day of October, 2022

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S. Manikumar, CJ.

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Before the writ court, petitioner has sought for the following reliefs:

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“(i) Call for the records leading to the case.

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(ii) Issue a Writ of Certiorari quashing Exts.P4, P6 & P6(a). ii(a) Issue a Writ of Certiorari quashing Ext.P8.

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(iii) Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondents to take immediate action on the application and also Ext.P7 representation submitted by the petitioner for numbering the building, which has been constructed as per Ext.P1 building permit, and number it for commercial use, at the earliest.

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(iv) Issue a declaration that the petitioner's building, which is constructed in three cents of land, will come under the provisions for construction in small plots and that the rule applicable for set back is under Rule 64 Kerala Panchayat Building Rules, 2011.”

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Short facts leading to filing of the writ petition are as

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under:

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2.1. Petitioner has constructed a three storied commercial

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building with a plinth area of 263.92 m and height less than 10

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W.A.1404/2022

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meters in a small plot of land, having an extent of 3.383 cents, as per Ext.P1 permit of the Parappukkara Grama Panchayat, 1^st respondent. Upon completion, the petitioner approached the 1^st respondent with an application for numbering it. Exhibit P2 is the relevant portion of the site plan.

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2.2. Though the application was made on 26.04.2019, so far it is not numbered. Instead, Exhibit P4 letter dated 04.06.2019 was issued along with a report of the Overseer pointing out certain defects. Thereafter, the petitioner has made necessary alterations and modifications. Pursuant to that, the matter was placed in the District Adalat and the petitioner was issued Exhibit P5 notice to attend the Adalat held on 23.07.2019. After two months, the petitioner was issued with Exhibits P6 & P6(a) notices asking him to rectify the defects as pointed out by the Overseer.

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2.3. In Exhibit P6(a), addressed to the 1^st respondent, the 2^nd respondent has sought clarity as to the violations pointed out in the report. Though the 1^st respondent was directed to issue necessary instructions to the petitioner, nothing was intimated. Exhibit P6 has been issued only to prolong the matter and on

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W.A.1404/2022

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vague terms. As stated, the petitioner has complied with all the conditions and rules, as applicable under the Kerala Panchayat Building Rules, 2011. It is clear from Exhibit P2 site plan that the petitioner has maintained sufficient distance on all the four sides. In the case of buildings in small plots which is applicable to the petitioner also, the rear side need only an average depth of 1.00 meter with minimum 0.50 meter. But that benefit of the rule was not extended to the petitioners building. In view of the above, the petitioner submitted Exhibit P7 representation to the 1^st respondent requesting to have a reasonable approach in the matter and number the building at the earliest. The petitioner has invested huge amount by availing loan and also personal loans. Hence the writ petition.

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Exhibit P4 letter dated 4.6.2019 issued by Parappukkara Grama Panchayat with the report of the Overseer, Exhibit P6 notice dated 20.9.2019 issued by the 1^st respondent Panchayat, Exhibit P6(a) letter dated 19.9.2019 issued by the Deputy Director of Panchayats, Thrissur and Exhibit P8 notice dated 7.12.2019 issued by the respondent Panchayat are sought to be quashed.

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W.A.1404/2022

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4. Translated version of which are reproduced:

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Exhibit P4

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“PARAPPUKKARA GRAMAPANCHAYATH

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e-mail-parappukkaragp@gmail

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Ph- 2721272

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---------------------------------------------------------------------------No. A4-4266/19 Date: 04/06/2019

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From,

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Secretary Parappukkara Grama Panchayath, Nandhikkara, Thrissur District.

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To,

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Salvin Poulose, Chettithodan House, Kadukutty.

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Sir,

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Sub: KPBR-Defect in application to grant building number-Reg.

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Reference: 1) Your application dated 26/04/2019

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It is reported by the overseer that there are detects in your application in reference no. 1, it is to inform you that your application will be considered on curing those defects.

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Enclosure:- Copy of the overseer report.

