Important points
Even if a portion of the plot is sold, in order to get the protection of the provisions of Chapter VIII, that cannot cause any legal hurdle for the beneficiaries to confine their construction in accordance with the provisions of Chapter VIII- While considering the provisions of Chapter VIII, this Court will have to bear in mind that the said provisions are provided under Chapter VIII, in order to protect the interest of poor and economically weaker sections of the society, so that, interpretation of the provisions contained under Chapter VIII will have to be provided, thinking the prospects of economically weaker sections of the community-Rule 64 makes it clear that, the set backs provided under the general provisions of the Rules, 2011 are also exempted and special set backs are provided as per Rule 64- Rule 65, provisions regarding FAR, coverage, distance from central line of road, access width, height restriction with regard to width of road and the yard abutting the road, car parking dimension with regard to building parts, light and ventilation shall not apply to buildings under Chapter VIII.

The following are the reliefs sought for by the petitioner in the writ petition:

“A. That all records relating to Ext.P15 be called to this Hon'ble Court and a writ of certiorari or other order be passed quashing Ext.P15;

B. That a writ of mandamus or other order be passed directing respondents 1 to 3 not to regularize the unlawful construction made by the 4th respondent in the plot in the One Lakh Housing Scheme of Pallichal Village or not to issue any licence under the Kerala Panchayat Building Rules to the 4th respondent for the aforesaid construction;

C. That a writ of mandamus or other order be passed directing the 4th respondent not to proceed with the unlawful construction or complete the same in the plot purchased by her in the One Lakh Housing Scheme of Pallichal Village; and

D. That the petitioner be granted such further reliefs including the costs of this writ petition.”

2. Basic material facts for the disposal of the writ petition are as follows:

3. Petitioner is the additional 2nd respondent in Appeal No.1024/2012 on the files of the Tribunal for Local Self Government Institutions. The aforesaid appeal is filed by the 4th respondent herein against the order passed by respondents 2 and 3 to demolish the unauthorized construction done by the 4th respondent in 4 cents of property purchased by her under “One Lakh Housing Scheme” in Pallichal Village, without obtaining any licence from the 2nd respondent Panchayat. Petitioner is a Harijan and neighbour and an allottee under the aforesaid Scheme. The 4th respondent purchased the adjoining land, who is also a Harijan, and demolished the small house therein and constructed a multi-storied building, causing nuisance and destroying the peaceful life of the petitioner and others.

4. While so, on the complaint made by the petitioner, the Ombudsman for Local Self Government Institutions directed the 2nd respondent Panchayat to conduct enquiry and to take action in the matter. It was under the said circumstances, 2nd respondent passed the order dated 14.11.2010, directing the 4th respondent to remove the unauthorized construction. When the proceedings were going on, the 4th respondent executed a sale deed in respect of 1 cent out of the 4 cents held and applied for regularization of the construction already commenced by her, claiming benefit under Rule 62 of the Kerala Panchayat Building Rules, 2011, in respect of construction made in small plots. However, 3rd respondent directed to demolish the said building. It was the said order that was challenged before the Tribunal and the Tribunal held that the 4th respondent is entitled to get protection under Rule 62 and directed to regularize the building constructed by the 4th respondent.

5. I have heard the respective counsel across the Bar and perused the pleadings and the documents on record.

6. The paramount contention advanced by learned counsel for the petitioner is that, 1 cent of property was sold by the 4th respondent so as to secure the benefit of Chapter VIII of the Kerala Panchayat Building Rules, 2011 (hereinafter called, 'the Rules, 2011'), after starting the construction of the building, and therefore, the 4th respondent is not entitled to get protection of the provisions of Chapter VIII. The provisions of Chapter VIII deals with construction to be carried out in small plots, wherein, the area of the plot is fixed, and therefore, it is not taking care of a construction already started in a larger extent than the one provided under Rule 62 of the Rules, 2011.

7. Rule 62 of the Rules, 2011 is relevant to the context, which read thus:

“62. Provisions for construction in Small plots.--Provisions in this Chapter shall apply to construction or reconstruction of residential or commercial buildings or a combination of both in plots not exceeding 1.25 ares or 125 sq. metres in area subject to modifications in this chapter.

Provided that permit shall not be granted under this chapter to one and the same person or with his consent