C.K.Davis vs Kanjoor Grama Panchayath

Shaji P. Chaly, J

This writ petition is filed by the petitioner, who is a resident within the limits of Kanjoor Grama Panchayat, Ernakulam District, seeking to quash Exhibit P3 show cause notice dated 7.3.2013 and Exhibit P6 final order dated 5.4.2013, apparently passed under section 235W of the Kerala Panchayat Raj Act, 1994 by the Secretary of the Grama Panchayat, and Exhibit P11 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram dated 19th March, 2014, whereby the orders of the Secretary is affirmed. Brief material facts for the disposal of the writ petition are as follows;

Petitioner is the owner of a residential building bearing No.II/192A situated within Kanjoor Grama Panchayat - the 1st respondent. According to the petitioner, the construction of the building was completed in the year 2000, which was later altered in the year 2013. On the eastern side of the building, there is a lean-to with an Aluminium sheet roof supported by GI pipes, which according to the petitioner, is used to park the motorcycle of the petitioner, for drying washed clothes, and storing utensils.

The case projected by the petitioner is that the said lean-to of the petitioner was there for many years. While so, petitioner was served with Exhibit P3 notice dated 7.3.2013 by the Secretary of the Grama Panchayat – the 2nd respondent informing the petitioner that the said lean to attached to the building No.II/192A is constructed without maintaining a minimum distance from the property of the neighbour, which is clear and evident from the report submitted by the Assistant Engineer, on the basis of a complaint filed by one Paily dated 15.1.2013; further directed the petitioner to take necessary action in that regard and report the matter to the Panchayat. On receipt of Exhibit P3, petitioner has submitted Exhibit P4 reply dated 19.3.2013, which is evidently received in the office of the Panchayat on 21.3.2013, reflected from Exhibit P5 receipt issued by the Kanjoor Grama Panchayat. In Exhibit P4, petitioner has denied the allegations made in Exhibit P3 notice and submitted that there is no demarcation by and between the properties of the petitioner and his neighbour – Paily and the petitioner does know the contents of the report of the Assistant Engineer and the provisions under which the notice was issued by the Secretary.

It is also stated that there was no measurement conducted in the property in order to identify the boundary and therefore, requested to dismiss the complaint filed by the neighbour. It seems the Secretary of the Grama Panchayat, without taking into consideration Exhibit P4 objection submitted by the petitioner, passed Exhibit P6 order dated 5.4.2013 conveying that in spite of the notice dated 7.3.2013, petitioner has not taken any action to remove the illegal construction. Therefore, directed the petitioner to remove the lean - to, at a length of 5.30 metres on the eastern side and 1.80 metres & 2.50 metres width on two sides, within 7 days, and to maintain a distance of 90 Cms. from the neighbouring property, and to report the matter to the Panchayat within 7 days.

Being aggrieved, petitioner has preferred Exhibit P7 appeal before the Tribunal for Local Self Government Institutions. The Tribunal, after hearing the petitioner as well as the Panchayat, has passed Exhibit P11 order dismissing the appeal, holding that on receipt of notice Exhibit P3 notice petitioner has not filed any objection nor taken any action to remove the illegal construction; and since the construction is violative of rule 27 of the Kerala Panchayat Building Rules, 2011, there is no illegality in the order passed by the Secretary of the Panchayat. According to the petitioner, the power conferred on the Secretary of the Grama Panchayat to take for any illegal construction is under section 235W of the Kerala Panchayat Raj Act, 1994; however, none of the procedures contemplated under the said provision is complied with by the Secretary of the Grama Panchayat.

The Grama Panchayat and the Secretary have filed a joint counter affidavit supporting Exhibit P6 order passed by the Secretary dated 15.4.2013 and the order passed by the Tribunal. The 4th respondent - C.P.Thankachan, S/o.Paily, has filed a counter affidavit for himself and on behalf of respondents 5 & 6, who are his siblings, refuting the allegations and claims and demands raised by the petitioner and basically supporting Exhibit P6 order passed by the Secretary and Exhibit P11 order passed by the Tribunal.

