Panchayat:Repo18/Law Manual Page0338

235J. Period within which Secretary is to grant or refuse to grant permission to execute work.— Within thirty days after the date of receipt of an application made under Section 235F for permission to execute any work or of any information or of document or further information or documents required under any rules or bye-laws, made under this Act, the Secretary shall by an order in writing either grant or refuse to grant such permission on any of the grounds mentioned in Section 235L and shall intimate the fact to the applicant in writing: Provided that the said period of thirty days shall not commence until the site has been approved under Section 235 1. NOTES When applicant has chosen to approach the Civil Court to establish his right over the property, he is not justified in approaching the Writ Court seeking to survey and demarcate the area, which would be in direct conflict with jurisdiction being currently exercised by Civil Court. Writ petition in the given case, is not maintainable. A person cannot take recourse to parallel remedies on substantially same issue. Fact that suit is pending in respect of construction of compound wall at the instance of third parties and by the applicant is of no consequence for the Panchayat to consider application for building permit, when both the parties have not made the Statutory Authority, Panchayat, a party to the suit -- Mere pendency of suit does not interdict the Panchayat from exercising its statutory powers. – Thomas v. Secretary, Alagappa Nagar Grama Panchayat and Others - 2015 (2) KHC 542 : 2015 (2) KLT 273: 2015 (2) KLJ 547 : ILR 2015 (3) Ker. 291. 235K. Reference to Village Panchayat where Secretary makes delay in granting or refusing approval or permission.- (1) Where, within the period specified in Section 2351 or 235J, as the case may be, the Secretary has neither given nor refused approval of a building site, or permission to execute any work, as the case may be, the Village Panchayat shall be bound on the written request of the applicant, to determine whether such approval or permission should be given or not. (2) Whether the Village Panchayat does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute the work. But it shall not be so as to contravene any of the provision of this Act or any rules or bye-laws made thereunder. NOTES A deemed permit as such is contemplated in Section 392 of the Kerala Municipalities Act (KMA for short) in respect of a building other than a hut and Section 401 of the KMA in the case of a hut. The Procedure is to apply, wait for the period mentioned and upon there being no decision taken to move the Council and it is only when the Council also does not take a decision during the stipulated time that the law provides for deemed permission or permit. This procedure is reflected in Rule 15 as also in Rule 126. Rule 141(8) of the KMBR only provides that the Secretary is to issue a permit not later than 30 days if convinced of the boundaries and ownership of the plot, plans and drawings and genuineness of the certificates. Thus, Rule 141(8) only prescribes the duty to issue a permit it the Secretary is convinced as contemplated in the provision. It cannot be assumed that upon expiry of 30 days the Secretary is convinced of the boundaries and ownership of the plot, plans and drawings and genuineness of the certificates. - Wireless- TT Info Services Ltd. v. S.I. of Police and Others - 2011 (2) KHC 536 (DB): 2011 (2) KLT 820. There is no deemed permission only on the basis of expiry of 30 days under Rule 141(8) of the KMBR and it is not open to the rule maker to provide for consequences of a deemed permission without following the procedure by which alone a deemed permission can be obtained. Hence the petitioners cannot contend that they are entitled to proceed on the basis of a deemed to permit upon the mere expiry of 30 days from the date of submission of application under Rule 141 of the KMBR. We must notice that the rule maker has treated cases falling under Rules 15 and 126 of the Building Rules on the one hand

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