Judgment
WP(C) NO. 20177 OF 2023 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 15TH DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 WP(C) NO. 20177 OF 2023 PETITIONER/S:
ABDUL WAHAB K.E AGED 53 YEARS S/O. IBRAHIM, KAROTHUKUZHI VEED, KUZHIVELIPPADI, EDATHALA P.O.,ALUVA, ERNAKULAM DISTRICT, PIN - 683561 BY ADVS.
G.HARIHARAN PRAVEEN.H.
K.S.SMITHA V.R.SANJEEV KUMAR BIJOY SAM GEORGE RESPONDENT/S:
1 VENGOLA GRAMA PANCHAYAT VENGOLA P.O., PERUMBAVOOR - PUTHENKURISH ROAD, ERNAKULAM DISTRICT - 683554, REPRESENTED BY ITS SECRETARY., PIN - 683554 2 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 BY ADV P.THOMAS GEEVERGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 20177 OF 2023 2 BECHU KURIAN THOMAS, J.
======================== W.P.(C)No.20177 of 2023 ------------------------------------------------ Dated this the 15th day of November 2023 JUDGMENT
This writ petition is filed seeking a direction to grant the benefit of the deeming provision under Rule 14(2) of the Kerala Panchayat Building Rules, 2019 (‘KPBR’, 2019 for short) in respect of the application submitted by the petitioners for building permit.
2.
Petitioner alleges that on 12.05.2023, he had applied for grant of a permit, for constructing a residential building falling under Group A1.
However, despite the lapse of more than a month, a decision has not been taken and therefore, he claims to be entitled for a deemed permit as contemplated under Rule 14 of the KPBR, 2019.
3.
A statement has been filed by the 1st respondent, inter alia pointing out that petitioner’s property is situated in a remote area and that the application sought for construction of 891.17 Sq.m, which itself reveals the underlying intention of the petitioner. It was further pointed out that, some of the co-owners of the petitioner had obtained a building permit in 2011 under the guise of constructing a building and removed large quantities of earth flattening a hill, and subsequently, construction was not carried out.
It was further pointed out that the attempt of the petitioner is to flatten the remaining hill in the locality. The Panchayat also pointed out that, after
WP(C) NO. 20177 OF 2023 3 obtaining a development permit, petitioner intends to engage in large scale removal of earth and in the earlier occasion it had led to several complaints and even now the Panchayat members after visiting the site were convinced that petitioner’s attempt is to indulge in mining of mattikallu (earth) .
4.
A reply affidavit has been filed by the petitioner stating that petitioner’s predecessor-in-interest had paid the royalty for removal of rock and soil in the year 2011 and that the permission now sought by him is bonafide.
5.
I have considered the rival contentions.
6.
Rule 14 (1) of Chapter II of the KPBR deals with the delay in the grant or refusal of permit. The scheme of the aforesaid statutory provision clearly indicate that a two stage process has to be effected to claim a deemed permit. The first stage is where the Secretary of the Panchayat fails to approve or disapprove the application for building permit within 15 days from the date of receipt of application in writing. If the Secretary fails to act upon the application, the applicant will have to make a written request to the Village Panchayat, who shall thereafter be bound to determine whether the permission should be granted or not. If the Village Panchayat fails to decide on the written request within 30 days, only then will the deeming provision apply, entitling the applicant to claim that his application for building permit shall be deemed to have been allowed.
7.
A perusal of the documents produced in this writ petition, reveal that, except for filing an application before the Secretary of the Panchayat, nothing further have been carried out by the petitioner. In fact, the service date mentioned in the acknowledgment of the application refers to 19.06.2023 the date on which the service will be carried out. This writ
WP(C) NO. 20177 OF 2023 4 petition is seemed to have been filed on 19.06.2023 itself. It is evident that the petitioner has not approached the Village Panchayat through a written request as contemplated under Rule 14 (1) and (2) of KPBR. Therefore, in the absence of any evidence to show that the petitioner had approached the Village panchayat with a written request pursuant to his application for building permit, the deeming provision cannot apply.
8.
Be that as it may, petitioner’s application for building permit is bound to be considered by the 2nd respondent, in accordance with law. Even if the past history of the petitioner’s predecessor relating to the subject property is not credit worthy. The said circumstances is not a reason to refuse to consider petitioner’s application. Once an application is filed, which is permissible under Statute, necessarily, the statutory authority like the Secretary of the Panchayat has to consider the same and pass appropriate orders . He cannot delay the passing of orders. Therefore, this is a case where a direction can be issued to consider the application in a time bound manner.
9.
Accordingly, there will be a direction to the Secretary of the Panchayat, to consider the application for building permit submitted by the petitioner, as expeditiously as possible, at any rate, within a period of 30 days from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
BECHU KURIAN THOMAS
JUDGE jm/
WP(C) NO. 20177 OF 2023 5 APPENDIX OF WP(C) 20177/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE LATEST BASIC TAX RECEIPT DATED 29.04.2023 ISSUED BY THE VILLAGE OFFICER, ARAKKAPPADY VILLAGE Exhibit P2 A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE PANCHAYAT EVIDENCING RECEIPT OF THE APPLICATION SUBMITTED BY THE PETITIONER AND 5 OTHERS ON 12.05.2023 ISSUED BY THE RESPONDENT PANCHAYAT ALONG WITH SKETCH RESPONDENT ANNEXURES ANNEXURE R1[d] True copy of the Stop Memo issued by the 1st Respondent dated.30.6.2022 ANNEXURE R1[e] True copy of the Reply Submitted by the Petitioner to the 1st Respondent dated.16.6.2022 ANNEXURE R1[a] True copy of Judgement in WPc.24894/2011 dated.8.11.2011 ANNEXURE R1[b] True copy of the Development Permit issued by the 1st Respondent dated.10.6.2020 ANNEXURE R1[c] True copy of the Letter of the Muhammed Saifudheen to the 1st Respondent dated.7.5.2022 ANNEXURE R1[f] True copy of the Application dated.9.5.2023 ANNEXURE R1[g] True copy of the Report Submitted by the Assistant Engineer dated.20.5.2023 PETITIONER EXHIBITS Exhibit P3 True copy of the GST registration Certificate issued by the Authorized officer in the name M/s.Karothukuzhi Plastic Industries at Kuzhivelipady Edathala in Aluva Taluk Exhibit P4 True copy of the registration certificate registered under the Government of India with registration number 32AAFC4000A1ZM Exhibit.P5 True copy of the registration certificate registered under Government of India with registration No.32AAKPW8526B1ZN Exhibit.P6 True copy of the document No.6490/2011 of SRO, Perumbavoor executed in the name of the petitioner and others Exhibit.P7 True copy of the proceedings dated 08.05.2023 issued by the Senior Geologist, Ernakulam District demanding payment of Rs.7,11,104/- Exhibit.P8 True copy of the challan receipt No.KL004042544202324M dated 06.05.2023 evidencing receipt of Rs.7,11,104/-