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2021 DIGILAW 1047 (KER)

Kulakkada Grama Panchayath v. Sabu Thomas

2021-11-17

VIJU ABRAHAM

body2021
JUDGMENT : Above writ petition is filed challenging Ext.P9 order passed by the 3rd respondent Tribunal for Local Self Government Institutions, in Appeal No. 337 of 2015, whereby the order passed by the 2nd petitioner, cancelling Ext.P1 building permit issued in favour of the 1st respondent was set aside. 2. The facts of the case, in brief, are as follows : The 1st respondent filed an application before the 2nd petitioner for issuance of a building permit for construction of a vehicle service station and pursuant to the same Ext.P1 building permit was issued on 16.12.2014. On the strength of Ext.P1 building permit, 1st respondent undertook the construction work. While so, Ext.P2 notice dated 26.3.2015 was affixed by the petitioners at the construction site of the 1st respondent intimating that Ext.P1 building permit issued to the 1st respondent is cancelled and that no construction shall be undertaken at the site. After issuance of Ext.P2, a major portion of the building constructed by the 1st respondent was demolished by the petitioners. Challenging Ext.P2, the 1st respondent filed Ext.P3 appeal before the 3rd respondent, Tribunal for Local Self Government Institutions. The petitioners herein filed a detailed written statement before the Tribunal mainly contending that it was by a mistake that Ext.P1 building permit was issued in favour of the 1st respondent for construction of a service station and that on 16.2.2015 Ext.P4 stop memo was issued by the 2nd respondent Village Officer and thereafter, on 18.2.2015 the 2nd petitioner also issued Ext.P5 stop memo directing the 1st respondent to stop all construction in the property. Thereafter, Ext.P7 notice was issued by the 2nd petitioner on 27.03.2015 directing to demolish the unauthorized construction within a period of 7 days failing which steps to demolish the unauthorised construction will be taken by the Panchayath. A further notice was issued on 28.03.2015 as Ext.P8 directing the 1st respondent to demolish the unauthorised construction within 24 hours and in the event of failure to do so, the Panchayath will take steps to demolish the same. 3. A further notice was issued on 28.03.2015 as Ext.P8 directing the 1st respondent to demolish the unauthorised construction within 24 hours and in the event of failure to do so, the Panchayath will take steps to demolish the same. 3. The 3rd respondent Tribunal after considering the rival contentions of the parties allowed the appeal as per Ext.P9 order dated 20.6.2016, whereby Ext.P2 notice dated 26.3.2015 issued by the 1st petitioner was set aside and the permit issued to the 1st respondent was restored, however making it clear that if the situation so requires, the 2nd petitioner, will be at liberty to initiate appropriate fresh proceedings as per law against the 1st respondent notwithstanding the issuance of Ext.P9 order. It is challenging Ext.P9 order passed by the 3rd respondent that the present writ petition is filed. 4. A detailed counter affidavit is filed on behalf of the 1st respondent mainly contending that no documents have been produced in the writ petition to rebut the factual findings of the Tribunal in Ext.P9 order. Ext.P1 building permit was issued after due inspection and verification of the documents and on the strength of the report by the overseer of the 1st petitioner panchayat and that there is no misrepresentation by the 1st respondent as alleged in Ext.P5 notice. Ext.P2 notice was not served on him in person, instead the same was affixed at the construction site, and therefore notice was not served as prescribed in Rule 3 of the Kerala Panchayath Raj (Manner of Service of Notices) Rules, 1996. It was further contended that Ext.P1 permit was cancelled without issuing a show-cause notice and without affording an opportunity of being heard and therefore the same has been done in utter violation of Rule 18 of the Kerala Panchayath Building Rules, 2011. Since the cancellation of the permit was not in accordance with the law, Ext.P9 order issued by the Tribunal interfering with the same, is perfectly legal and valid and therefore prayed for dismissal of the Writ Petition. 5. Heard Sri. Alexander George, learned counsel appearing for the petitioners and also Sri.M.V.Thamban, learned counsel appearing for the 1st respondent. 6. The question that arises for consideration is as to whether the cancellation of Ext.P1 building permit and the intimation of the same by affixing Ext.P2 notice at the construction site are in accordance with the law. 5. Heard Sri. Alexander George, learned counsel appearing for the petitioners and also Sri.M.V.Thamban, learned counsel appearing for the 1st respondent. 