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HIGH COURT OF KERALA
N. NAGARESH, J
MEHROOF M.V. – Appellant
Versus
THE SECRETARY, CHELEMBRA GRAMA PANCHAYATH – Respondent
WP(C)/19286/2020
Building - Construction Permit - Kerala Panchayat Building Rules - Section 69 - The court examined conditions imposed on a building permit and the need to maintain water flow, directing the respondent to consider the petitioner's request while ensuring public interests are safeguarded.
Fact of the Case:
The petitioner sought to quash a notice issued during the construction of a compound wall, claiming the imposed condition obstructed his property rights despite filing for proper permit and maintaining water flow.
Issues: Whether the condition in the building permit requiring an opening for water flow was justified and if the petitioner could modify this condition.
Ratio Decidendi: The court affirmed that public interest in water management justifies permit conditions on private construction, hence it required adherence to ensure no blockage of water.
Final Decision: The court directed the respondent to consider the application with an undertaking from the petitioner regarding water flow maintenance.
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
Dated this the 2nd day of September, 2021 The petitioner is before this Court seeking to quash Ext.P6 and to direct the 1st respondent to consider and pass appropriate orders on Ext.P8.
2. The petitioner is owner of 7 Ares and 32 square metres of land in Chelembra Village of Malappuram District. The petitioner constructed a compound wall around his property. During construction, the 1st respondent issued a notice to the petitioner under Section 69 of the Kerala Panchayat Building Rules , 2019, directing to stop the construction of the compound wall.
3. The petitioner would submit that he has submitted an application for permit to construct the compound wall. The length of the wall mentioned in the permission letter was 25.85 metres in the east and 23.95 metres in the north. On
17.08.2020, the petitioner submitted a representation before the 1st respondent pointing out the facts relating to the rain water channel and the measurement issues with the property. The petitioner requested the 1st respondent to make Ext.P8 permit updated with the exact measurements of his land boarders based on the 2nd respondent's measurements.
4. The 1st respondent thereupon issued Ext.P6 Building Permit with certain conditions. The petitioner is aggrieved by the condition stipulated in Ext.P6 that the petitioner should leave an opening in the compound wall so as to facilitate free flow of water through the water channel. The petitioner would submit that there is no public channel in his property, which is evident from Ext.P11. At the same time, the petitioner would admit that there is a small water chal from which the water flows to his compound and would state that the petitioner does not propose to obstruct that water chal.
5. Heard the learned counsel for the petitioner, learned Standing Counsel appearing for the 1st respondent and the learned Government Pleader appearing for the 2nd respondent.
6. The learned Standing Counsel submitted that there is a water chal flowing through the property of the petitioner which, if blocked, may result in unnecessary water logging problem in the area. If the petitioner constructs the compound wall fully obstructing the free flow of the water chal, it will affect the general public. It was under such circumstances that such a condition was stipulated in the Building Permit.
7. After going through the pleadings in the writ petition, this Court is of the considered opinion that the writ petition can be disposed of directing the 1st respondent to consider the application submitted by the petitioner, ensuring necessary protective measures to prevent any blockage of water.
Accordingly, the writ petition is disposed of directing the petitioner to file an undertaking before the 1st respondent- Secretary to the effect that the petitioner will construct the compound wall without obstructing the flow of water to his compound and in case there is any blockage to the flow of water, the petitioner will take care that the blockage is promptly removed. If the petitioner files such an undertaking within a period of two weeks, then the Secretary shall modify the said condition contained in Ext.P6 permit. The building permit will be issued on the basis of Ext.P4 plan.
Sd/-
N. NAGARESH, JUDGE aks/02.09.2021 APPENDIX OF WP(C) 19286/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED DATED 21/4/2008.
EXHIBIT P2 A TRUE COPY OF THE TAX RECEIPT DATED
14/08/2020.
EXHIBIT P3 A TRUE COPY OF THE NOTICE RECEIVE FROM THE 1ST RESPONDENT DATED 17/03/2020.
EXHIBIT P4 A TRUE COPY OF THE APPLICATION DATED
20/03/2020.
EXHIBIT P5 A TRUE COPY OF THE PERMIT FEE RECEIPT DATED 22/07/2020.
EXHIBIT P6 A TRUE COPY OF THE PERMIT ISSUED BY THE
1ST RESPONDENT DATED 22/07/2020.
EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DT.
17/8/20 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE DETAILED REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 17/08/2020.
EXHIBIT P9
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