Ashraf M. , S/o. Muhammed v. Thamarassery Gramapanchayat, Represented by its Secretary
2023-01-10
MURALI PURUSHOTHAMAN
body2023
DigiLaw.ai
JUDGMENT : The petitioners submitted an application for building permit before the 2nd respondent, the Secretary of the Panchayat on 13.06.2019 as evident from Ext.P4 receipt. The 2nd respondent, by Ext.R2(a) letter, pointed out certain defects in the application and the petitioners cured those defects and resubmitted the application on 05.12.2019 as evident from Ext.P5 receipt. The petitioners state that the 2nd respondent did not communicate any order on the above said application. Accordingly the petitioners submitted Ext.P7 request dated 04.03.2020 before the 1st respondent Panchayat for permit. The 1st respondent Panchayat neither approved nor disapproved the building permit within 30 days of submission of Ext. P7 request. The petitioners, therefore, contend that they have secured a deemed permit in terms of Rule 14 (2) of the Kerala Panchayat Building Rules, 2019 (hereinafter referred to as the ‘Rules' for short). The petitioners thereafter submitted Ext.P8 letter dated 08.06.2020 informing the 2nd respondent that they are commencing the construction on the basis of deemed permit. Ext. P8 was duly acknowledged by the 2nd respondent. 2. While so, the 2nd respondent issued Ext.P9 communication dated 12.04.2021 cancelling the application of the petitioners for building permit stating that the construction is not in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the ‘Act’ for short) and the Rules. 3. The petitioners contend that, the rejection of the application for building permit after thirty days from Ext.P7 request before the Village Panchayat has no consequence when rejection of the application was not communicated to them within 30 days of Ext.P7 request. Accordingly the petitioners pray for direction to quash Ext.P9 and declare that the petitioner is entitled to proceed with the construction on the basis of deemed permit. 4. A counter affidavit and an additional counter affidavit are filed by the respondents wherein it is contended that the petitioners have been informed about the defects on time and that the proposed building construction is in contravention with the provisions of the Act and the Rules and therefore the petitioner cannot claim deemed permit under Rule 14 of the Rules. 5. Heard Sri. Krishna Prasad, the learned Counsel for the petitioners, Sri. Vinod Singh Cheriyan, the learned counsel for the respondents 1 to 3 and Smt. Surya Binoy, the learned Senior Government Pleader for the 4th respondent. 6.
5. Heard Sri. Krishna Prasad, the learned Counsel for the petitioners, Sri. Vinod Singh Cheriyan, the learned counsel for the respondents 1 to 3 and Smt. Surya Binoy, the learned Senior Government Pleader for the 4th respondent. 6. Interpreting the objects behind the provisions of Section 236 (3) of the Act, the Full Bench of this Court in Abdul Kharim and Another v. Pazhayakunummel Grama Panchayat and Another [ 2018 (5) KHC 643 ], held that the local authority will have to act promptly on an application for license or permit and an applicant shall not be denied of his fundamental right to effectuate business or such other activities on account of the inert attitude of a local authority. The Full Bench observed that the very fixation of the outer limit is to uphold the fundamental rights of the citizens. In Aniyeri Satyan v. Triprangottoor Grama Panchayat and another [2018 (5) KHC 580], this Court held that if the application for license is not considered during the period prescribed for the same and no orders are communicated within that period, either granting or rejecting the license, the Panchayat cannot exercise jurisdiction to reject the same at a later occasion. The petitioners submitted application for building permit before the 2nd respondent on 13.06.2019 and resubmitted the same on 05.12.2019. The 2nd respondent did not communicate any orders on the said application till the expiry of 30 days from the date of re-submission. The petitioners, accordingly, submitted Ext.P7 request before the Panchayat Committee on 04.03.2020. However, the 1st respondent neither approved nor disapproved the building permit within 30 days of submission of Ext.P7 request. Accordingly, the petitioners have secured a valid deemed permit with effect from 04.04.2020 in terms of Section 235K (2) of the Act read with Rule 14 (2) of the Rules. Ext.P9 communication dated 12.04.2021 cancelling the application for building permit has no consequence. It is so declared. 7. Accordingly, this writ petition is allowed declaring that the petitioners have secured a valid deemed building permit with effect from 04.04.2020 under Section 235K (2) of the Act read with Rule 14 (2) of the Rules. There will be a direction to the 2nd respondent to issue building permit in paper form to the petitioners within a period of 10 days from the date of receipt of a copy of this judgment.
There will be a direction to the 2nd respondent to issue building permit in paper form to the petitioners within a period of 10 days from the date of receipt of a copy of this judgment. However, it is made clear that the entitlement of the petitioners for deemed building permit by the operation of Section 235 K (2) and Rule 14 (2) of the Rules will not stand in the way of the 2nd respondent exercising the powers to revoke the permit if it is satisfied that there is violation of the provisions of the Act and Rules or there exist other valid grounds for revocation.