Research › Search › Judgment

Kerala High Court · body

2021 DIGILAW 226 (KER)

Marakkara Grama Panchayath v. Ibrahim

2021-03-08

S.MANIKUMAR, SHAJI P.CHALY

body2021
JUDGMENT : Shaji P. Chaly, J. 1. This appeal is filed by respondents in W.P.(C) No.20578 of 2020, challenging the judgment of the learned Single Judge dated 14.10.2020, whereby the learned Single Judge allowed the Writ Petition and quashed Exhibit P9 communication issued by the 1st appellant Grama Panchayat dated 10.8.2020. Exhibit P9 is an order passed by the 2nd appellant -- the Secretary of the first appellant Grama Panchayat, whereby the building permit application submitted by the writ petitioner for construction of a commercial building in his property comprised in Sy.No.8/1B4-44, 8/1B4-45 of Ward No.20 of Marakkara Grama Panchayat was declined stating that in the site plan of the application, building No.20/118 is shown as existing building, which was already demolished and a new construction was put up by the writ petitioner and therefore, if and when an unauthorised building is existing in a property, the application for permit can be considered only after regularisation of the unauthorised building. However, learned Single Judge found that the issue with respect to the unauthorised construction is a subject matter of consideration before the Tribunal for Local Self Government Institutions in the appeal filed by the writ petitioner and if ultimately the appeal filed by the writ petitioner is rejected, the Secretary of the Panchayat will be at liberty to demolish the unauthorised construction, and there is absolutely no reason for the 2nd respondent to connect the dispute pertaining to the said building to the application submitted by the writ petitioner for grant of building permit to construct another building in the property. 2. 2. Even though a Review Petition was filed by the appellants seeking to review the judgment, it was also dismissed as per an order dated 22.12.2020 holding that a reading of Rules 3 & 11 of the Kerala Panchayat Building Rules, 2019, hereinafter called, ‘Rules, 2019’, it is clear that what is intended to be conveyed by the rule making authority is only that addition or extension of an existing building can be permitted, only if the existing building is one lawfully constructed; and that a new construction can be permitted, only if the land is one on which a building could be lawfully constructed and according to the learned Single Judge, the 2nd proviso to sub-rule(1) of Rule 3 of Rules, 2019 cannot be understood as a power conferred on the competent authority to refuse to consider an application for building permit until the unauthorised buildings, if any in the property where the building is proposed, are regularised. It is thus challenging the legality and correctness of the judgment, the appeal is preferred. 3. The paramount contention advanced by the appellants is that by virtue of the 2nd proviso to Rule 3(1)(d) of Rules, 2019, the addition, extension or new building shall be permitted, only if the site and existing buildings are authorised and therefore, the Secretary of the Panchayat having issued Exhibits P7 and P8 notices to demolish the construction put up unauthorisedly, the Secretary of the Grama Panchayat was right in requiring the writ petitioner to regularise the construction in order to consider the application for new building permit. Therefore, according to the Panchayat and the Secretary, the learned Single Judge was not right in allowing the Writ Petition and dismissing the review petition and directing the Secretary of the Grama Panchayat to consider the application for new building irrespective of the fact that the proceedings initiated against the unauthorised constructions is pending consideration before the Tribunal for Local Self Government Institutions constituted under the provisions of the Kerala Panchayat Raj Act, 1994. It is also contended that the learned Single Judge was not right in setting aside Exhibit P9 impugned order holding that as per Rule 11 of the Kerala Panchayat Building Rules, 2019, no authority is conferred on the appellants to refuse to consider an application for grant of building permit on the grounds mentioned in Exhibit P9. 4. It is also contended that the learned Single Judge was not right in setting aside Exhibit P9 impugned order holding that as per Rule 11 of the Kerala Panchayat Building Rules, 2019, no authority is conferred on the appellants to refuse to consider an application for grant of building permit on the grounds mentioned in Exhibit P9. 4. We have heard learned counsel for appellants Sri.Jamsheed Hafiz, learned counsel Sri.K.P.Sudheer for the writ petitioner/respondent and perused the pleadings and materials on record. 