ALI v. VILLAGE OFFICER

their own land at their own cost, which was accepted by the parties. However, after the meeting, they again started to develop their lands by dumping soil in the dip land and continued the building construction work. Due to the construction work, the entire culvert is under the converted land and there is no space or land available to carry the runoff water during the upcoming rainy season. It is further alleged that the private parties, including the petitioner, had WP(C) NO. 12350 OF 2023 7 illegally closed the culvert outlet for their own benefits and hence, they are responsible for making an alternative way to carry the natural runoff.

7. An additional counter affidavit was filed by the 2nd respondent pursuant to the direction of this Court wherein it is inter alia stated that petitioner himself had submitted an undertaking in writing on 18.02.2022 admitting the factum of encroachment and agreed to reconstruct the drainage, which was blocked and filled by him. A copy of the alleged undertaking dated 18.08.2022 was produced as Ext.R2(d). The 2nd respondent further stated that proceedings against the petitioner have already been taken under the Disaster Management Act since the culvert is being interfered with by the petitioner.

8. I have heard Sri.P.T.Sheejish, the learned counsel for the petitioner, Sri.K.V.Manoj Kumar, the learned Senior Government Pleader and Sri.C.A.Chacko, the learned Standing Counsel.

9. During the course of the hearing, since petitioner had denied any undertaking having been given by him regarding the construction of the culvert, and on perusing the document produced, a doubt arose regarding the veracity of Ext.R2(d). Hence, the original files were called for, and I have perused those as well. WP(C) NO. 12350 OF 2023 8

10. The issue relates to an application submitted by the petitioner for the construction of a commercial building on his own property. Though the final application after rectification of the defects was submitted on 16.04.2022, till date, the 4 th respondent has not passed any orders.

11. However, assuming that the failure to communicate has given rise to a deemed permit, the petitioner commenced the construction. In the meantime, on the basis of the communication from the 2nd respondent that an NOC is necessary from the PWD, the 4th respondent issued a stop memo to the petitioner.

12. The first question to be considered is whether the petitioner has obtained a deemed permit. In this context, the decision in G.George and Ors. v. Pooyappally Grama Panchayath [2020 (6) KHC 652] is relevant. Dealing with the provisions of the Kerala Panchayat Building Rules, 2011, the Division Bench of this Court held that even if an application for a building permit was submitted and no action was taken, it cannot be said that the applicant will be entitled to get a deemed permit. It was further observed that Section 236(3) of the Kerala Panchayat Raj Act, 1994, is a general provision which will not come into play in the case of building permits. WP(C) NO. 12350 OF 2023 9

13. The learned counsel for the petitioner could not point out any provision under the Kerala Panchayat Building Rules, 2019, which confers a deeming status to an application for a building permit, unlike that in the Kerala Municipality Building Rules, 2019. A deemed licence is a creation of the statute. In the absence of any statutory provision conferring a deemed building permit under the KPBR and in view of the judgment in George's case (supra), the claim of the petitioner that he has obtained a deemed building permit is not legally tenable and is hence rejected.

14. Notwithstanding the above, petitioner’s application for building permit is pending consideration before the 4th respondent. Building permits are to be considered in a time-bound manner, and the same cannot be kept pending unnecessarily under one pretext or the other. In the instant case, the 4th respondent contends that an NOC from the Public Works Department is necessary before commencing construction of the building. The reason for insisting on NOC from the PWD is the existence of a culvert opening into petitioner’s property. The PWD states that the petitioner must construct a culvert or divert the opening of the culvert through his property, for which the building permit should not be granted unless such construction is carried out. However, such a requirement is WP(C) NO. 12350 OF 2023 10 contrary to law. In fact, the Public Works Department could not have constructed any drainage or culvert through a private property unless the said property was acquired under law. Further, the PWD cannot also open a culvert into the petitioner’s property alleging the natural flow of water into such property and thereafter demand the same to be retained throughout. As an owner of a property petitioner has the proprietary right to do any activity on his land subject to regulatory provisions of law. No one has any right to construct drainage through petitioner's property, nor can a person open a drain or a culvert into petitioner's property. Petitioner can also prevent any drain from being opened into his property in exercise of his rights as an owner of the property.

15. In this context, it is necessary to advert to Ext.R4(d), which is purported to be an undertaking given by the petitioner. As mentioned earlier, since this Court felt doubt about the veracity of Ext.R4(d), the original files were called for. It is noticed from Ext.R4(d) as well as from the original files that the said alleged undertaking kept in the files are not signed by any person. Ext.R2(d) is not signed by the petitioner, and instead, two ‘X’ marks are put in pencil in the original letter indicating the space in which the signatures are to be affixed. Rather, curiously, this letter WP(C) NO. 12350 OF 2023 11 is seen to have been acted upon, as is evident from the endorsements on the first page. It needs no elaborate consideration to arrive at a conclusion that the said letter must have been prepared by someone intending it to be signed by the petitioner and another person. Though there is no signature, the said document has been utilized as a signed document. The said conduct is highly deprecated, and it is held that petitioner has not given any undertaking to provide the drainage through his property as stated in Ext.R2(d). No obligation or liability can be fastened on the petitioner on the basis of Ext.R2(d), which is an inchoate document and cannot be acted upon. Producing such an unsigned document and claiming the same to have created a liability upon the petitioner is unwarranted and highly improper.

