Dismissed

Perumkadavila Grama Panchayath v. the Secretary, Marayamuttom Service Co-Op Society Ltd.No.

Kerala HC10 Oct 2023WA/2057/2015

Case brief

AI extract

What is this about?

This writ appeal was dismissed by the Kerala High Court. The court upheld the Tribunal's finding that a deemed building permit accrued to a Co-operative Society because the Panchayat failed to pass an order and communicate its decision on a permit application within the statutory 30-day period under the Kerala Panchayat Raj Act.

What did the court decide?

No relief granted.

Perumkadavila Grama Panchayath Vs the Secretary… — Service and Employment | Kerala HC (2023)

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W. A. No. 2057 of 2015

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 10TH DAY OF OCTOBER 2023 / 18TH ASWINA, 1945

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WA NO. 2057 OF 2015

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AGAINST THE JUDGMENT WPC 4201/2015 OF HIGH COURT OF KERALA
APPELLANT/S:

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1 PERUMKADAVILA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY.

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2THE SECRETARY
PERUMKADAVILA GRAMA PANCHAYATH, PERUMKADAVILA
P.O., TRIVANDRUM DISTRICT.

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BY ADV SRI.R.GOPAN

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RESPONDENT/S:

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THE SECRETARY, MARAYAMUTTOM SERVICE CO-OP SOCIETY
LTD.NO.
984, MARAYAMUTTAM P.O., NEYYATINKARA,
THIRUVANANTHAPURAM DISTRICT.

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BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.S.NITHIN ANCHAL
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W. A. No. 2057 of 2015

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J U D G M E N T

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Dated this the 10^th day of October, 2023

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V. G. Arun, J.

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The writ appeal is filed by the Perumkadavila Grama Panchayat, challenging Ext. P6 order passed by the Tribunal for Local Self Government Institutions, setting aside the order issued by Panchayat requiring the 1^st respondent to stop functioning of its Petrol Pump and to regularise its construction within one month.

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The essential facts are as under:-

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The 1^st respondent, a Co-operative Society, is in ownership

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and possession of 63 cents of land in Perumkadavila Village. In

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the year 2007, the 1^st respondent constructed a building in the property after obtaining plan approval and permit from the appellant Panchayat. While so, the Indian Oil Corporation allotted a Petrol Pump for 1^st respondent under the Kisan Seva Kendra Scheme. For the purpose of setting up the fuel dispensing units and office, the 1^st respondent submitted Ext. P1 application before the appellant, seeking building permit and layout approval. As

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W. A. No. 2057 of 2015

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Petrol Pumps fall under hazardous occupancy, the layout is to be approved by the Chief Town Planner. Hence, the appellant forwarded the application submitted by the 1^st respondent to the Chief Town Planner. By Ext. P2, the Chief Town Planner granted layout approval subject to certain conditions. The appellant claims that the consent granted by the Chief Town Planner was communicated to the 1^st respondent, as evidenced by Ext. P3 acknowledgment card. The 1^st respondent refutes the claim and contends that, after submission of Ext. P1 application for building permit on 13.04.2009, the stop memo dated 18.01.2014 is the first communication received from the appellant. On being served with the stop memo from the appellant and faced with the refusal on the part of the appellant to renew its trade licence for continuing the conduct of the fuel station, the 1^st respondent approached the Tribunal for Local Self Government. The Tribunal, after careful examination of the relevant documents, came to the conclusion that the construction was carried out in accordance with the layout approval granted by the Chief Town Planner and on the strength of the deemed building permit under Section 236(3) of the Kerala

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W. A. No. 2057 of 2015

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Panchayat Raj Act, 1994. The appellant was therefore directed to issue permit and licence to the 1^st respondent in accordance with Ext. P1 application. As regards a third fuel dispensing unit with a canopy set up by the 1^st respondent, which is not covered by the layout approval issued by the Chief Town Planner, the Tribunal permitted the 1^st respondent to submit an application for regularisation and directed the Panchayat to dispose of the application without delay.

