(1.) This appeal is filed by respondents in W.P.(C) No.20578 of 2020, challenging the judgment of the learned Single Judge dated 14.10.2020, whereby the the learned Single Judge allowed the writ petition and quashed Exhibit P9 communication issued by the 1st appellant Grama Panchayat dated 10.8.2020. Exhibit P9 is an order passed by the 2nd appellant- the Secretary of the first appellant Grama Panchayat, whereby the building permit application submitted by the writ petitioner for construction of a commercial building in his property comprised in Sy.No.8/1B4-44, 8/1B4-45 of Ward No.20 of Marakkara Grama Panchayat was declined stating that in the site plan of the application, building No.20/118 is shown as existing building, which was already demolished and a new construction was put up by the writ petitioner and therefore, if and when an unauthorised building is existing in a property, the application for permit can be considered only after regularisation of the unauthorised building. However, learned Single Judge found that the issue with respect to the unauthorised construction is a subject matter of consideration before the Tribunal for Local Self Government Institutions in the appeal filed by the writ petitioner and if ultimately the appeal filed by the writ petitioner is rejected, the Secretary of the Panchayat will be at liberty to demolish the unauthorised construction, and there is absolutely no reason for the 2nd respondent to connect the dispute pertaining to the said building to the application submitted by the writ petitioner for grant of building permit to construct another building in the property.
(2.) Even though a review petition was filed by the appellants seeking to review the judgment, it was also dismissed as per an order dated 22.12.2020 holding that a reading of rules 3 & 11 of the Kerala Panchayat Building Rules, 2019, hereinafter called, 'Rules, 2019', it is clear that what is intended to be conveyed by the rule making authority is only that addition or extension of an existing building can be permitted, only if the existing building is one lawfully constructed; and that a new construction can be permitted, only if the land is one on which a building could be lawfully constructed and according to the learned Single Judge, the 2nd proviso to sub-rule(1) of rule 3 of Rules, 2019 cannot be understood as a power conferred on the competent authority to refuse to consider an application for building permit until the unauthorised buildings, if any in the property where the building is proposed, are regularised. It is thus challenging the legality and correctness of the judgment, the appeal is preferred.
(3.) The paramount contention advanced by the appellants is that by virtue of the 2nd proviso to rule 3(1)(d) of Rules, 2019, the addition, extension or new building shall be permitted, only if the site and existing buildings are authorised and therefore, the Secretary of the Panchayat having issued Exhibits P7 and P8 notices to demolish the construction put up unauthorisedly, the Secretary of the Grama Panchayat was right in requiring the writ petitioner to regularise the construction in order to consider the application for new building permit. Therefore, according to the Panchayat and the Secretary, the learned Single Judge was not right in allowing the writ petition and dismissing the review petition and directing the Secretary of the Grama Panchayat to consider the application for new building irrespective of the fact that the proceedings initiated against the unauthorised constructions is pending consideration before the Tribunal for Local Self Government Institutions constituted under the provisions of the Kerala Panchayat Raj Act, 1994. It is also contended that the learned Single Judge was not right in setting aside Exhibit P9 impugned order holding that as per rule 11 of the Kerala Panchayat Building Rules, 2019, no authority is conferred on the appellants to refuse to consider an application for grant of building permit on the grounds mentioned in Exhibit P9.