6. The question that arises for consideration is as to whether the cancellation of Ext.P1 building permit and the intimation of the same by affixing Ext.P2 notice at the construction site are in accordance with the law. It is admitted fact that Ext.P1 building permit was issued to the 1st respondent on 16.12.2014 and the 1st respondent undertook construction work on the strength of the same. Ext.P2 notice was affixed by the 2nd petitioner at the construction site on 26.03.2015 intimating that Ext.P1 building permit stand cancelled w.e.f from 16.12.2014, i.e. from the date of issuance of Ext.P1 building permit and further directed to stop the construction undertaken by the 1st respondent. Rule 18 of the Kerala Panchayath Building Rules, 2011 deals with suspension and revocation of the permit and the said Rule reads as follows: "18. Suspension and Revocation of permit-The Secretary shall stay, suspend or revoke any permit issued under these rules if it is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation of fact or law or that the construction if carried on will be a threat to life or property: Provided that before revoking permit, the owner of the permit shall be given 7 days notice, and an opportunity of being heard to explain and the explanation shall be duly considered by the Secretary. " [underline supplied] It is clear from a reading of Rule 18 that before cancelling/revoking a permit, the owner of the permit shall be given 7 days notice and an opportunity of being heard to explain and that the said explanation should be duly considered by the Secretary. Admittedly, the cancellation of Ext.P1 permit was without any notice and without affording any opportunity of being heard to the 1st respondent. It is only in Ext.P2 notice that the 1st respondent is informed that Ext.P1 permit dated 16.12.2014 granted in his favour is cancelled w.e.f. from the date of issuance of the same. There is no averment in the present writ petition or before the Tribunal that any notice was issued or any opportunity of hearing was granted to the 1st respondent before cancellation of Ext.P1 permit. 7. There is no averment in the present writ petition or before the Tribunal that any notice was issued or any opportunity of hearing was granted to the 1st respondent before cancellation of Ext.P1 permit. 7. Yet another contention taken by the 1st respondent is that no provisional order as contemplated under Rule 20 of the Kerala Panchayat Building Rules, 2011 was issued before undertaking demolition of the construction made by the 1st respondent on the strength of Ext.P1 building permit. While dealing with the said issue it is profitable to refer to Section 235W of the Panchayat Raj Act, 1994 along with Rule 20 of the Kerala Panchayat Building Rules, 2011 since both provisions deal with similar situations. Section 235W of the Panchayat Raj Act, 1994 mandates that when the Secretary is satisfied that any construction activity is undertaken in contravention of any of the provisions of the Act or any Rule or bylaw or order, shall make a provisional order together with a notice requiring the owner or the person for whom such work is done why the order should not be confirmed. As per Clause 3 of Section 235W, only after complying with the procedure as stated above, that the Secretary can confirm the provisional order and take further steps to cause the demolition of the unauthorised construction. A similar provision is incorporated in Rule 20 of the Kerala Panchayat Building Rules also which mandates issuance of a provisional order along with a notice requiring him to show cause within 7 days why the order should not be confirmed and only after considering the reply to show cause, the Secretary may confirm the order and take consequential steps including demolition of the unauthorised construction. A perusal of Ext.P7 notice dated 27.3.2015, which is claimed by the petitioners to be a provisional order issued under Section 235W (1) (2) of the Act will show that direction is issued to remove the unauthorised construction within a period of 7 days. The said notice cannot be considered as a notice as contemplated under Section 235W of the Act or Rule 20 of the Kerala Panchayat Building Rules, 2011 as the said provisions mandates issuance of a provisional order along with a notice requiring to show cause within a reasonable time why the order should not be confirmed. The said notice cannot be considered as a notice as contemplated under Section 235W of the Act or Rule 20 of the Kerala Panchayat Building Rules, 2011 as the said provisions mandates issuance of a