16. Even otherwise, the attempt of the second respondent is to compel the petitioner to construct a drainage through his private property. Petitioner as the owner of a property is entitled to enjoy every inch of his property without interference from any person. The PWD is not entitled to compel the petitioner to construct a drainage at his cost through his property. If a drainage has to be constructed through petitioner’s property, the only remedy available under the law is to acquire the same and construct it. As long as no WP(C) NO. 12350 OF 2023 12 proceeding for the acquisition of land of the petitioner has been initiated, the PWD cannot compel the petitioner to obtain an NOC from them for constructing a building. The demand of the PWD to obtain an NOC from them or to construct a drainage through his property is illegal, arbitrary and not valid under law. In the above circumstances, Ext.P5 stop memo is set aside to the extent it observes that NOC is required from the PWD. There will be a direction to the 4th respondent to consider and pass appropriate orders on the application for building permit submitted by the petitioner on 16.04.2022, as expeditiously as possible, at any rate, within a period of 30 days from the date of receipt of a copy of this judgment. It is clarified that while passing orders as directed above, neither shall NOC from the PWD nor any condition for constructing a culvert or drainage through the petitioner’s property be insisted upon. Needless to say, petitioner will not be entitled to construct the building without obtaining a building permit as per law. The writ petition is allowed in part as above. RKM Sd/- BECHU KURIAN THOMAS, JUDGE WP(C) NO. 12350 OF 2023 13 APPENDIX OF WP(C) 12350/2023 PETITIONER'S EXHIBITS : Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 TRUE COPY OF THE LAND TAX RECEIPT ISSUED IN FAVOR OF THE PETITIONER DATED 06/10/2022 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT DATED 20.12.2021 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT RESUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 16.04.2022 TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING UNDER CONSTRUCTION TRUE COPY OF THE STOP MEMO ISSUED BY THE 3RD RESPONDENT PANCHAYAT TO THE PETITIONER DATED 21.03.2023 THE TRUE COPY OF THE COMPLAINT DATED 09.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT RESPONDENTS' EXHIBITS : EXHIBIT R2(A) EXHIBIT R2(B) TRUE COPY OF THE LETTER SUBMITTED BY THE 2ND RESPONDENT TO THE ASSISTANT EXECUTIVE ENGINEER(ROADS),MANJERI DATED.17.06.2022. TRUE COPY OF THE LETTER DATED 06.07.2022 ISSUED BY THIS RESPONDET TO THE ASSISTANT EXECUTIVE ENGINEER (ROAD SUB DIVISION) MANJERI. EXHIBIT R2(C) TRUE COPY OF THE LETTER ISSUED BY THE EXECUTIVE ENGINEER DATED 05.07.2022 TO THE DISTRICT COLLECTOR, MALAPPURAM. EXHIBIT R2(D) TRUE COPY OF THE UNDERTAKING GIVEN BY THE PETITIONER DATED.18.08.2022. WP(C) NO. 12350 OF 2023 14 EXHIBIT R2(E) TRUE COPY OF THE PHOTOGRAPH SHOWING THE EVIDENCE OF THE EXISTENCE OF CULVERT. EXHIBIT R2(F) THE PHOTOGRAPH SHOWING THE FACT THAT UPON THE CULVERT SEEN IN EXHIBIT R2(D) PHOTOGRAPH, CONSTRUCTION HAS BEEN MADE UNAUTHORIZEDLY WITHOUT ANY VALID PERMIT BY THE WRIT PETITIONER. EXHIBIT R2(G) TRUE COPY OF THE MINUTES F THE MEETING DATED.10.11.2022. EXHIBIT R2(H) TRUE COPY OF THE ABOVE COMMUNICATION DATED 24.01.2023. EXHIBIT R2(I) TRUE PHOTOCOPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY ON 14.07.2022. EXHIBIT R4(A) TRUE COPY OF COMMUNICATION DATED 21/04/2022 ISSUED BY 2ND RESPONDENT EXHIBIT R4(B) TRUE COPY OF COMMUNICATION DATED 7/06/2022 ISSUED BY THE 4TH RESPONDENT EXHIBIT R4(C) TRUE COPY OF COMMUNICATION DATED 6/09/2022 ISSUED BY THE 2ND RESPONDENT EXHIBIT R4(D) TRUE COPY OF COMMUNICATION DATED 1/11/2022 ISSUED BY DISTRICT COLLECTOR, MALAPURAM