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2019 DIGILAW 294 (KER)

P. v. Yousuff VS State of Kerala

2019-03-27

SHAJI P.CHALY

body2019
JUDGMENT : The captioned writ petitions are materially connected in respect of construction of a building carried out by the petitioners in W.P.(C) No.17259 of 2015. Therefore, I heard them together and propose to deliver this common judgment. The reliefs sought for by the petitioners in W.P.(C) No.17259 of 2015 are seeking to quash Ext.P9 prohibitory order of the 3rd respondent, Tahsildar, Aluva and Ext.P12 letter of the 2nd respondent, District Collector, Ernakulam, and for other consequential reliefs. 2. W.P.(C) No.6781 of 2016 is filed by the KKP Nagar Allottees' Association, who are allottees of plots by the Kerala State Housing Board, seeking direction to respondents 1 to 4 and 7 to ensure that no construction activity is done by respondents 5 and 6 therein, who are the petitioners in the earlier specified writ petition, without a building permit in plot No.49 of the KKP Nagar Housing Colony. 3. W.P.(C) No.13363 of 2016 is filed by the very same Allottees' Association, seeking direction to the 1st respondent, i.e., the Karumalloor Grama Panchayat to ensure that the illegal construction carried out by respondents 3 and 4 without building permit is demolished within a time frame to be fixed by this Court and for other consequential reliefs. 4. It is an admitted fact that, petitioners in W.P.(C) No.17259 of 2015 have submitted an application seeking building permit, which was considered by the Secretary of the above specified Grama Panchayat and issued Ext.P5 permit dated 06.03.2014, permitting the petitioners to construct the cellar portion as per the approved plan, and the permit was valid up to 05.03.2017. The approved plan is not produced along with the said writ petition. However, application for permit is produced as Ext.P3. From where, it is seen that petitioners have sought permission for construction of Basement/Cellar floor having an area of 180.01m2 and Ground and First floors with the same area, and thus altogether permit was sought for 540.03m2 (Incorrectly shown as 360.02m2) and the maximum height of the building is shown as 9.90 metres. However, the said application dated 22.01.2014 was considered and granted Ext.P5 permit only for the construction of Cellar floor. 5. However, the said application dated 22.01.2014 was considered and granted Ext.P5 permit only for the construction of Cellar floor. 5. According to the petitioners, the Cellar floor was constructed and since the application submitted by the petitioners for the construction of the Ground and the First floors was not considered, and appropriate permit was not granted within a period of thirty days, as is contemplated under Sec.236(3) of the Kerala Panchayat Raj Act, 1994 (for short, 'the Act, 1994'), petitioners are entitled to get deemed permit in accordance with law. Therefore, whatever constructions carried out by the petitioners cannot be said to be illegal or bad, and therefore, the reliefs sought for by the petitioner in the other two writ petitions cannot be sustained under law and the petitioners are entitled to get the constructions already carried out regularized and also entitled to further constructions. 6. On the other hand, learned counsel appearing for the petitioner in the other two writ petitions submitted that, all the constructions apart from the construction carried out as per Ext.P5, cannot be sustained under law, and the same are to be demolished. It is also submitted by the learned counsel that the petitioners in W.P.(C) No.17259 of 2015 are attempting to construct a commercial building in the plots allotted by the Housing Board for construction of residential buildings alone, and therefore, in that regard also, the commercial construction carried out by the petitioners therein cannot be sustained under law. 7. Learned Standing Counsel appearing for the Housing Board also supported the said arguments and submitted that Annexure-R7(a) Prospectus and conditions of allotment issued by the Housing Board are mandatory stipulations, which are bound to be followed by the allottees. Learned counsel has also invited my attention to Part-VIII of the said Prospectus. Clause 3 there under stipulates that, no structure other than a residential building shall be constructed in the house plots, and clause 6 stipulates that, the building shall not be used for any purpose other than residential purposes without the sanction of the Regional Engineer. Relying upon the said provisions, it is submitted by learned Standing Counsel that petitioners were duty bound to undertake the said conditions incorporated in the Prospectus, which are mandatory requirements under the Kerala State Housing Board Act, 1971, and the Rules provided there under. 8. Relying upon the said provisions, it is submitted by learned Standing Counsel that petitioners were duty bound to undertake the said conditions incorporated in the Prospectus, which are mandatory requirements under the Kerala State Housing Board Act, 1971, and the Rules provided there under. 8. I have heard the respective counsel across the Bar, and perused the pleadings and the documents on record. 9. The respective parties have filed counter affidavits in the corresponding writ petitions and they have addressed their arguments in accordance with the contentions put forth. 10. It is an admitted fact that, petitioners in W.P.(C) No.17259 of 2015 have secured only Ext.P5 permit for the construction of a Basement floor. However, from Ext.P3 application, it is evident that, they have submitted application seeking permit for the construction of Basement + Ground + First floors. Therefore, the contention advanced by learned counsel for the petitioners in that regard is that, since the application submitted by the petitioners was not considered and permit is not issued in its entirety, petitioners are entitled as of right to proceed with the construction, on the expiry of thirty days, as per the stipulations contained under Sec.236(3) of Act, 1994. 11. It is true, such a stipulation is there in Act, 1994. But the said provision has a restriction also. Sub-section (3) of Sec.236 of Act, 1994, read thus: “236. General provisions regarding licences and permissions. (1) x x x x x x x x (2) x x x x x x x x (3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed.” 12. On a reading of the said provision, it is clear that, normally, if any licence or permission is not communicated to the applicant within thirty days from the date of receipt of the application, the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed. However, on a close scrutiny of the said provision, it is clear that, if any longer period is prescribed in any class of cases, the stipulations contained there under have to be followed. In that regard, Rule 16 of the Kerala Panchayat Building Rules, 2011 (for short, 'the Rules, 2011') is relevant, which read thus: “16. Reference to Village Panchayat where the Secretary delays to grant or refuse to approve permission.