provisional order along with a notice requiring to show cause within a reasonable time why the order should not be confirmed. Moreover, on the next day of the issuance of Ext.P7, i.e on 28.3.2015 a further notice was issued to the 1st respondent as Ext. P8 intimating that a decision has been taken in the Panchayat Committee held on 28.3.2015 to demolish the unauthorised construction within 24 hours and therefore, the 1st respondent was directed to demolish the construction within the said time limit and in the event of non-compliance of the said direction, construction effected by the 1st respondent will be demolished directly by the Panchayat. As per the averment in the writ petition as well as in the counter affidavit filed by the 1st respondent, on 30.3.2015 the petitioners with the assistance of several political party workers have demolished a major portion of the building constructed by the 1st respondent, and that on the very next day the materials used for the construction was attempted to be put on auction sale. Thus, it is clear that the action initiated by the petitioners is in total violation of the provisions of the Act as well as the Rules and in total disregard of the principles of natural justice. 8. The cancellation of Ext.P1 permit was without notice or hearing the 1st respondent. It is settled law that affording a pre-decisional hearing to a party who will be adversely affected by the decision is a basic requirement of the principles of natural justice. In Swadeshi Cotton Mills v. Union of India, [ (1981) 1 SCC 664 ] the Apex Court held as follows: "29. In A.K. Kraipak case [ (1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619 ] , the court also quoted with approval the observations of Lord Parker from the Queen's Bench decision in In re H.K. (Infants) [ AIR 1967 SC 1269 : (1967) 2 SCR 625 ] ; which were to the effect, that good administration and an honest or bona fide decision require not merely impartiality or merely bringing one's mind to bear on the problem, but acting fairly. Thus irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial, a duty to act fairly, that is, in consonance with the fundamental principles of substantive justice is generally implied, because the presumption is that in a democratic polity wedded to the rule of law, the State or the legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly. ……….. ………… 32. The maxim audi alteram partem has many facets. Two of them are: (a) notice of the case to be met; and (b) opportunity to explain. This rule is universally respected and duty to afford a fair hearing in Lord Lore-burn's oft-quoted language, is “a duty lying upon everyone who decides something”, in the exercise of legal power. The rule cannot be sacrificed at the altar of administrative convenience or celerity; for, “convenience and justice” — as Lord Atkin felicitously put it — “are often not on speaking terms [General Medical Council v. Spackman, 1943 AC 627, 638] ”. (underline supplied) 9. The Apex Court while explaining the principles of audi alteram partem in Basudeo Tiwary v. Sido Kanhu University, [ (1998) 8 SCC 194 ] held as follows: 9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. (underline supplied) 10. In spite of the fact that Rule 18 of the Kerala Panchayat Building Rules, 2011 specifically mandates that before revoking a permit, the owner of the permit shall be given 7 days notice and an opportunity of being heard to explain and that the explanation shall be duly considered by the secretary, none of the said procedures was followed while cancelling Ext.P1 permit issued in favour of the 1st respondent. Therefore it could be safely concluded that cancellation of Ext.P1 building permit is in clear violation of Rule 18 of the Kerala Panchayat Building Rules, 2011 and therefore arbitrary and unjust. 11. Therefore it could be safely concluded that cancellation of Ext.P1 building permit is in clear violation of Rule 18 of the Kerala Panchayat Building Rules, 2011 and therefore arbitrary and unjust. 