Allowed

Eby Thomas v. the Pampakuda Grama Panchayath

Kerala HC14 Feb 2023WP(C)/960/2023

Case brief

AI extract

What is this about?

This judgment quashed a Pampakuda Grama Panchayat resolution imposing blanket geographic and area restrictions on building permits. The Court held such general measures violate the Secretary's statutory duty to consider individual applications independently under the Kerala Panchayat Building Rules, 2019, and directed reconsideration of the petitions.

What did the court decide?

Impugned orders setting aside building permit applications are quashed. The Secretary is directed to reconsider the applications within three weeks.

Eby Thomas Vs the Pampakuda Grama Panchayath — Municipal and Town Planning | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶4

TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944

¶5

WP(C) NO. 960 OF 2023

¶6

PETITIONER:

¶7

EBY THOMAS
AGED 44 YEARS
S/O THOMAS C O, CHOLAPARAMBIL HOUSE, ONAKKOOR,
PERIYAPPURAM, ERNAKULAM DISTRICT, PIN - 686667
BY ADV MANOJ P.KUNJACHAN

¶8

RESPONDENTS:

¶9

1 THE PAMPAKUDA GRAMA PANCHAYATH GRAMA PANCHAYATH OFFICE PAMPAKUDA, PAMPAKUDA P O, ERNAKULAM DISTRICT, PIN 686667, REPRESENTED BY SECRETARY

¶10

2THE SECRETARY
PAMPAKUDA GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE
PAMPAKUDA, PAMPAKUDA P O, ERNAKULAM DISTRICT,PIN-686667
BY ADV JIBU P THOMAS

¶11

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.02.2023, ALONG WITH WP(C).2483/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶12

WP(C) NOS.960 & 2483 OF 2023

¶13

¶14

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶15

PRESENT

¶16

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶17

TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944

¶18

WP(C) NO. 2483 OF 2023

¶19

PETITIONER:

¶20

DR.ARUN GEORGE
AGED 43 YEARS

¶21

S/O GEORGE VARGHESE, MANGALLATHU PUTHENPURAYIL
PAMBAKUDA, ONAKKOOR VILLAGE, MUVATTUPPUZHA TALUK
ERNAKULAM DISTRICT, PIN - 686667

¶22

BY ADVS.
S.SHANAVAS KHAN
S.INDU
KALA G.NAMBIAR

¶23

RESPONDENTS:

¶24

1 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001

¶25

2 PAMPAKUDA GRAMA PANCHAYAT MEMMURY, PAMBAKUDA P.O, ERNAKULAM DISTRICT, PIN- 686667 REPRESENTED BY ITS SECRETARY

¶26

3 THE SECRETARY PAMBAKUDA GRAMA PANCHAYAT MEMMURY, PAMBAKUDA P.O ERNAKULA DISTRICT, PIN - 686667 BY ADV JIBU P THOMAS

¶27

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.02.2023, ALONG WITH WP(C).960/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶28

WP(C) NOS.960 & 2483 OF 2023

¶29

¶30

JUDGMENT

¶31

[WP(C) Nos.960/2023, 2483/2023]

¶32

Dated this the 14^th day of February, 2023

¶33

The first of these writ petitions is filed challenging Ext.P3 communication of the Secretary rejecting an application for building permit as well as Ext.P4 resolution dated 25.11.2022 of the Grama Panchayat. The learned counsel for the petitioner submits that the petitioner is the owner of a property within the Panchayat and that his request for building permit has been rejected on the strength of Ext.P4 resolution. The resolution states that only residential buildings having a plinth area of 250 sq.m and commercial buildings having a plinth area of 100 sq.m can be permitted to be constructed in the Panchayat in view of the fact that there is indiscriminate removal of soil and consequent environmental issues in the Panchayat. The impugned resolution also restricts mining of ordinary earth to a depth of more than 4m in the Panchayat area.

¶34

The petitioner in W.P.(C) No.2483/2023 challenges rejection of

¶35

WP(C) NOS.960 & 2483 OF 2023

¶36

¶37

his building permit by Ext.P6 and submits that the Panchayat has no authority to restrict the plinth area of buildings sought to be constructed in the properties of the petitioner.

¶38

The learned counsel for the petitioners rely on a judgment of this Court in Jose Thomas Pattara and Others v. Uzhavoor Grama Panchayat and others [2022 (5) KHC 585] where a resolution of the Panchayat not to grant permits to extract ordinary earth above a certain quantity was considered and this Court had found that the applications submitted by residents of the Panchayat have to be considered on merits on a one on one basis and there can be no blanket restrictions.

¶39

A statement has been filed by the standing counsel for the Panchayat in W.P.(C) No.960/2023. It is submitted that Section 166 of the Panchayat Raj Act provides for the powers, duties and functions of a village panchayat as enumerated in the Third Schedule. It is submitted that the Third Schedule provides that the Panchayat shall regulate building constructions, undertake maintenance of traditional drinking water sources, preservation of ponds and water tanks, maintenance of water ways and canals and the maintenance of environmental hygiene

¶40

WP(C) NOS.960 & 2483 OF 2023

¶41

¶42

and protection of roads and other public properties. It is stated that the general functions provide that the Panchayat shall inculcate environmental awareness and motivate local action for environmental

¶43

upgradation. It is further contended that in case of any irregularity or illegality in a resolution taken by the Panchayat, it was open to the Secretary of the Panchayat to raise a dissent and refer the matter to the Government and the Government has power under Section 191 of the Act to suo motu or on a reference by President, Secretary or a member of the Panchayat, or on a petition received from a citizen, to cancel or vary a resolution passed or a decision taken by the Panchayat in case such decision is not legally passed or is in excess of the powers conferred or is likely to endanger human life, health, public safety, communal harmony etc. or in violation of the directions or provisions issued by Government. It is therefore contended that the petitioners have an efficacious alternate remedy of approaching the Government if they are aggrieved by the decision.