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Yours faithfully,

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Secretary, Parappukkara Grama Panchayath

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REPORT

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The following report is submitted after examining the plot and file on receiving application stating that building construction is completed in 3.38 cents of property in Survey No. I032/2 in

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W.A.1404/2022

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Parappulkkara Village, Annanadu Desom owned by Salvin Poulose, S/o. Poulose, Chettithodan House with GF+ FF+ SF+ Stare room (Group F)

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Front portion of the building is completed the distance as per Rule 27(3).

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Distance is completed as per Rule 58.1 (a) on both sides of the building but it is prohibited to make window, door, and ventilator in set back below 1.50 meter a door access is seen there to generator room.

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Permit was granted complying necessary distance as per Rule 58/2 but there is no space as per Rules after completion.

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Rule 28/1 there is only distance of 2.40 meters from the eastern corner of the building to side NH Road.

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Rule 35/2 a coverage of 60.55 % is seen were 55% is needed.

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Rule 38/2 mechanical parking is shown because of the scarcity of space from car parking in completion plan, but it is not seen constructed.

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Rule 38/4 there is no space reserved for two wheeler parking.

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Rule 57 light and ventilation facility are not seen completed with.

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Rule 56/7 though necessary toilets are seen in completion plan. They are not seen constructed.

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Rule 58/12 though initial NOC has been received from Fire Force Department no steps are seen to get the final NOC.

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Rule 101/102 Rain water tank is not seen constructed.

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Rule 104 (1 to 7) facilities for differently abled persons including parking are not seen complied.

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Further permit was issued including basement floor as parking floor it is seen that portion is made part of building there is no mention on this in this completion plan.”

W.A.1404/2022

Exhibit P6

“PARAPPUKKARA GRAMA PANCHAYATH

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e-mail-parappukkaragp@gmail. com Ph- 2721272

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----------------------------------------------------------------------------No. A4-4266/19 Date: 20/09/2019

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From,

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Secretary Parappukkara Grama Panchayath, Nandhikkara, Thrissur District.

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To,

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Salvin Poulose, Chettithodan House, Kadukutty.

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Sir,

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Sub: KPBR- Decision in District Adalat in respect of allotting building no.- Reg. Reference:- 1) Your application dtd. 26/04/2019

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Letter of this office with the same no. dtd. 4/6/19 3) Letter No. File No. DDP-TSR/3623/2019- G2 dtd 19/9/19.

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Since there were defects in the application submitted by you in item no.I in reference, letter has been issued to you as per reference no. 2. In the District Adalat held on 23/7/19 considered your application and issued direction to direct you to cure the detects, as per reference no. 3. So you are informed to cure the defects, as per letter in reference no. 3.

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Enclosure:- Copy of letter in reference no. 3

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Yours faithfully,

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Signature AJITHA K Secretary, Parappukkara Grama Panchayath”

W.A.1404/2022

Exhibit P6(a)

OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH THRISSUR

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Ayyanthol.P. O., PIN- 680 003 Phone No. 0487- 2360616, E-mail: [email protected]

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Date:- 19/09/2019

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From,

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Deputy Director of Panchayath, Thrissur.

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To,

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Secretary, Parappukkara Grama Panchayath.

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Sir

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Sub- Complaint as to none providing building No. by Adalat. Ref. :- Your letter No. A4/4266/19 dtd. 29/8/19

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Attention is invited to the letter in reference. It is reported by the Asst. Engineer that building completed by Sri. Salvin Poulose, Chettithodan (FH), Nandhikkara, that there is no sufficient space as per Rule in the back side of the building. It has not been reported what is the extent. It is also reported that, distance from the NH also has not been complied with as per serial No, 4. The applicant shall be directed to cure the defects and on getting report. Thus steps are to be taken to provide building no.

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JOY JOHN, DDP-DDPTSR, O/O DDP DDPTSR Deputy Director of Panchayath, Thrissur.