I have heard learned counsel for the petitioner Sri.M.R.Rajesh, learned Standing Counsel Sri.V.A.Vinod, represented by Adv.Hariksirhnan.M.S., appearing for respondents 1 to 3 i.e., Kanjoor Grama Panchayat & its officials, learned counsel Smt.M.Rema Menon for respondents 4 to 6 and perused the pleadings and materials on record.

The paramount contention advanced by the petitioner is that Exhibit P3 notice dated 7.3.2013 is totally illegal, arbitrary and violative of the principles of natural justice, since no details of the alleged illegal constructions are narrated in the notice; and in spite of the request made in Exhibit P4 objection, copy of the report of the Assistant Engineer and the copy of the complaint filed by Paily was not given to the petitioner. It is also pointed out that there was no demarcation by and between the property of the petitioner & respondents 4 to 6 i.e., the children of Paily; and further that the Assistant Engineer carried out no measurement to identify the demarcating boundary of the parties. It is also submitted that Exhibit P6 order dated 5.4.2013 was passed even without considering the objections filed in Exhibit P4, and receipt of the same is evident from Exhibit P5 receipt dated 21.3.2013, bearing No.4225368, issued by the Grama Panchayat.

Learned counsel has also submitted that in Exhibit P7 appeal memorandum, it is clearly specified that the lean-to constructed by the side of the residential building was in existence for long and that the Secretary has not conducted any site inspection before issuing the impugned order; that the Secretary can pass any order of demarcation or alteration only by the procedure contemplated under section 235W of the Act, 1994; and that notice issued by the 2nd respondent dated 7.3.2013 referred in the impugned order directing the appellant to take necessary steps within 15 days is vague and unsustainable; that it is contended that the impugned Exhibit P6 order has been issued by the Secretary without hearing the petitioner and therefore, it is passed in violation of the principles of natural justice.

Whatever that be, the Tribunal after calling for the files of the Panchayat has entered into a finding that the petitioner has not responded to the notice issued by the Secretary of the Grama Panchayat, which persuaded the Secretary to pass the order without hearing the petitioner. It is also stated in the order that from the files produced by the Panchayat, it is evident that the lean - to has been constructed by the petitioner without leaving sufficient set back as provided under section 27 of the Kerala Panchayat Building Rules, 2011, and even though the petitioner has been served with a notice under section 235W stating about the unauthorised construction, the petitioner has not filed any objection.

Learned counsel appearing for the Panchayat as well as the party respondent submitted that from Exhibit P3 notice itself, it is clear that the lean to has been constructed by the petitioner encroaching into the property of respondents 4 to 6 and therefore, the notice itself is specific and clear as to the illegality committed by the petitioner. Therefore it is submitted that there is no rhyme or reason for the petitioner to contend that Exhibit P3 is not explanatory, thus disabled him from filing a proper reply to the said notice.

I have appreciated the rival submissions made across the Bar. The issue raised by the petitioner is revolving around section 235W of Act, 1994 and for convenience, it is only appropriate that the said provision is extracted, which reads thus:

“235 W. Demolition or alteration of building works unlawfully commenced, carrying on or completed. - (1) Where the Secretary is satisfied that –

(i) the construction, or reconstruction or alteration of any building -

(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the village panchayat.

(b) is being carried on, or has been completed otherwise than in accordance with the plans specifications, or information on which such permission or decision was based; or

(c) is being carried on, or has been completed in contravention of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or

(ii) any alteration required by notice issued under section 235 N, has not been duly made; or

(iii) any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 235-V, he may make a provisional order requiring the owner or the persons for whom the work is done, to demolish the work done, or any part of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alteration as may be necessary to bring the work in conformity with the provisions of this Act, bye-laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.

Provided 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.

(2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the persons for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice, why the order should not be confirmed.

(3) where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the order to such an extent as he may think fit to make and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished, as the case may be, and expenses thereof shall be recoverable from the owner or such person.

(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), prosecution proceedings may be initiated against the owner or the person for whom the work is done.

(5) Where the Government is satisfied that the construction, re-construction or alteration of any building has been carried out in violation of any of the provisions of this Act or any rule made there under or any direction lawfully given by the Government or Secretary, the Government may direct the Secretary of the Village Panchayat to cause the demolition of such construction, re-construction or alteration and if such direction is not complied within the time limit specified in such direction, the Government may arrange its demolition and the cost thereof shall be recovered from the Village Panchayat.”

