PRAKASH A v. STATE OF KERALA

SRI. E. G GORDEN – SR. GP R2 & R3 – SRI. AKHIL RAJ - SC R4 – SRI. R.HARISHANKAR - SC LIYA ELZA ALEX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30437 OF 2022 2 JUDGMENT The petitioner has filed this writ petition challenging Ext.P6 provisional order issued under Section 235 W(1) of the Kerala Panchayat Raj Act, 1994 (for short, ‘the Act’) and Ext.P7 order under Section 235 W(3) of the Act.

2. Ext.P6 notice under Section 235 W(1) has been issued by the 3rd respondent alleging that the petitioner has carried out certain constructions in violation of the provisions contained under the Kerala Panchayat Raj Act and the Kerala Panchayat Building Rules, 2019. The said notice is dated 20.09.2022. According to the petitioner, on the very same day, the 3rd respondent, the Secretary of the Panchayat has issued Ext.P7 confirming Ext.P6 provisional order.

3. Sri.Akhil Raj, the learned Standing Counsel for the Panchayat submits that even prior to Ext.P6, show cause notice under Sections 235 (F) and 235 WP(C).No.30437 OF 2022 3 W(1) were issued. However, the petitioner did not respond to Section 235 W(1) notice.

4. Sri.K.Sudhinkumar, the learned counsel for the petitioner submits that from Exts.P6 and P7 notices it can be seen that the show cause notice as well as the confirmation order has been issued on the same date.

5. On going through Ext.P7, I find that no reason whatsoever has been stated in Ext.P7 for confirming the provisional order. It is a one line, cryptic order. Though unauthorized constructions cannot be encouraged, since an order to demolish constructions amounts to civil consequences, proceedings for demolition shall be ordered only in accordance with the provisions of the Statute. If the Secretary is satisfied that the constructions are unauthorized, he has to issue a provisional order and a show cause notice. From the provisional order, it should be evident that the Secretary is satisfied that WP(C).No.30437 OF 2022 4 the construction is unauthorized. Once a provisional order is issued under Section 235 W(1) and the petitioner has been asked to show cause, the Secretary has to consider the explanation to the show cause notice, if any. It is not stated in Ext.P7 as to whether an explanation has been received. The provisional order has been confirmed in Ext.P7 without stating any reasons whatsoever. The reason for rejection must be clear from the final order under Section 235 W(3). Accordingly, I find that Ext.P7 order has been passed in total violation of the principles of natural justice.

6. An order under Section 235 W(3) has to be challenged before the Tribunal for Local Self Government Institutions. However, since the writ petition has been admitted and pending before this Court and raises issue of violation of principles of natural justice, in spite of the alternate remedy; which remedy is now foreclosed, I am inclined to WP(C).No.30437 OF 2022 5 interfere with the final order under Section 235 W. Accordingly, Ext.P7 is set aside.

7. The petitioner shall submit his explanation to Ext.P6 provisional order, within a period of two weeks from the date of receipt of a copy of this judgment. Once such explanation is received, the 3rd respondent shall pass appropriate orders thereon in accordance with law, within a period of one month thereafter. The writ petition is disposed of with the above direction. SPR Sd/- MURALI PURUSHOTHAMAN JUDGE WP(C).No.30437 OF 2022 6 APPENDIX PETITIONER’ S EXHIBITS :- EXHIBIT P1 EXHIBIT P1(a) EXHIBIT P1(b) EXHIBIT P1(c) EXHIBIT P1(d) EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT1 P7 EXHIBIT P8 TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 16- 01-2021. TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 26- 10-2021. TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 26- 10-2021. TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 26- 10-2021. TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 26- 10-2021. TRUE COPY OF THE AWARD PASSED BY THE SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY, L.A. (NH), ALAPPUZHA DATED 22-11-2021. TRUE COPY OF THE NOTICE GIVEN BY THE 3RD RESPONDENT AS NO. SC 1-1/2022 DATED 27-08-2022. TRUE COPY OF THE EXPLANATION GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 29-08-2022. TRUE COPY OF THE LETTER GIVEN BY THE 3RD RESPONDENT TO THE EXECUTIVE ENGINEER, K.S.E.B., KARUVATTA DATED 14-09-2022. TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT AS NO. 400411/BAUVO1/GENERAL ADMINISTRATION/2022/3098/2 DATED 20-09- 2022. TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 20-09-2022. TRUE COPY OF THE SKETCH OF THE SHOP ROOMS OWNED BY THE PETITIONER. WP(C).No.30437 OF 2022 7 EXHIBIT P9 EXHIBIT P10 TRUE COPY OF THE PAYMENT RECEIPT ISSUED BY THE KARUVATTA GRAMA PANCHAYAT IN RESPECT OF SHOP ROOM NO. 4/127 DATED 31- 08-2022. TRUE COPY OF THE OWNERSHIP CERTIFICATE OF SHOP ROOM NO. 4/127 IN THE NAME OF THE PETITIONER ISSUED BY THE KARUVATTA GRAMA PANCHAYAT DATED 31-08-2022. RESPONDENT S EXHIBITS :- EXHIBIT R3 (a) TRUE COPY OF THE REPORT DATED 26-08-

2022. EXHIBIT R3 (b) TRUE COPY OF THE PHOTOGRAPHS DATED 27-08-2022 SHOWING THE CONSTRUCTION IN THE REMAINING PARTS OF THE DEMOLISHED BUILDING. EXHIBIT R3 (c) TRUE COPY OF THE SANCHAYA RECORDS OF THE PANCHAYATH. EXHIBIT R3 (d) TRUE COPY OF THE SHOW CAUSE NOTICE DATED 01-09-2022 TO DEMOLISH THE ILLEGAL CONSTRUCTION MADE ON THE BUILDING (127/4). EXHIBIT R3 (e) A TRUE COPY OF THE REPORT DATED

29.08.2022. EXHIBIT R3 (f) A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 02.09.2022 ISSUED TO THE LICENSED CIVIL ENGINEER. EXHIBIT R3 (g) A TRUE COPY OF THE ORDER ALONG WITH REPORT DATED 07.10.2022. EXHIBIT R3 (h) A TRUE COPY OF THE ORDER DATED

13.01.2023. EXHIBIT R3 (i) PHOTOGRAPH DATED 16.02.2023 OF COMPLETED ILLEGAL CONSTRUCTION AND THE EXISTING BUILDINGS.