Allowed

C.C.Hamza Haji v. Athavanad Grama Panchayath

Kerala HC11 Jul 2024WP(C)/1391/2024

Case brief

AI extract

What is this about?

A commercial building permit holder whose renewal application predated permit expiry challenged the Panchayat's rejection directing regularisation under the Kerala Panchayat Building Rules 2019. The court held renewal had to be considered under the 2011 Rules, quashed the rejection orders, and directed the Panchayat to communicate defects and decide on the renewal and revised plan.

What did the court decide?

Exts.P6 and P8 quashed; Panchayat directed to intimate defects within 2 weeks, then consider renewal application and revised plan under KPBR 2011 within 4 weeks of resubmission.

C.C.Hamza Haji Vs Athavanad Grama Panchayath — Municipal and Town Planning | Kerala HC (2024)

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W. P. (C) No. 1391 of 2024

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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 MOHAMMED NIAS C.P.

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THURSDAY, THE 11^TH DAY OF JULY 2024 / 20TH ASHADHA, 1946 WP(C) NO. 1391 OF 2024

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PETITIONER:

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C.C.HAMZA HAJI, AGED 70 YEARS, S/O. LATE POCKU, CHOLAKKAL CHEPPALA, TIRUR TALUK, VALAVANNOOR P.O. KADUNGATHUKUNDU, MALAPPURAM,, PIN – 676551.

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BY ADVS.M/S.M.A.VAHEEDA BABU, BABU KARUKAPADATH, P.U.VINOD KUMAR, ARYA RAGHUNATH, AJWIN P LALSON, KARUKAPADATH WAZIM BABU, P.LAKSHMI, AYSHA E.M., SHIFANA KAISE & DENNIS BIJU

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RESPONDENTS:

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1 ATHAVANAD GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KARIPPOL, VETTICHIRA, ATHAVANAD P.O., MALAPPURAM, PIN – 676553.

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2 SECRETARY,ATHAVAND GRAMA PANCHAYATH, KARIPPOL, VETTICHIRA, ATHAVANAD P.O. MALAPPURAM, PIN – 676553.

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3 ASSISTANT ENGINEER,ATHAVAND GRAMA PANCHAYATH, KARIPPOL, VETTICHIRA, ATHAVANAD P.O. MALAPPURAM., PIN – 676553.

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BY SRI.K.P. SUDHEER, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W. P. (C) No. 1391 of 2024

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MOHAMMED NIAS C. P. , J.

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W. P. (C) No. 1391 of 2024

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============================================= Dated this the 11^th day of July, 2024

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J U D G M E N T

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The petitioner is stated to be the owner of 46.18 ares of property situated in Survey No. 23/1-6 and 24/1-9 of Athavanad Village, which was part of a larger extent of property having an extent of about 142.16 cents. A portion of this was acquired to develop the Kanjippura-Moodal Bypass road and another portion was settled in favour of his wife Khadeeja. The said property comes within the jurisdiction of the 1st respondent Panchayat. The petitioner had applied for a building permit to construct a mercantile/commercial building with a plinth area of 4157.56 sq.m. for which Ext.P2 building permit was granted by the respondent Panchayat on 30.11.2017. The petitioner submits that

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a portion of the property measuring 28.5 cents was acquired for

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W. P. (C) No. 1391 of 2024

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the development of the bypass road. The petitioner could not complete the construction due to the intervening COVID-19 lockdown and also, on account of the pending acquisition proposal, the alignment of which was not clear.

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The petitioner submitted an application for renewal of the building permit on 17.3.2021 through the SANKETHAM portal, for an extension of Ext.P2 building permit, the receipt of which is produced as Ext.P3. The petitioner submits that, for acquisition proceedings for the development of the NH 66 Road, 7 cents of property, which was earmarked as the parking area under the permit originally granted, was acquired from the petitioner as per proceedings of the competent authority dated 13.4.2021, which necessitated the construction of the building with some deviations from the original permit. With effect from 8.11.2019, the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as 'the KPBR Act, 2011') was replaced by the Kerala Panchayat Building Rules, 2019 (hereinafter referred to as 'the KPBR Act, 2019') . In view of

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W. P. (C) No. 1391 of 2024

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the above development, construction as per the original permit was rendered impossible. The petitioner had sent a reminder for consideration of Ext.P3 renewal application through Ext.P4 and also, submitted Ext.P5 revised plan reducing the plinth area to 4149.77sq.m. in place of the original approval of 4157.56 sq.m. granted as per Ext.P2 building permit. Through Ext.P6 order dated 22.12.2023, the request of the petitioner was rejected directing him to file an application for regularisation under the KPBR, 2019.

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This Court had passed an interim order on 12.1.2024 directing the 2^nd respondent to re-visit Ext.P6 and to consider Ext.P5 in the light of P7 G.O. Based on the said direction, Ext.P8 order was passed on 15.2.2024 rejecting the request of the petitioner and directing the petitioner to apply for regularization in terms of the KPBR, 2019. The petitioner challenges Exts.P6 and P8 and also, seeks a direction to the respondents to approve Ext.P5 revised plan under the KPBR, 2011.

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W. P. (C) No. 1391 of 2024

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A counter affidavit has been filed on behalf of the Panchayat which states that Ext.P3 renewal application was not in tune with the rules and that the original permit was not produced along with the said application. It is also stated that the renewal application was submitted only on 12.9.23, by which time the original permit had expired. It is on this basis that they directed the petitioner to prefer an application for regularization under Rule 92 of the KPBR, 2019.

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Heard Smt. M. A. Vaheeda Babu, learned counsel for the petitioner and Sri.K.P.Sudheer, learned Standing Counsel for the Panchayat.

