George Varghese vs State Of Kerala
2021 Latest Caselaw 17848 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021/10TH BHADRA, 1943
                    WP(C) NO. 37567 OF 2017


PETITIONER:

         GEORGE VARGHESE, AGED 64,
         S/O.LATE DR.T.E. GEORGE,
         AMBALAVELIL, GANDHI MUKKU,
         KOTTARAKKARA, KOLLAM 691 506.

         BY ADV SRI.V.PHILIP MATHEW


RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY ITS SECRETARY,
         DEPARTMENT OF LOCAL SELF GOVERNMENT,
         THIRUVNANTHAPURAM 695 001.

    2    JOINT SECRETARY,
         LOCAL SELF GOVERNMENT DEPARTMENT,
         KERALA GOVERNMENT SECRETARIAT,
         THRIUVANANTHAPURAM 695 001.

    3    THE CHIEF TOWN PLANNER,
         OFFICE OF THE CHIEF TOWN PLANNER,
         PALAYAM, THRIUVANANTHAPURAM 695 001.

    4    THE TOWN PLANNER,
         OFFICE OF THE TOWN PLANNER,
         KOLLAM 691 001.

    5    THE KOTTARAKKARA MUNICIPALITY,
         OFFICE OF THE KOTTARAKKARA MUNICIPALITY,
         PULAMON P.O., KOTTARAKKARA,
         KOLLAM DISTRICT 691 531,
         REPRESENTED BY ITS SECRETARY.
 WP(C) No.37567/2017
                            :2 :


     6     SECRETARY,
           KOTTARAKKARA MUNICIPALITY,
           PULAMON P.O., KOTTARAKKARA,
           KOLLAM DISTRICT 691 531.

           BY ADVS.
           GOVERNMENT PLEADER SRI.MANU RAJ
           SRI.M.K.CHANDRAMOHAN DAS, SC, KOTTARAKKARA
           MUNICIPALITY

     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 01.09.2021, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.37567/2017
                                :3 :