--(1) The Panchayat shall, if the Secretary makes delay in granting or refusing approval for a building site, neither gives nor refuses permission to execute any work within thirty days from the date of receipt of the application, on the written request of the applicant, be bound to determine whether such approval or permission should be given or not. (2) Where the Village Panchayat does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute work, but not so as to contravene any provision of the Act or these rules or bye-laws made there under. Provided that such execution of work shall be considered as duly permitted and not one for regularisation and the permit shall be issued as per rules even if the work has been commenced or being carried on or completed if it otherwise complies with the provisions of rule.” 13. Provided that such execution of work shall be considered as duly permitted and not one for regularisation and the permit shall be issued as per rules even if the work has been commenced or being carried on or completed if it otherwise complies with the provisions of rule.” 13. Therefore, on a close analysis of the said rule, it is clear, if and when an application is submitted to the Secretary, and the Secretary is not taking decision within a period of thirty days, as the law stood then, then the applicant is left with a remedy to approach the Village Panchayat by making a request, and if and when such a reference is made, and the Village Panchayat is not taking a decision, in accordance with sub-rule (2) within one month from the date of receipt of such written request, then a deemed permit will accrue to the applicant. 14. The contention advanced by learned counsel for the petitioners in W.P.(C) No.17259 of 2015 is that, Ext.P7 submitted by the petitioners before the Secretary is to be treated as, such an application. Ext.P7 is dated 05.11.2014 and addressed to the Secretary, in which, it is stated that the construction in accordance with the permit granted as per Ext.P5 is over, and has submitted the completion certificate of the Engineer and seeks to grant permit for the construction of the Ground and First floors. Therefore, in my considered view, the said application can never be treated as a written request in contemplation of Rule 16 of the Rules, 2011. Even though learned counsel for the petitioners submitted that it ought to have been treated as such an application, there is not even a faint indication that the said application is intended for placing it before the Panchayat, as is provided under Rule 16. Therefore, such a contention advanced cannot be accepted as one under law. 15. However, fact remains, even if a construction is carried out by the petitioners, in violation of Ext.P5 building permit, petitioners are entitled to submit a completion plan also showing the deviated constructions made and the Secretary of the Panchayat is at liberty to consider the completion plan, and identify whether the construction is carried out in accordance with the Rules, 2011, by virtue of the powers conferred under Rule 134 of Rules, 2011, which read thus: “134. Power of the Secretary to regularise certain constructions.--The Secretary shall have the power to regularise construction or reconstruction addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any work, for which permission of the Secretary is necessary under this rule commenced, being carried on completed without obtaining approved plan or in deviation of the approved plan: Provided that such construction or reconstruction or addition or alteration of any building or digging of any well or telecommunication tower or any structure or land development or any such work shall not be in violation of any of the provisions of the Act or these rules: Provided further that such power shall not relieve the Secretary of his responsibility in detecting and preventing such work and in taking other actions as per these rules: Provided also that where the construction or work was commenced, being carried on or completed after the statutory period specified in these rules, such construction or work shall be considered as duly permitted and not one requiring regularization.” 16. Therefore, in that view of the matter, the contention advanced by the Allottees' Association in the other two writ petitions that the construction carried out by the petitioners in violation of Ext.P5 permit has to be mandatorily demolished, cannot be sustained under law. So much so, the contention advanced by the Allottees' Association that in accordance with the Allotment Rules, only residential building can be constructed in the plot purchased by the petitioners has sufficient force, since the prescriptions contained under the Prospectus are in terms of the provisions of the Kerala State Housing Board Act, 1971, and the Rules constituted there under. However, the builder is entitled to file suitable application under Rule 4 of the Rules, 2011, which deals with essentiality of permit. Sub-rule (3) there under specifies that, no person shall change the occupancy of an existing building from one group to another, without first obtaining the permit from the Secretary. Therefore, the builder is left with an option to change the occupancy of an existing building, by filing a suitable application in accordance with the constructions carried out. 17. Sub-rule (3) there under specifies that, no person shall change the occupancy of an existing building from one group to another, without first obtaining the permit from the Secretary. Therefore, the builder is left with an option to change the occupancy of an existing building, by filing a suitable application in accordance with the constructions carried out. 17. In that view of the matter, these writ petitions are disposed of, leaving open the liberty of the petitioners in W.P.(C) No.17259 of 2015 to file suitable application for regularisation of the constructions carried out exceeding Ext.P5 building permit, along with a completion certificate, within two months from the date of receipt of a copy of this judgment, which shall be considered by the Secretary, invoking the powers conferred under Rule 134 of the Rules, 2011, and take appropriate decisions in accordance with law. I also make it clear that the petitioners therein are also at liberty to file suitable application seeking occupancy change in accordance with the rules specified above, and such application shall also be considered in accordance with law. Further, the petitioners are left with liberty to file any application seeking further building permit, which shall be considered by the Secretary of the Panchayat in accordance with law, and also taking into account the stipulations and prescriptions provided by the Kerala State Housing Board, in the allotment of plots to the petitioners therein. 18. The connected writ petitions are also disposed of, in the terms and directions contained in W.P.(C) No.17259 of 2015. Pending interlocutory applications, if any, will stand closed.