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Before the learned Single Judge, the appellant contended that, since the consent received from the Chief Town Planner was communicated to the 1^st respondent, the deeming provision had no application. Moreover, there is no provision in the Kerala Panchayat Raj Act or the Building Rules enabling the grant of building permits retrospectively. The learned Single Judge rejected the contentions and affirmed the finding of the Tribunal that, as the application for building permit submitted in the year 2009 was kept pending without decision by the Panchayat, a deemed permit had come into effect.

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W. A. No. 2057 of 2015

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Assailing the finding of the Tribunal, as affirmed by the

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learned Single Judge, Adv. R. Gopan appearing for the appellant contended that, having completed the construction without waiting for the Panchayat’s decision, the 1^st respondent cannot rely on Section 236(3), since the deeming provision will apply only if the construction is in accordance with law, rules, bye-laws and all conditions ordinarily imposed. According to the learned Counsel, by the submission of Ext. P5 application for regularisation, the 1^st respondent has acknowledged the fact that the construction is illegal. The further contention is that the direction of the Tribunal is impossible to comply with, there being no provision under the Kerala Panchayat Raj Act or the Kerala Panchayat Building Rules empowering the Panchayat to grant building permits retrospectively.

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In reply, Adv. P. B. Subramanyan, the learned Counsel appearing for the 1^st respondent contended that, except the oral submission of the learned Counsel for the Panchayat, no material, to substantiate the allegation that the 1^st respondent had carried out

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W. A. No. 2057 of 2015

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and completed the construction immediately after the submission of Ext. P1 application, was produced before the Tribunal or in the writ petition. On the other hand, records reveal that the 1^st respondent was issued with a stop memo alleging completion of construction without a permit for the first time on 18.01.2014. The stop memo was impugned before the Tribunal and culminated in Ext. P6 order. As regards the contention based on Ext. P5 application for regularisation, it is submitted that, since the Panchayat did not take a decision on Ext. P1, the 1^st respondent kept on submitting applications for building permits every year and also submitted the application for regularisation as a measure of abundant caution. The mere submission of an application for regularisation cannot take away the right vested on the 1^st respondent by virtue of the deeming provision.

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Having heard the learned Counsel and having carefully gone through the records, we find no reason to interfere with the findings of the Tribunal and the learned Single Judge. Indisputably, Ext. P1 application for building permit was

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W. A. No. 2057 of 2015

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submitted by the 1^st respondent on 13.04.2009 and Ext. P2 consent was granted by the Chief Town Planner vide order No. 436/09 (D.Dis) dated 02.09.2009. Except for a vague assertion that the decision of the Chief Town Planner was communicated to the 1^st respondent and Ext. P3, the acknowledgment card, no other material is produced by the appellant. In our opinion, even forwarding of the Chief Town Planner’s consent would not suffice, since Section 236(3) mandates the passing of an order and communicating the same within 30 days. Therefore, it was incumbent upon the Panchayat to have decided Ext. P1 application on receipt of the Chief Town Planner’s approval and to have communicated its decision to the 1^st respondent within the stipulated time. The Panchayat, having failed to do so, the deemed licence came into effect.

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The contention that the petitioner is not entitled to the

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benefit of the deeming provision, since the construction was completed immediately after submission of the application, can only be rejected in the absence of materials to prove that the

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W. A. No. 2057 of 2015

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construction was effected within the time stipulated in Section 236(3). As contended by the learned Counsel for the 1^st respondent, the stop memo dated 18.01.2014 seems to be the first communication issued from the Panchayat to the 1^st respondent. The argument that the petitioner cannot claim the benefit of the deeming provision, in view of the submission of Ext. P5 application for regularisation, is also liable to be rejected, since the deemed licence, which had come into effect on expiry of the period stipulated in Section 236(3) will not be effaced, by reason of the submission of an application for regularisation.

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For the aforementioned reasons, we find no merit in the writ appeal and the same is accordingly dismissed.

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Sd/A. J. DESAI CHIEF JUSTICE

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Sd/V. G. ARUN JUDGE

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Perumkadavila Grama Panchayath v. the Secretary, Marayamuttom Service Co-Op Society Ltd.No.

Case brief

What is this about?

What did the court decide?

Perumkadavila Grama Panchayath v. the Secretary, Marayamuttom Service Co-Op Society Ltd.No.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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