5. Learned counsel for appellants has addressed arguments relying upon Rules 3 & 11 of the Rules, 2019 and Sections 235A, 235B & 235W of the Kerala Panchayat Raj Act, 1994 dealing with building rules and the building constructions. The building rules are constituted under Section 235A by the State Government for the regulation or restriction of the use of sites for the construction of building and for the regulation and restriction of building construction. Section 235B of Act, 1994 specifies that, no part of the land shall be used as a site for the construction of a building and no building shall be constructed or reconstructed otherwise than in accordance with the provisions of Chapter 21 dealing with buildings and of any rules or bye-laws made under the Act, 1994 relating to the use of building sites or the construction or reconstruction of buildings. Rules, 2019 are made by the State Government to regulate the construction of buildings within the Panchayat areas and as per which, no building construction can be carried out without securing a permit, which is an imperative of Rules 3 & 4 of Rules, 2019. While Rule 3 specifies that the Building Rules, 2019, shall apply to any public or private building newly erected, altered etc. Rule 4 deals with essentiality of permit whereby the development or re-development of any parcel of land into the plots or cause the same to be done without first obtaining a permit for each such development or redevelopment from the Secretary and no person shall construct or reconstruct or make addition or extension or alteration to any building or cause the same to be done without first obtaining a building permit for each such work from the Secretary. 6. 6. Therefore, it could be seen that without securing a permit as is contemplated under the Act and the Rules, no building can be constructed or addition or alteration can be done in any property. It is also clear from Section 235W of the Act, 1994 that, if the Secretary of the Panchayat is satisfied that, the construction or reconstruction or alteration of any building has been commenced without obtaining the permit of the Secretary or in contravention of the decision of the Village Panchayat; or is being carried on, or has been completed otherwise than in accordance with the plans, specifications or information on such permission or decision was based; or is being carried, or has been completed in contravention of any of the provisions of the Act or any Rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under the Act, such rule, bye-law or order; or any alteration required by notice issued under Section 235N has not been duly made, etc., is vested with powers to order demolition. However, first proviso to 235W of Act, 1994 makes it clear that the Secretary may, on realisation of a compounding fee as may be fixed by Government, regularise any construction, re-construction, or alteration of the building, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the plan approved by him, if such construction or alteration of the building does not contravene any of the criteria or specifications mentioned in the Act or the rules made thereunder. That said, correspondingly the Secretary of the Grama Panchayat is vested with powers under Rule 92 of the Rules, 2019 to regularise construction or reconstruction or addition or alteration of any building commenced or completed without obtaining approved plan, or any deviation of the approved plan is made, provided that, such work shall not be in violation of any of the provisions of the Act or Rules. 7. 7. Anyhow, looking at the facts and circumstances of the case, it is clear and evident that the Secretary of the Grama Panchayat has issued Exhibit P7 notice dated 17.6.2020 stating that the writ petitioner has carried out unauthorised construction without obtaining permission from the Panchayat by way of demolition of old building bearing Nos.117 & 118 in possession of the writ petitioner situated in Ward No.20 of Marakkara Grama Panchayat. It is quite clear and evident from the said notice that a notice dated 18.5.2020 was issued to the writ petitioner, to which he has submitted a reply dated 8.6.2020, and according to the Secretary, the reply given was not satisfactory. It was accordingly that Exhibit P8 order dated 14.8.2020 was issued directing the writ petitioner either to submit an application for regularisation of the unauthorised construction or demolish the building within a period of 30 days and report the same to the Panchayat. Apparently, the said order is issued by virtue of the powers conferred on the Secretary under Section 235W of Act, 1994 r/w Rule 92 of the Rules, 2019. 