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Copy to Salvin Poulose, Chettithodan (H), Nandhikkara.P.O

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Signature AJITHA K Secretary,

W.A.1404/2022

Office Seal

Parappukkara Grama Panchayath Ph 0480- 2751272, Mob:-9496046141”

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Exhibit P8

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“PARAPPUKKARA GRAMA PANCHAYATH

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e-mail-parappukkaragp@gmail. com Ph- 2721272

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----------------------------------------------------------------------------No. A4-4266/19 Date: 20/09/2019

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From,

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Secretary Parappukkara Grama Panchayath, Nandhikkara, Thrissur District.

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To,

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Salvin Poulose, Chettithodan House, Kadukutty.

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Sir,

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Sub: KPBR- Parappukkara Grama Panchayath - allotting building no.- Reg. Ref :- 1) Application submitted by you in this office on 26/04/2019

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Letter of this office dtd. 29/9/19

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Application submitted by you in the Panchayat dtd 6/2/19.

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Attention is invited to the subject above. As per your information directly in the office of the Panchayath on 4/12/19 as to curing the defects in constructions & inspection was conducted by the LSGD Asst. Engineer and defects have been reported. Sending defects herewith. It is informed that building no. will be provided on getting defects cured.

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Enclosure: Report of Asst. Engineer.

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Yours faithfully, Signature

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W.A.1404/2022

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Secretary, Office Seal Parappukkara Grama Panchayath”

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REPORT

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Report of site inspection conducted as per the direction of the secretary on 4/12/19.

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Rule 58-1 (a) both sides of the building are in conformity with the permit. Sides at back is needed 1.5 meter. Since one side is 1 meter no door and windows shall be there, But door of generator room was there. It is seen that those are closed. These defects cured.

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Rule 38/2 there shall be a distance of 1.5 meter on the back side but 1.05 meter only seen.

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Rule 28/1 the distance of 2.4 meter is seen from the southern corner portion of the building to NH road (should be 3 meter)

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Rule 35/2 where 55% coverage is needed, 60.55 is seen.

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Rule 38/2 since there is scarcity of space for car parking it was inferred by applicant that mechanical parking would be provided. But such construction is not seen commenced.

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1. Rule 38/4 no specific places seen for two wheeler parking.

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1. Rule 57 light and ventilation facilities are not complied with.

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1. Rule 56/7 construction of 5 toilets are seen commenced.

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Rule 58/12 final NOC from Fire Department is not received.

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Rule 101/102 construction is seen commenced for Rain water.

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Rule 104/ 1 to 7 though ramp is provide for facilities to differently abled there is no gradient with clear 1:2 further, parking facilities are not complied with.

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Basement floor is seen as parking floor, No clear information received on it.

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Report is submitted for further action.

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W.A.1404/2022

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¶149

Signature	Signature
Overseer Gr.I	Assistant Engineer
Parappukkara G.P.	L.S.G.D. Section Parappukkara Grama Panchayat”

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After considering the rival submissions, writ court, vide judgment dated 10.3.2022 in W.P(C).No.31599/2019, declined the relief sought for.

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Relevant paragraphs of the judgment are reproduced:

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It is submitted by the learned counsel for the petitioner that the petitioner had been granted Ext.P1 building permit and had constructed a building in his property on the basis of the same. However, it is submitted that the 1st respondent is refusing to number the building and has pointed out several defects in the completion plan. Finally, it is submitted that the contention now raised is with regard to the shortage of set back from the National Highway in one corner of the petitioner's building where the set back is only 2.4 metres from the National Highway. The learned counsel for the petitioner submits that it is only a corner of the building and that the petitioner may be permitted to occupy the building which has already been completed. The learned counsel for the petitioner submits that there has been no violation or deviation from the building permit.

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The 1^st respondent has placed a detailed counter affidavit on record. It is submitted that the petitioner had obtained the building permit showing a distance of 3.20 metres from the corner of the building to the boundary of his property. It is submitted that after construction, it is found that the distance from the front corner of the building to the road is only 2.40 metres. It is submitted that the road in front of the petitioner's property is a National Highway and that the petitioner's building is constructed at a distance of only 2.40 metres from the service road abutting the National Highway.

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W.A.1404/2022

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It is, therefore, contended that the Panchayat is unable to take any further steps in the matter without rectification of the said defect.

