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2014 DIGILAW 46 (KER)

Sathianathan v. Agricultural Officer

2014-01-15

K.SURENDRA MOHAN

body2014
JUDGMENT : 1. The petitioner has filed this writ petition challenging Exhibit P6 order passed by the third respondent directing demolition of a building constructed by him. The petitioner had submitted an application for the issue of a building permit. The said application was considered by the third respondent and Exhibit P2 building permit was issued to him. On the strength of Exhibit P2, the petitioner started construction of a double storeyed building in his property. The construction has been completed. There is no allegation that there has been violation of any of the provisions of the Building Rules or the building permit granted to the petitioner. However, on the ground that his property has been described as paddy land in his Possession Certificate, Exhibit P6 order has been passed on 27.09.2013 ordering demolition of the construction put up by him. Exhibit P4(a) is the provisional order that preceded Exhibit P6. 2. According to Shri.K.P. Sudheer, Advocate, who appears for the petitioner, the petitioner's property has been a filled up, dry land all through. It is contended by the petitioner that there existed another building in his property which was numbered as 9/162. Exhibit PI3 copy of the Data Bank is relied upon to contend that his property has been described therein as converted land with the age of the conversion as 35 years. Therefore, according to the counsel, there is no justification for the issue of Exhibit P6. In view of the above, he seeks the issue of appropriate directions setting aside the same. 3. Advocate R.Sudhish appears for the third respondent Panchayat. A counter affidavit has also been filed. According to the third respondent, since the property has been described as paddy land in the Possession Certificate, it was incumbent on the petitioner to have sought for a correction of the said description before applying for a building permit. The said course not having been adopted, it is contended that the construction now can only be regarded as an unauthorised construction made on a paddy land. It was in view of the above that Exhibit P6 order has been issued directing demolition thereof. It is further pointed out that, the impugned order being one passed under Section 235(W) of the Kerala Panchayat Raj Act, 1994, the petitioner has a statutory remedy by way of appeal before the Tribunal for Local Self Government Institutions, Thiruvananthapuram against it. It was in view of the above that Exhibit P6 order has been issued directing demolition thereof. It is further pointed out that, the impugned order being one passed under Section 235(W) of the Kerala Panchayat Raj Act, 1994, the petitioner has a statutory remedy by way of appeal before the Tribunal for Local Self Government Institutions, Thiruvananthapuram against it. The petitioner not having exhausted the said alternative remedy is not entitled to maintain this writ petition before this Court, it is contended. 4. The petitioner has filed a reply affidavit reiterating his stand in the writ petition and producing an additional document Exhibit PI3. It is also contended that, a building permit has been issued to an adjacent land owner in similar circumstances. Therefore, there is absolutely no justification for discriminating the petitioner. 5. Heard. It is not in dispute that Exhibit P2 building permit had been issued to the petitioner as early as on 26.07.2010. Pursuant to Exhibit P2, the petitioner has undertaken the construction and as evident from Exhibit P7 series photographs, the same now remains complete. As per Exhibit P3, the petitioner has sought for the numbering of his building. It is thereafter that Exhibit P4 and P4(a) provisional order and covering letter have been issued to the petitioner followed up with Exhibit P6. The petitioner having undertaken his construction on the strength of a valid building permit Exhibit P2, cannot be found fault with in any manner. It cannot be presumed that the third respondent would have issued Exhibit P2 building permit, had the property of the petitioner been paddy land, as contended. Exhibit PI3 extract of the Data Bank also supports the above conclusion for the reason that, the petitioner's property at Serial No. 35 of the said document has been described as having been converted 35 years back. Added to the above, is the fact that the property already had another building situate therein, that was numbered as 9/162 by the Panchayat, without any objection. In the face of the above clinching evidence, there is no justification for directing the petitioner to demolish his construction on the basis of the description of the property contained in his Possession Certificate. 6. In the face of the above clinching evidence, there is no justification for directing the petitioner to demolish his construction on the basis of the description of the property contained in his Possession Certificate. 6. It has been held by this Court that, having expended money and put up construction on the strength of a valid building permit, a land owner cannot be directed to demolish his construction Such a course would cause needless financial loss and hardship to the land owner. In the present case, the petitioner having undertaken his construction strictly in accordance with Exhibit P2 building permit, cannot be directed to demolish his construction on the basis of the description of the land contained in his Possession Certificate. That too, when the Data Bank published under Act 28 of 2008 itself shows that the property is not paddy land. 7. In view of the above factual position, I am not satisfied that the petitioner should be relegated to his statutory remedy at this length of time. This writ petition was admitted on 04.10.2013 and has been pending before this Court ever since. The time for filing a statutory appeal has expired in the meantime. For the above reasons, this writ petition is allowed. Exhibit P6 is set aside. The third respondent is directed to consider and pass final orders on the application for numbering his building submitted by the petitioner, as expeditiously as possible and at any rate within a period of three weeks of the date of production of a copy of this judgment.