8. Anyhow, it is an admitted fact that the said proceedings initiated by the Secretary is under challenge before the Tribunal for Local Self Government Institutions and therefore we are not inclined to express any opinion in respect to the said proceedings initiated. Here the question comes up for consideration is, whether the writ petitioner is entitled to get the application for building permit considered pending adjudication of the issue in respect of the alleged unauthorised constructions carried out ? The learned Single Judge directed the Secretary of the Panchayat to consider the building permit application irrespective of the pendency of the issue before the Tribunal for Local Self Government Institutions. In order to consider the issue, we are again resorting to Rule 3 of Rules, 2019. Rule 3, as we have specified earlier, applies to any public or private buildings in the matter of construction of the building, alteration, occupancy or use of building, addition or extension etc. The second proviso to Rule 3(1)(d) makes it clear that the addition, extension or new building shall be permitted, only if the site and existing buildings are authorised. Rule 3, as we have specified earlier, applies to any public or private buildings in the matter of construction of the building, alteration, occupancy or use of building, addition or extension etc. The second proviso to Rule 3(1)(d) makes it clear that the addition, extension or new building shall be permitted, only if the site and existing buildings are authorised. We have no hesitation to hold that Building Rules, 2019 applies not only to the development or re-development of any parcel of land wherein construction or reconstruction or addition or extension or alteration to any building is to take place but to construction, addition, alteration etc., also. Therefore, it is clear that if and when any unauthorised construction is remaining in the property due to the imperative requirement of second proviso to Rule 3(1)(d) of Rules, 2019, the Secretary is deprived from considering the building permit application without regularising the unauthorised constructions. 9. According to us, the second proviso to Rule 3(1)(d) is a mandatory requirement binding on the Secretary, and if it was found that any unauthorised construction was remaining, the Secretary shall not permit any person to put up any new building without regularising the unauthorised construction remaining in the property. However, learned Single Judge relied upon Rule 11 of Rules, 2019 dealing with the grounds on which approval of site or permission or reconstruction of a building may be rejected, to allow the writ petition and dismiss the review. 10. In our considered opinion, Rule 11 of Rules, 2019 is only for the purpose of dealing with any application submitted for approval of site or construction or reconstruction of a building and to tackle the consequences thereto, which specifies that, if the application is not in compliance with the Rules or in other relevant statutes in force, the application is to be rejected by the Secretary showing the grounds for rejection. However Rule 11(i) clearly specifies that if the work or use of the site for the work or any particulars comprised in the site plan, building plan etc., elevations, sectional elevation, or specifications would contravene provisions of any law or order, rule, declaration or bye-law made under such law; the Secretary is to reject the application showing the reason. Therefore, it is clear that whenever there is violation of the rules, the Secretary shall reject the application assigning the reason. 11. Therefore, it is clear that whenever there is violation of the rules, the Secretary shall reject the application assigning the reason. 11. Anyhow on an analysis of Exhibit P9 impugned order, the Secretary has clearly specified that the building permit application submitted by the writ petitioner cannot be considered in view of the action initiated by the Secretary against the unauthorised construction. Therefore, it could be seen that the Secretary is legally correct since the Secretary pointed out in Exhibit P9 that the building permit application cannot be considered in view of the second proviso to Rule 3(1)(d) of Rules, 2019. It is true, the action initiated by the Secretary of the Panchayat is under consideration before the Tribunal for Local Self Government Institutions and a stay order is secured by the writ petitioner. But fact remains, the question to be considered is whether mere pendency of a stay would enable the writ petitioner to secure a permit unless and until the issue in respect of the unauthorised construction alleged by the Secretary of the Panchayat is sorted out. According to us, the stay of Exhibit P8 proceedings dated 14.8.2020 apparently initiated under Section 235W of Act, 1994, can only be seen as a stay against the demolition of unauthorised construction. 13. In that view of the matter, we are of the clear opinion that interference with the judgment of the learned Single Judge is necessitated. Therefore, the judgment of the learned Single Judge is set aside and the Writ Petition is dismissed. However, we make it clear that the application for building permit submitted by the writ petitioner shall be re-considered in terms of the order passed by the Tribunal for Local Self Government Institutions in regard to Exhibit P8 order of the Secretary of Grama Panchayat dated 14.8.2020, or on any application submitted by the writ petitioner for regularisation of the alleged unauthorised construction in the property in question. Writ Appeal is allowed accordingly.