11. The further contention taken by the 1st respondent in the counter affidavit is that Ext.P2 notice was served in total disregard of Rule 3 of the Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996, and the said rule reads as follows: "3. Serving of notice-(1) In case the Act or rules or bye-laws made thereunder requires the Panchayat to serve any notice or document to a person, such service or sending shall, unless otherwise provided in the Act or rules or bye-laws made thereunder, be done,- (a) by service or sending of notice or document to such person; or (b) if such person cannot found out, by leaving such notice or document at his last known place of abode or business or by entrusting the same to some adult member or servant of his family and in the case of employees working in firms, factories, plants and workshops where admission to notice server is prohibited or where service of notice cannot be possible in the ordinary course, by entrusting the same to the head of the institution or to any authorised person; or (c) if such person's address elsewhere is known to the Secretary, by sending the same to that address by registered post; or 500. if none of the aforesaid means are available, by affixing the notice in some conspicuous part of his abode or work place. (2) It shall not be necessary to name the owner or occupier in the notice, if such notice is regarding any building or land and in the case of joint owners and joint occupiers it shall be sufficient if the notice is served or sent to anyone of such person. (3) Any bill, notice, order, form summons, demand notice or other document served or sent under the Act or the rules made thereunder, if so provides that any fee or other sum shall be remitted or any work shall be executed, or anything shall be paid within such period fixed therein, then unless the Act or rules or bye-laws provides to the contrary, such period shall be calculated from the date of such service or sending. (4) In the case of refusal of a notice, the date of refusal shall be deemed to be the date of service." (underline supplied) Going by the said Rule, service of notice by affixture could be sought only if service of notice could not be carried out in any of the manner as prescribed in Clauses (a), (b), and (c) of Rule 3 (1) of the Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996. It is admitted by the petitioners that Ext.P2 notice was affixed at the construction site. There is no averment in the writ petition that any of the other modes of service of notice as contemplated in Rule 3(1) was attempted before service of notice by affixture or there was any difficulty in serving notice in any of the modes as prescribed in Clauses (a), (b) and (c) of Rule 3 (1). The non-service of notice as contemplated as per the Rules assumes importance in the light of the contention of the 1st respondent that undue haste has been shown in the action initiated by the petitioners as against him. Cancellation of Exhibit P1 building permit without following the procedure as provided in Rule 18 of the Kerala Panchayat Building Rules coupled with the fact that Ext.P2 notice was issued not in accordance with Rule 3(1) of Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996 will fortify the contention of the 1st respondent that the whole action of the petitioners was done in a hasty manner without complying with any of the mandatory provisions as contemplated by the Act and the Rules. This Court in B.B.P. Properties (P) Ltd v. Chengamandadu Grama Panchayat ( 2010 (1) KLT 306 ) while considering Rule 3 of Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996, though in a different context, for deciding the question as to whether if personal service of notice is not effective, can notice of rejection of application be issued by registered post or ordinary post held that when notices which have a bearing on the right of parties, including those with penal consequences, or resulting in deprivation of rights by rejecting application and claims are issued, it has to be by registered post. In the present case, the petitioners do not have a case that they have even tried to serve notice in person or through registered post. In the present case, the petitioners do not have a case that they have even tried to serve notice in person or through registered post. The petitioners have issued a notice by affixture intimating the cancellation of the permit in a very casual manner even without following any of the procedures contemplated as per the Act and Rules and such drastic action has caused serious consequence to the 1st respondent. Therefore, in the facts and circumstances of this case as enumerated above, the issuance of Ext.P2 notice cannot be said to be in accordance with the law. 12. The 3rd respondent-Tribunal has considered all these aspects while issuing Ext.P9 order, setting aside Ext.P2 notice, and restoring the permit issued to the 1st respondent. While issuing Ext.P9 order, the Tribunal also protected the interest of the petitioners by making it clear that if the situation so requires, the 2nd petitioner is at liberty to initiate appropriate fresh proceedings as per law against the 1st respondent notwithstanding the issuance of Ext.P9 order. In view of the above, I do not find any illegality in Ext.P9 order issued by the 3rd respondent Tribunal, and consequently, the above writ petition is dismissed.