Maheswari. G vs State Of Kerala
2023 Latest Caselaw 9035 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
 WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                     WP(C) NO. 17593 OF 2023


PETITIONERS:


    1    MAHESWARI.G AGED 63 YEARS W/O. THULASEEDHARAN
         PILLAI, THULASEE SADANAM, PUTHENTHARA P.O., KOLLAM
         DISTRICT, PIN - 691582

    2    SUJITH KUMAR.TAGED 38 YEARS S/O THULASEEDHARAN
         PILLAI, THULASEE SADANAM, PUTHENTHARA P.O. KOLLAM
         DISTRICT -, PIN - 691582

    3    SREEJITH.TAGED 40 YEARS S/O THULASEEDHARAN PILLAI,
         THULASEE SADANAM, PUTHENTHARA P.O. KOLLAM DISTRICT
         PIN - 691582

         BY ADV A.AHZAR


RESPONDENTS:


    1    STATE OF KERALA REPRESENTED BY THE SECRETARY TO
         GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,
         SECRETARIAT, THIRUVANANTHAPURAM -, PIN - 695001

    2    THE DISTRICT LEVEL COMMITTEE FOR REGULARIZATION OR
         UNAUTHORISED CONSTRUCTIONSKOLLAM, TOWN PLANNING
         OFFICE, SALEM-KANYAKUMARI HIGHWAY (NH47), KARBALA,
         KOLLAM DISTRICT , REPRESENTED BY ITS CONVENER, PIN
         - 691001

    3    TOWN PLANNERCONVENER OF THE DISTRICT LEVEL
         COMMITTEE FOR REGULARIZATION OF UNAUTHORIZED
         CONSTRUCTIONS, KOLLAM. TOWN PLANNING OFFICE,
         SALEM-KANYAKUMARI HIGHWAY (NH47) KARBALA, KOLLAM
         DISTRICT, PIN - 691001
 W.P.(C) No.17593/2023
                                          2



     4          NEENDAKARA GRAMA PANCHAYATHNH 47, NEENDAKARA,
                KOLLAM DISTRICT REPRESENTED BY ITS SECRETARY, PIN
                - 691582

     5          THE SECRETARYNEENDAKARA GRAMA PANCHAYATH, NH 47,
                NEENDAKARA, KOLLAM DISTRICT, PIN - 691582

     6          ENVIRONMENTAL ENGINEERKERALA STATE POLLUTION
                CONTROL BOARD, DISTRICT OFFICE, KOLLAM., PIN -
                691001

     7          THE DIRECTOR, KERALA COASTAL ZONE MANAGEMENT
                AUTHORITYDEPARTMENT OF ENVIRONMENT & CLIMATE
                CHANGE, THIRUVANANTHAPURAM, PIN - 695001

                BY SRI.PRAKASH M P FOR R7

                SRI.V.PREMCHAND FOR R4 & R5

                SRI.T.NAVEEN (SC)

                SMT.DEEPA NARAYANAN SR.GP


         THIS     WRIT   PETITION   (CIVIL)      HAVING    COME    UP    FOR
ADMISSION        ON   23.08.2023,   THE       COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.17593/2023
                                         3




                             JUDGMENT

Dated this the 23rd day of August, 2023

The petitioner along with her husband are absolute owners

of 11.95 Ares of property in Neendakara Village in

Karunagappally Taluk. The petitioner owns a building in the said

property.

2. Earlier, the petitioner filed W.P.(C) No.33315/2019

challenging Ext.P9 order whereby the application of the

petitioner for regularization of the building construction was

rejected. This Court disposed of the said W.P.(C)

No.33315/2019 as per Ext.P10 judgment wherein the 2 nd

respondent was directed to take up the request of the petitioner

for regularization of construction and to pass orders.

3. Subsequently, the District Town Planner passed

Ext.P11 order in which the District Town Planner has pointed out W.P.(C) No.17593/2023

various short comings and has also opined that clearance of

CRZ is required in the matter.

4. Based thereon, the Secretary to the Panchayat issued

Ext.P12 intimating the petitioner about the short comings in the

regularization application.

5. The counsel for the petitioner submits that among the

four defects pointed out in Ext.P12, the petitioner can clear all

the three defects at serial Nos.1, 2 and 4. However, as regards

defect at serial No.3, the CRZ clearance can be obtained only in

accordance with the procedure and the petitioner by himself

cannot obtain it.

6. It is evident from Ext.P16 that the Joint Secretary to

the Kerala Coastal Zone Management Authority has issued letter

to the Secretary to the Grama Panchayat returning the

application for CRZ clearance along with supporting documents,

for submitting directly to the concerned District Level Committee.

The application is for clearance of a constructed residential W.P.(C) No.17593/2023

building.

7. The Government Pleader would submit that the CRZ

application received from the Kerala Coastal Zone Management

Authority is forwarded to the Secretary to the Grama Panchayat

for necessary action. The Government Pleader would further

submit that the Ammonia stored in the ice plant cannot exceed 1

Kg/cm2 and in quantities of 70 m3 simultaneously. A setback of

only 60 cm is available in the South-East side of the building

which is in violation of the Building Rules also. Therefore,

regularization of unauthorised construction should ensure that

the pressure of Ammonia stored in the ice plant shall not exceed

1 Kg/cm2 and in quantities of 70 m3 simultaneously.

8. I have heard the learned counsel for the petitioner, the

learned Government Pleader representing respondents 1 to 3

and respective Standing Counsel representing respondents

4 to 7.