¶44

Having considered the contentions advanced, I notice that the power of the Panchayat to regulate construction of buildings cannot

¶45

WP(C) NOS.960 & 2483 OF 2023

¶46

¶47

extend to the imposition of a condition with regard to the plinth area of buildings to be constructed in the Panchayat. In case there is any irregularity in the applications submitted by individual residents of the Panchayat for building permits, it is very well open to the Panchayat to seek a rectification of such defects.

¶48

The learned counsel for the petitioners would also draw my attention to Rule 22, Sub Rule (3) of the Kerala Panchayat Building Rules which specifically provide that no land development or redevelopment shall be made and no building shall be constructed on a plot notified by the grama Panchayat which is liable to be flooded or on a slope forming an angle of more than 45 degrees horizontal or on soil unsuitable for percolation or on area shown as floodable area in any Master Plan / Detailed Town Planning Scheme / Interim Development Order in force under the Kerala Town and Country Planning Act, 2016 or in sandy beds, unless it is proved by the owner to the satisfaction of the Secretary that such construction will not be dangerous or injurious to health. It is submitted that there are several restrictions provided in the Building Rules as well with regard to the constructions that can be

¶49

WP(C) NOS.960 & 2483 OF 2023

¶50

¶51

conducted in Panchayat areas and that restrictions which are outside the scope of the provisions of the Act and the Rules cannot be made by the Panchayat as a general measure.

¶52

Having considered the contentions advanced on all sides in these writ petitions, I notice that the only reason stated in the orders rejecting the applications for building permit is that there is a blanket restriction imposed by the resolution of the Panchayat.

¶53

This Court in the judgment relied on by the learned counsel for the petitioners had considered the specific issue and had held that the power of the Secretary is to consider a building permit and to pass orders on the application and such power has to be exercised independently by the Secretary without interference or influence by the Panchayat or its Committee. The earlier decisions of this Court in Dharmadom Paristhithi Samrakshana Samithi Vs Dharmadom Grama Panchayat [2010 (2) KLT 194] and in Silvy Vs. Koovappady Grama Panchayat and another [2018 (4) KLT 1059] as also the provisions of the Building Rules were also referred.

¶54

In the above view of the matter, I am of the opinion that such

¶55

WP(C) NOS.960 & 2483 OF 2023

¶56

¶57

restrictions cannot stand in the way of independent consideration of applications for building permit by the Secretary. The impugned orders in these writ petitions are set aside. There will be a direction to the Secretary to take up the applications submitted by the petitioners and to consider and pass orders on the same, strictly in accordance with the provisions of the Kerala Panchayat Building Rules, 2019, within a period of three weeks from the date of receipt of a copy of this judgment.

¶58

This writ petition is ordered accordingly.

¶59

Sd/-

¶60

ANU SIVARAMAN

¶61

JUDGE

¶62

NP

¶63

WP(C) NOS.960 & 2483 OF 2023

¶64

¶65

APPENDIX OF WP(C) 960/2023

¶66

PETITIONER’S EXHIBITS
Exhibit P1TRUE COPY OF THE TAX RECEIPT ISSUED FROM THE
VILLAGE OFFICE ONAKKOOR DATED 25/05/2022
Exhibit P2TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONER TO THE 1ST RESPONDENT DATED
22/11/2022
Exhibit P3TRUE COPY OF THE COMMUNICATION ISSUED BY 2ND
RESPONDENT DATED 26/12/2022
Exhibit P4TRUE COPY OF THE RESOLUTION NUMBER 5(1) BY
1ST RESPONDENT DATED 25/11/2022

¶67

RESPONDENTS’ EXHIBITS: NIL

¶68

WP(C) NOS.960 & 2483 OF 2023

¶69

¶70

APPENDIX OF WP(C) 2483/2023

¶71

PETITIONER’S EXHIBITS

¶72

Exhibit P1TRUE COPY OF THE SETTLEMENT DEED DATED
14/02/2013 OF PIRAVOM SUB REGISTRY OFFICE
Exhibit P2TRUE COPY OF THE POSSESSION CERTIFICATE DATED
03/11/2022 IN RESPECT OF 2.4.37 HECTRES OF
LAND ISSUED FROM VILLAGE OFFICE, MEMMURY
Exhibit P3TRUE COPY OF THE LOCATION SKETCH DATED
02/11/2022 ISSUED BY VILLAGE OFFICER, MEMMURY
Exhibit P4TRUE COPY OF THE PLAN
Exhibit P5TRUE COPY OF THE RECEIPT EVIDENCING THE
SUBMISSION OF EXT. P4 ISSUED BY 1ST
RESPONDENT
Exhibit P6TRUE COPY OF THE COMMUNICATION DATED
15/12/2022 OF THE 3RD RESPONDENT
Exhibit P7TRUE COPY OF THE CALCULATION SHEET OF THE
EARTH WORK AREA
RESPONDENTS’ EXHIBITS: NIL

Eby Thomas v. the Pampakuda Grama Panchayath

Case brief

What is this about?

What did the court decide?

Eby Thomas v. the Pampakuda Grama Panchayath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Sakkeer.a Vs the District Collector

Anas Property Developers Private Ltd. Vs the District Collector

Preethi Vs Senior Geologist

Siraj N.M. Vs the District Collector

Robin P R Vs State Level Environment Impact Assessmeny Authority

Subhash T S Vs the District Collector Idukki