                        JUDGMENT

~~~~~~~~~

Dated this the 1st day of September, 2021

The petitioner challenged Ext.P16 Government

Order rejecting the application of the petitioner for regularising

the construction of his office building.

2. The petitioner owns 93 cents of land in Survey

Nos.128/6-1, 128/6-2, 128/6-3 and 128/6-4 of Kottarakkara

Village in Kollam District. The petitioner is running "Christuraj

Hospital" in a building situated thereon. The Hospital was

constructed in "L" shape during 1978-1980 when no Building

Rules applied to the then Kottarakara Panchayat. The

Panchayat was collecting building tax since the year 1981.

3. On 01.12.2003, the petitioner's mother was given

Ext.P2 Building Permit by the Panchayat for constructing a

new Hospital building adjacent to the existing one. The Kerala

Municipality Building Rules (KMBR) were made applicable on WP(C) No.37567/2017

06.06.2007. The construction of the building as per Ext.P2

was started before the KMBR was made applicable to the

Panchayat. Based on Ext.P2, first floor and second floor of the

building was completed. The Building Contractor engaged by

the petitioner abandoned the work in 2005. The dispute with

the contractor was settled only on 10.12.2011. The entire

construction, except finishing works, was completed before

10.12.2006.

4. The petitioner started the work of the third and

fourth floors and headroom. The Secretary to Panchayat

issued Ext.P4 stop memo dated 02.01.2006 alleging that the

petitioner has constructed the 2 nd and 3rd floors violating

Building Permit. The petitioner submitted Ext.P5 reply dated

04.01.2006 stating the he has not deviated from the approved

plan. In January 2007, the petitioner submitted an application

for granting approval for the layout for constructing the second,

third and fourth floors including a headroom. The Secretary

forwarded the application to the 3 rd respondent-Chief Town

Planner. The 3rd respondent rejected the application as per WP(C) No.37567/2017

Ext.P6.

5. In Ext.P6, it was stated that there is no sufficient

access width as contemplated under Rule 33 of the Kerala

Municipality Building Rules, 1999 for joining the second, third,

and fourth floors. The petitioner would submit that the said

finding contained in Ext.P6 is not correct. There is sufficient

access width as required under the Rules. The 3 rd respondent

has not caused any site inspection before issuance of Ext.P6.

Furthermore, the requirement of access width is not applicable

in the case of Panchayat areas as per the 2010 Rules. In

Ext.P6, it is alleged that Rules 39(2), (3) and (4) of the KMBR

have been violated.

6. The petitioner would submit that sub-rule 2 requires

that minimum width of stairs shall not be less than 1.20

metres. Sub-rule 3 requires minimum width of tread as 30

cms. Sub-rule 4 requires that the height of riser shall not

exceed 15 cms. In the meanwhile, the Kerala Building

(Regularisation of Unauthorised Construction and Land

Development) Rules, 2010 came into force. The said Rules WP(C) No.37567/2017

applied to all unauthorised construction carried out or

completed on or before 31.12.2008. The petitioner submitted

an application for regularisation of the construction carried out

by the petitioner.

7. The 4th respondent-Town Planner noted some

defects. The Panchayat Secretary required the petitioner to

cure the defects pointed out by the 4 th respondent in Ext.P7.

The petitioner cured all the defects and the application was

resubmitted. The 3rd respondent-Chief Town Planner made a

technical recommendation for regularisation of the

construction of the hospital building and forwarded the same to

the Government Secretary as per Ext.P8. The 3 rd respondent

also forwarded the application for regularisation with all

relevant records.

8. The 1st respondent, however, as per Ext.P9,

rejected the application for regularisation on the ground that

the alleged unauthorised construction will not come under the

purview of Rules 1(3), 2(1)(i) and 5(1)(b) of the Kerala Building

(Regularisation of Unauthorised Construction and Land WP(C) No.37567/2017

Development) Rules, 1999. The rejection was on an

erroneous assumption that only unauthorised constructions

which were completed on or before 21.12.2000, can be

considered for regularisation. The petitioner submitted a

review petition against Ext.P9. The said review was dismissed

as per Ext.P10, on 28.05.2013.

9. The petitioner filed WP(C) No.16591/2013

challenging Exts.P9 and P10. This Court, as per Ext.P12

judgment found that the benefit of Regularisation Rules will be

available to the constructions carried on, on or before

31.12.2008 and directed the Government to reconsider the

issue. Ext.P12 judgment was confirmed in W.A.

No.1130/2017. By Ext.P14 order in R.P. No.636/2017, this

Court clarified that observations adverse to the petitioner in

Ext.P12 shall not influence the 1st respondent.

10. The 1st respondent, however, rejected the

application for regularisation as per Ext.P16. The petitioner

would contend that all the three violations of Rules, 2010

mentioned in Ext.P16 proceed on a wrong notion that for WP(C) No.37567/2017

regularisation of an irregular construction, such construction

should be one completed on or before 31.12.2008, which

notion is held to be wrong in Ext.12 judgment of this Court,

which judgment was confirmed by a Division Bench of this

Court. Ext.P12 is therefore liable to be quashed, contended

the petitioner.

11. The 6th respondent-Municipality filed a statement

stating that there is violation of Rule 54(1) of the KMBR. There

is no sufficient access width as mandated under Rule 33. The

building also has not obtained a No Objection Certificate.

Hence, the writ petition is not maintainable.

12. The 3rd respondent-Chief Town Planner filed

counter affidavit. The 3rd respondent contended that the

Regularisation Rules of 2010 would apply only to constructions

carried out or completed before 31.12.2008. The petitioner

carried out constructions even after getting Stop Memo.

Access width is less than 7 metres. The revised plan

submitted by the petitioner contained portions which are

proposed to be constructed.

WP(C) No.37567/2017