W.P.(C) No.17593/2023

9. The prayer of the writ petitioner in this writ petition is

to direct respondents 2 and 3 to regularize the building

constructed by the petitioners pursuant to Ext.P4 Building Permit

in the immovable property possessed by the petitioner and to

assign building number. It is evident from the pleadings and

arguments that a number of deficiencies/violations of Building

Rules are pointed out by the Panchayat as well as the District

Town Planner. The petitioner would submit that the petitioner is

willing to cure all such defects regarding the Building Rule

violations. But, as far as CRZ clearance is concerned, the matter

is under process.

10. It is to be noted that the petitioner is running the

industry for the last more than 23 years. What is made by the

petitioner is construction of an additional building. It is the said

building construction which is in dispute now. As the petitioner

has moved the Secretary to the Panchayat and as the District

Town Planner has now forwarded the CRZ application to the W.P.(C) No.17593/2023

Secretary to the Panchayat it would be only just and proper that

the Secretary is directed to process the said application.

11. The Government Pleader would submit that a revised

application dated 02.02.2022 under the Regularization of

Unauthorised Construction Rules, 2018 was forwarded to the 3 rd

respondent and even though the application was not in

conformity with the aforesaid Regulaton Rules, the application

was placed before the Committee on 18.04.2022. The

Committee has granted order for regularising the construction,

on 20.04.2022 on certain conditions which are to be satisfied.

12. Taking into consideration the afore facts, I direct the

1st respondent to forward the CRZ application to the 7 th

respondent along with all supporting documents. The Secretary

to the Panchayat shall forward the documents within a period of

two weeks and the 7th respondent will pass appropriate orders

thereon soon thereafter, as expeditiously as possible. Pending

finalisation of the CRZ clearance, respondents 4 and 5 are W.P.(C) No.17593/2023

directed to give provisional number to the buildings of the

petitioner. It is made clear that the assignment of such

provisional number will be subject to the CRZ proceedings to be

finalised by the 7th respondent. It is also made clear that for any

other statutory violation of the Building Rules, the competent

authority will be at liberty to proceed against the petitioner, if

situation so warrants.

The writ petition is disposed of as above.

(sd/-) N.NAGARESH, JUDGE

jsr/ W.P.(C) No.17593/2023

APPENDIX OF WP(C) 17593/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE LICENSE DATED 18.07.2019 ISSUED BY THE 4TH RESPONDENT PANCHAYATH

Exhibit P2 A TRUE COPY OF LICENSE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 14.10.2019

Exhibit P3 TRUE COPY OF THE REPORT OF THE EXAMINATION OF PRESSURE VESSELS AND PLANT ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS DATED 19.11.2018

Exhibit P4 A TRUE COPY OF THE BUILDING PERMIT DATED 20.05.2014 ISSUED BY THE 4TH RESPONDENT

Exhibit P5 A TRUE COPY OF THE COMPLETION CERTIFICATE DATED 15.05.2019 ISSUED BY TOWN PLANNER ENGINEER

Exhibit P6 A TRUE COPY OF THE CONSENT ISSUED BY THE ADJ.ACENT PROPERTY OWNER MR.RAJENDRA PILLAI DATED 22.04 .2017

Exhibit P7 A TRUE COPY OF THE APPLICATION FOR REGULARIZATION SUBMITTED BY THE PETITIONER DATED NIL

Exhibit P8 A TRUE COPY OF THE INSPECTION AND VERIFICATION REPORT ISSUED PANCHAYAT SECRETARY DATED NIL W.P.(C) No.17593/2023

Exhibit P9 A TRUE COPY OF THE ORDER DATED 28.01.2019 PASSED BY THE 2ND RESPONDENT

Exhibit P10 A TRUE COPY OF THE JUDGMENT W.P.(C) NO.33315 OF 2019 DATED 29.10.2021

Exhibit P11 A TRUE COPY OF THE ORDER DATED 20.04.2022 ISSUED BY CONVENER (TOWN PLANNER )

Exhibit P12 A TRUE COPY OF THE LETTER DATED 15.10.2022 ISSUED BY PANCHAYAT SECRETARY TO THE PETITIONERS

Exhibit P13 A TRUE COPY OF THE LETTER DATED 22.07.2022 ISSUED BY STATION OFFICER FIRE AND RESCUE O0FFICER CHAVARA

Exhibit P14 THE LATEST REPORT OF EXAMINATION OR TEST OF PRESSURE VESSELS OR PLANT DATED 03.01.2023 ISSUED BY COMPETENT AUTHORITY

Exhibit P15 A TRUE COPY OF THE LETTER DATED 06.03.2023 ISSUED BY THE PANCHAYAT SECRETARY TO THE PETITIONERS

Exhibit P16 A TRUE COPY OF THE LETTER DATED 13.03.2023 ISSUED BY THE JOINT SECRETARY, KCZMA TO THE PANCHAYAT SECRETARY

Exhibit P17 A TRUE COPY OF THE LETTER DATED 04.04.2023 ISSUED BY THE PANCHAYAT SECRETARY