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The learned counsel for the petitioner relies on a decision of this Court in W.P.(C) No.34617/2018. Relying on and construing the provisions of Rule 28(1) of the Kerala Panchayat Building Rules, this Court had held that since the construction is completed and since the petitioner has a case that the building was constructed in accordance with the permit and approved plan, a leniency is to be shown to the petitioner.

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However, in the instant case, it is the specific case of the learned counsel appearing for the respondent Panchayat that Ext.P1 building permit shows a distance of 3.20 metres from the edge of the building to the boundary of the property and it was on that basis that the building permit had been issued to the petitioner. The Panchayat would have no authority to permit or regularise a construction against the specific provisions of the Act and the Rules.

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In the above view of the matter, I am of the opinion that the decision cited by the petitioner is not applicable to the facts of this case. However, in case the petitioner submits a revised completion plan, after rectifying the defects, the same can be considered in accordance with law. Reserving such liberty, this writ petition is closed.

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Being aggrieved, instant writ appeal is filed.

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Though by inviting attention of this Court to Annexure A2 sketch prepared by Parappukkara Grama Panchayat, Mr. R. Lakshmi Narayan, learned counsel for the appellant submitted that the distance between the building and the National Highway road is 3.20m at one place and therefore, there is no violation of

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W.A.1404/2022

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Section 220(b) of Kerala Panchayat Raj Act, 1994 and rule 27(5) of the Kerala Panchayat Building Rules, 2011 and also relied on the decision of a learned Single Judge (Hon’ble Mr. Justice Shaji P. Chaly) in W.P(C).No.34617 of 2018 dated 12.11.2018 and sought for interference with the impugned judgment in W.P(C). No.31599 of 2019, we are not inclined to interfere with the impugned judgment, for the reason that even perusal of Annexure A2 makes it clear that at one place, the distance between the building constructed by the appellant and the service road is 2.4 m.

¶165

Section 27(5) of Kerala Panchayat Building Rules, 2011 being relevant, is extracted hereunder:

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“(5) Every building up to 10 metres in height shall have open air space of not less than 1.2 metres width on one of its sides other than the front and rear and not less than 1 metre on the other side.”

¶167

When there is a mandate provided regarding distance between road and the building, the same cannot be directed to be violated. As regard the judgment in W.P(C)No.34617 of 2018 dated 12.11.2018, perusal of the same shows that taking note of the peculiar circumstances of the said case, indulgence has been

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W.A.1404/2022

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granted by directing the petitioner therein to remit a sum of Rs.50,000/- as fine to the Panchayat within a specified time.

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The said judgment cannot be taken as a precedent to

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be made applicable in every case wherein violation of the statutory rule and more so, distance to be maintained between the road and the building are specified in the statute. Writ court has considered the statutory provisions and also the decision stated supra. Violation of the statutory provisions is per se apparent.

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For the reasons stated supra, we are not inclined to interfere with the impugned judgment. Hence writ appeal is

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dismissed.

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Sd/S. Manikumar, Chief Justice

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Sd/Shaji P. Chaly, Judge

sou.

W.A.1404/2022

APPENDIX OF WA 1404/2022

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PETITIONER ANNEXURES

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`Annexure A1`	`MEMORANDUM` `398/2022 IN`	`OF REVIEW PETITION IN RP` `W.P(C) 31599 OF 2019.`
`Annexure A2`	`ADDITIONAL` `RESPONDENT` `OF 2019.`	`COUNTER AFFIDAVIT FILED BY 1`^ST `IN R.P 398/2022 IN W.P(C) 31599`
`Annexure A3`	`REPLY AFFI` `R.P 398/202`	`DAVIT FILED BY THE PETITIONER IN` `2 IN W.P(C) 31599 OF 2019.`
`Annexure A4`	`TRUE COPY` `W.P(C) 3159`	`OF JUDGMENT IN R.P 398/2022 IN` `9 OF 2019.`

Salvin Poulose v. Parappukkara Grama Panchayat

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Salvin Poulose v. Parappukkara Grama Panchayat

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