13. The 3rd respondent stated that as per Rule 3(2)(f) of

the said Kerala Building (Regularisation of Unauthorised

Construction) Rules, 2010 an applicant should submit proof of

having stopped the construction before 31.12.2008. The

Rules, 2010 are applicable only to constructions completed or

stopped before 31.12.2008. As per the report of the Town

Planner, the petitioner's construction continued even

thereafter. Hence, the writ petition is liable to be dismissed.

14. Heard the learned counsel for the petitioner, the

learned Government Pleader representing respondents 1 to 4

and the learned Standing Counsel appearing for respondents

5 and 6.

15. The relevant portion of Ext.P16 impugned order

passed by the 1st respondent reads as follows:

"6. As authorised by the Secretary, Local Self Government Department the petitioner was heard by the Joint Secretary on 31.08.2017 in the presence of Chief Town Planner, Secretary, Kottarakkara Municipality, Town Planner, Kollam, Municipal Engineer, Kottarakkara Municipality etc. in accordance with the direction of the Hon'ble High Court.

7. Government have examined the matter in detail. As the building violates Rules 1(3), 2(1)(i) and WP(C) No.37567/2017

5(1)(b) of Kerala Building (Regularisation of Unauthorised Construction) Rules, 2010, Government hereby rejects the application of the petitioner, Shir. George Varghese."

The order would reveal that the matter was heard by the Joint

Secretary on 31.08.2017. The Government, after examining

the matter, held that the building in question violates Rules

1(3), 2(1)(i) and 5(1)(b) of the Kerala Building (Regularisation

of Unauthorised Construction) Rules, 2010.

16. Rule 1(3) provides that the Rules shall apply to all

unauthorised constructions carried out or completed on or

before 31.12.2008 in any Municipal area or in any Grama

Panchayat area. Rule 2(1)(i) defines 'unauthorised

construction' as any construction or reconstruction carried out

or completed on or before 31.12.2008, which the Secretary

has no power to regularise. Rule 5(1)(b) provides that the

Secretary shall verify the application for regularisation and

state whether the unauthorised construction was carried out or

constructed on or before 31.12.2008.

17. Thus, it is seen that the reason for rejection of

petitioner's application for regularisation of the building is that WP(C) No.37567/2017

the petitioner has not carried out or constructed the building

before 31.12.2008. In the judgment in WP(C) No.16591/2013,

this Court, as per Ext.P12 judgment (in Paragraph 15), held as

follows:

"By using the words 'carried out' and 'completed' within the compass of the same Rules would obviously mean that the authority intended to have some difference between these two words. Therefore, when it is mandated that the construction should have been carried out or completed, it would obviously mean that either the construction ought have been completed before that date or some work ought have been carried out before that date, obviously intending that the work should have been in progress on or before the appointed date, namely 31.12.2008. Therefore, I am of the view that the benefit of the Rules would be applicable if the construction has been carried on before 31.12.2008 and that such construction that were carried on before that day or completed before that day would also have to get the benefit of the Rules, if the petitioner is otherwise entitled to."

Ext.P16 does not show that the application for regularisation of

the construction that is carried on by the petitioner before

31.12.2008, has been considered for regularisation.

18. This aspect is significant since the petitioner has a

specific case that an independent surveyor has furnished a

report certifying that the construction work carried, of the 2 nd, WP(C) No.37567/2017

3rd, 4th floors and head room (5th floor) was completed before

10.12.2006. If that be so, the petitioner should be eligible for

consideration of his regularisation application to that extent,

going by Ext.P12 judgment. As Ext.P16 has not adverted to

this aspect, it is liable to be set aside for non-application of

mind.

In the circumstances, the writ petition is disposed of

setting aside Ext.P16 and directing the 1 st respondent to

reconsider the application for regularisation submitted by the

petitioner in the light of Ext.P12 judgment as confirmed by

Ext.P13 judgment in Writ Appeal and as clarified in Ext.P14

Review Petition, after giving an opportunity of hearing to the

petitioner, and pass orders within a period of three months.

Sd/-

N. NAGARESH, JUDGE

aks/31.08.2021 WP(C) No.37567/2017

APPENDIX OF WP(C) 37567/2017

PETITIONER'S EXHIBITS

EXHIBIT P1 COPY OF THE 2010 RULES FOR REGULARIZING UNAUTHORIZED CONSTRUCTIONS AND LAND DEVELOPMENTS SUPERSEDING THE KERALA BUILDING (REGULARIZATION OF UNAUTHORIZED CONSTRUCTION AND LAND DEVELOPMENT) RULES

EXHIBIT P2 COPY OF THE BUILDING PERMIT NO. PW 242/03 DATED 01.12.2003 ISSUED BY THE SECRETARY TO KOTTARAKARA GRAMA PANCHAYAT

EXHIBIT P3 COPY OF THE PETITION BEFORE THE CIRCLE INSPECTOR OF POLICE, KOTTARAKKARA

EXHIBIT P4 COPY OF THE STOP MEMO DATED 02.01.2006 ISSUED BY THE SECRETARY KOTTARAKKARA GRAMA PANCHAYATH

EXHIBIT P5 COPY OF THE REPLY DATED 04.01.2006 SUBMITTED BY THE PETITIONER

EXHIBIT P6 COPY OF THE COMMUNICATION DATED 10.04.2007 ISSUED BY THE 3RD RESPONDENT TO THE SECRETARY KOTTARAKKARA GRAMA PANCHAYAT

EXHIBIT P7 COPY OF THE COMMUNICATION DATED 07.04.2011 FROM THE 4TH RESPONDENT TO THE PANCHAYATH SECRETARY

EXHIBIT P8 COPY OF THE TECHNICAL REPRESENTATION OF THE THIRD RESPONDENT C3/6640/11 ®

EXHIBIT P9 COPY OF THE ORDER NO. 67274/RA3/2011/LSGD DATED 23.12.2011 PASSED BY THE FIRST RESPONDENT

EXHIBIT P10 COPY OF THE ORDER NO. 4176/RA3/12/LSGD DATED 28.05.2013 PASSED BY THE FIRST RESPONDENT WP(C) No.37567/2017

EXHIBIT P11 COPY OF THE FIRE REPORT NO. 47/15 PREPARED BY THE STATION OFFICER, FIRE & RESCUE STATION, KOTTARAKKARA

EXHIBIT P12 COPY OF THE JUDGMENT DATED 20.02.2017 IN WPC.NO. 16591/13

EXHIBIT P13 COPY OF THE JUDGMENT DATED 08.06.2017 IN WA.NO. 1130/17

EXHIBIT P14 COPY OF THE ORDER DATED 20.07.2017 IN RP.NO. 636/17

EXHIBIT P15 COPY OF THE ARGUMENT NOTE EXCLUDING THE ENCLOSURES

EXHIBIT P16 COPY OF THE ORDER DATED 16.10.2017 PASSED BY THE FIRST RESPONDENT ncd