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HIGH COURT OF KERALA
SAJITHA SHAMSUDHEEN – Appellant
Versus
MELOOR GRAMAPANCHAYATH – Respondent
WP(C)/8548/2020
Building - Property Law - Kerala Panchayat Raj Act Section 220(b), Kerala Panchayat Building Rules Rule 23(1) - The court found that the construction of a building did not violate setbacks as claimed, emphasizing that prior issuance of building permit applied despite subsequent survey disputes over land ownership.
Fact of the Case:
The petitioner sought to quash an order denying regularization of a building due to alleged lack of required setback from a public road, claiming the property was abutting a public road when the permit was issued.
Finding of the Court:
The court noted that the earlier building permit was valid when granted, and any claim of puramboke land subsequent to the demolition of a compound wall did not retroactively invalidate the permit or required setbacks.
Issues: Whether the respondents correctly denied the regularization application based on setback requirements following changes in land status after the building permit was issued.
Ratio Decidendi: The court concluded that the setback restrictions did not apply as the petitioner’s land was not shown to abut puramboke land at the time of permit issuance, and thus the application for regularization should be reconsidered.
Final Decision: The court set aside the order denying regularization and required reconsideration of the application.
J U D G M E N T
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Dated this the 22nd day of September, 2021 The petitioner, who is owner of 5 Ares of land in Survey No.100/7 of Muringoor Vadakkummuri Village, has filed this writ petition seeking to quash Ext.P7 and to direct respondents 1 and 2 to allow Ext.P3 Regularisation Application if the petitioner’s building is having 3 metres or more distance from the existing road (other than the alleged puramboke land) and to direct the 1st respondent-Panchayat to number petitioner’s building covered by Ext.P2 if the building is situated beyond 3 metres distance from the existing road on the eastern boundary of Ext.P1 property.
2. The petitioner purchased the property on
22.03.2017. The eastern boundary of the property is a road now maintained by the PWD. The previous owner of the building had obtained Ext.P2 building permit for construction of a commercial-cum-residential building. The previous owner had completed a substantial portion of the construction of the building. The construction was completed by the petitioner. By 23.07.2018, the Building Permit had expired, and the petitioner came to know of this only when the petitioner applied for Occupancy Certificate. The petitioner was required to submit an application for regularisation of the construction.
3. The petitioner submitted Ext.P5 application dated
19.12.2019, for regularisation of the construction. The petitioner was then informed by the Secretary as per Ext.P7 that the Assistant Engineer has fixed the boundary of the road and consequently there is no 3 metres distance from the road boundary to the building constructed. The petitioner states that there was a compound wall to the petitioner’s property which was abutting the PWD Road. The petitioner had demolished the boundary wall. Now, after the demolition of the boundary wall, the respondents are claiming that the property of the petitioner contiguous to the foundation of the newly constructed building is puramboke land and consequently, there is no requisite set back for the building.
4. The counsel for the petitioner would contend that as per Rule 28 of the Kerala Panchayat Building Rules , 2011, the minimum distance from a building having more than seven metres height, the set back shall be three metres from the boundary of the street/road. The case of the respondents is that PWD puramboke is situated between the building and the road margin and three metres set back is not available from the puramboke land. The petitioner would urge that there is no such puramboke land and the puramboke land was found to be existing on the basis of a survey conducted behind the back of the petitioner and without notice to her.
5. The 2nd respondent-Secretary to Panchayat defended the writ petition. The 2nd respondent stated that pursuant to the interim order of this Court, the 6th respondent has inspected the site and fixed the boundaries and also identified the encroachment. After the inspection, it was found that by the Taluk Surveyor that there is an encroachment on the PWD Puramboke. After Ext.R(2)(a) communication, the Assistant Engineer of LSGD Meloor Panchayat also inspected the petitioner's property and reported that there is a violation of Rule 23(1) of the Kerala Panchayat Building Rules . Statutory open space of 3 metres from the public road is not in existence. According to the 2nd respondent, the construction has been made in violation of section 220(b) of the Kerala Panchayat Raj Act and Rule 23(1) of the , 2019. Therefore, the 2nd respondent cannot regularise the petitioner's building.
6. I have heard the learned counsel for the petitioner, learned Standing Counsel for respondents 1 to 3 and the learned Government Pleader representing respondents 4 to 6.
7. From the pleadings and arguments, it is evident that the petitioner is the owner of the property in question and the petitioner has constructed the residential cum commercial building after obtaining Ext.P2 building permit issued by the Meloor Grama
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