On a perusal of the afore extracted provision, it is clear that a proper notice along with a provisional order is to be issued to a party, who has carried out any construction violative of the provisions of Act, 1994 and the Rules, 2011. Admittedly, petitioner is only issued with Exhibit P3 notice dated 7.3.2013 whereby, it is stated that in accordance with the report of the Assistant Engineer, petitioner has carried out construction of a lean - to close to the property of his neighbour; it is also evident that the neighbour has filed a complaint dated 15/1/2013; however, apart from the same, no other information could be gathered from Exhibit P3 regarding the illegal nature of the construction carried out by the petitioner. Admittedly, Exhibit P4 objection submitted by the petitioner is received in the office of the Panchayat on 21.3.2013, but, even without referring to the said objection, Exhibit P6 order is passed, confirming Exhibit P3 notice, wherein the illegal nature of construction is specified. There is no other order passed apart from Exhibits P3 and P6.

As I have pointed out above, Exhibit P3 is only a notice and there is no case for the Secretary of the Panchayat that Exhibit P3 is accompanied by a provisional order in contemplation of sub-section (2) of section 235W. Moreover, no details with respect to the illegal nature of construction are furnished in Exhibit P3 notice. In Exhibit P4 objection, petitioner has clearly stated that there is no measurement conducted in order to identify the property of the petitioner & the neighbour, and petitioner may be served with a copy of the report of the Assistant Engineer. In Exhibit P7 appeal memorandum also, petitioner has pointed out the illegality with respect to the notice issued by the Secretary and the procedure to be adopted by the Secretary in the matter of issuance of Exhibit P3 notice and Exhibit P6 final order. However, the Tribunal did not consider the said issues raised by the petitioner.

On a perusal of the provisions under section 235W extracted above, it is clear that a definite procedure is to be adopted in the matter of issuance of notice & provisional order, and the way in which a final order is to be passed. In my considered opinion, none of the mandatory requirements of section 235W was adhered to by the Secretary of the Grama Panchayat. The Tribunal, after going through the files, has arrived at the finding that in the permit secured by the petitioner during the year 2013, there is no description of lean - to. However, the petitioner has a case that the construction of the residential building was originally carried out in the year 2000 and the lean-to was constructed in the year 2003. Admittedly, the Kerala Panchayat Building Rules came into force only in the year 2011.

On an appreciation of the contentions put forth by the petitioner, I find much force in the same because mandatory requirements of law contained under section 235W were absolutely overlooked by the Secretary of the Grama Panchayat and the Tribunal for Local Self Government Institutions. It is well settled in law in regard to the issue at hand that when a procedure is contemplated under law to take action against any illegal construction carried out, a proper notice & a provisional order is to be issued; and an objection shall be received, and the affected party may be heard before passing the final order.

As I have pointed out above, none of the procedures contemplated under the law is followed by the Secretary. In that view of the matter, I set aside Exhibit P3 notice dated 7.3.2013, Exhibit P6 order dated 5.4.2013 passed by the Secretary of the Grama Panchayat and Exhibit P11 order of the Tribunal in Appeal No.365/13 dated 19th March, 2014 and issue the following directions:

(1) The Secretary, Kanjoor Grama Panchayat - 2nd respondent shall issue a notice under section 235W(1) along with a provisional order under section 235W(2) showing the exact nature of the violation in the construction of the lean - to attached to Building No.II/192A of the petitioner within 15 days from the date of receipt of a copy of this judgment.

(2) The petitioner shall submit his reply along with the documents within 15 days from the date of receipt of the notice and provisional order from the Secretary, as directed above.

(3) The Secretary shall conduct due inspection and inquiry any time in the intervening period as to the boundary of the petitioner and respondents 4 to 6, after providing a notice .

(4) Thereafter, hear the petitioner and respondents 4 to 6 or their representatives at the earliest, and pass a final order within 15 days from the date of hearing.

(5) The Secretary shall communicate the final order to the respective parties by registered post.

(6) Parties will be guided by the orders passed by the Secretary.