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The undisputed facts are that Ext.P2 building permit was granted on 30.11.2017 for constructing a commercial building having a plinth area of 4157.56 sq.m. which was issued under the KPBR, 2011. It is also not disputed that the renewal application was filed on 17.3.2021 before the expiry of the original permit, as seen from Ext.P3, and as conceded in Ext.P8. Under such

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W. P. (C) No. 1391 of 2024

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circumstances, the Panchayat had to consider the renewal application dated 17.3.2021 in the light of the provisions under the KPBR, 2011. It is trite that the renewal application has to be considered based on the law existing as on the date of the grant of the original permit. Equally, the allegation of violation of the building rules also has to be gauged on the basis of the law at the time of the issuance of the building permit.

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The reasons put forth by the Panchayat for not considering the application dated 17.3.2021 is that the same was not in format and not in tune with the provisions of the building rules. However, no communication was issued by the Panchayat to the writ petitioner intimating the defects in the application. In the meantime, the petitioner had to submit an Ext.P5 revised plan on account of the subsequent development of the portion of the property having been acquired for the construction of the National Highway, which made him deviate from the original permit.

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W. P. (C) No. 1391 of 2024

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Since the renewal application dated 17.3.2021 had to be considered in terms of the KPBR 2011, there will be a direction to the Panchayat to inform the writ petitioner of the defects in the renewal application filed on 17.3.2021 and give time to cure the same. This notice shall be issued within 2 weeks from today. On the petitioner curing the defects and resubmitting the application, the Panchayat will consider the renewal application based on the KPBR, 2011 and pass orders within 4 weeks from the date of resubmission. The request for consideration of Ext.P5 revised plan will also be based on the provisions existing under the KPBR, 2011 and in terms of Ext.P7 .G.O. dated 10.1.2022, in particular Clause (iii) thereof. It is made clear that it will be open to the Panchayat to take such steps under the provisions of the KPBR 2011 in case there is any violation of the original permit conditions committed by the writ petitioner. Needless to say, the revised application will also be considered in terms of the Building Rules 2011. Orders on the application, seeking

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W. P. (C) No. 1391 of 2024

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permission to construct based on the revised plan, will also be passed within 4 weeks from the date of resubmission of the renewal application.

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To enable the above exercise, Exts.P6 and P8 are quashed. The direction of the Panchayat demanding the petitioner to file an application for regularization under the KPBR 2019 cannot be sustained.

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The Writ Petition is allowed as above.

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Sd/-

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MOHAMMED NIAS C. P. , JUDGE

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MMG

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W. P. (C) No. 1391 of 2024

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APPENDIX OF WP(C).NO.1391/2024

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE LAND TAX RECEIPT DATED 19/04/2023 EVIDENCING PAYMENT OF LAND TAX WITH RESPECT TO 46.18 ARES OF PROPERTY SITUATED IN SURVEY NO.23/1-6 AND 24/1-9 OF ATHAVANAD VILLAGE, BELONGING TO THE PETITIONER,

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EXHIBIT P2 A TRUE COPY OF THE BUILDING PERMIT DATED 30/11/2017 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT PANCHAYAT FOR CONSTRUCTION OF A MERCANTILE/COMMERCIAL BUILDING FACING NH-66 WITH A PLINTH AREA OF 4157.56 SQ.MTR. VALID UPTO 21/03/2021,

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EXHIBIT P3 A TRUE COPY OF THE RENEWAL DETAILS OF EXHIBIT P2 BUILDING PERMIT UPTO 21/03/2024, RECEIVED FROM THE PORTAL, ON SUBMISSION OF RENEWAL APPLICATION BY THE PETITIONER, BEFORE THE EXPIRY OF EXHIBIT P2 BUILDING PERMIT.

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EXHIBIT P4 A TRUE COPY OF THE REMINDER DATED 12/09/2023, SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, IN CONTINUATION OF EXHIBIT P3, ALONG WITH ITS RECEIPT,

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W. P. (C) No. 1391 of 2024

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EXHIBIT P5 A TRUE COPY OF THE RELEVANT PORTION OF THE REQUEST DATED 09/11/2023 SUBMITTED BY THE PETITIONER ALONG WITH THE REVISED PLAN WITH PROVISION FOR PARKING ETC, REQUESTING TO APPROVE THE SAME WITH REDUCED PLINTH AREA OF 4149.77 M2, IN PLACE OF THE ORIGINAL APPROVAL OF 4157.56 M2 GRANTED IN EXHIBIT P2 EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 22/12/2023 OF THE 2ND RESPONDENT, REJECTING EXHIBIT P5 REQUEST, INTIMATING INTER ALIA THAT, REGULARIZATION APPLICATION HAS TO BE SUBMITTED BY THE PETITIONER AS PER KPBR 2019 ETC,

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EXHIBIT P7 . A TRUE COPY OF G.O(RT). NO.47/2022/LSGD DATED10/01/2022 ISSUED BY THE GOVERNMENT, IN THE EVENT OF PROMULGATION OF THE KERALA PANCHAYAT BUILDING RULES 2019

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EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 15/02/2024 ISSUED BY THE 2ND RESPONDENT IN PURSUANCE TO THE DIRECTIONS OF THIS HON'BLE COURT IN THE INTERIM ORDER DATED 12/01/2024 IN THE ABOVE WRIT PETITION,

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RESPONDENTS' EXHIBITS:

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EXHIBIT R 1 (A) TRUE COPY OF COMMUNICATION NO. 400890/ BARE02/ GPO/2023/8088/(1) DATED 10/11/2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER

C.C.Hamza Haji v. Athavanad Grama Panchayath

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C.C.Hamza Haji v. Athavanad Grama Panchayath

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