Kerala High Court
The Secretary [ In Charge ]Thrikkakara ... vs Grace Cherian on 3 March, 2025
2025:KER:17733
W.A.No.1768 of 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
WA NO. 1768 OF 2024
AGAINST THE JUDGMENT DATED 4.1.2022 IN WP(C) NO.27833
OF 2020 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 3 & 4 IN THE WRIT PETITION:
1 THE SECRETARY [IN CHARGE]
THRIKKAKARA MUNICIPALITY
KAKKANAD P.O., ERNAKULAM, PIN - 682030,
REPRESENTED BY T.K. HARIDASAN.
2 THE ASST. EXECUTIVE ENGINEER
THRIKKAKARA MUNICIPALITY
KAKKANAD P.O,
ERNAKULAM., PIN - 682030.
BY ADV S.JAMAL
RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1 & 2 IN THE WRIT
PETITION:
1 GRACE CHERIAN
AGED 60 YEARS
NEREVEETTIL HOUSE
VAZHAKKALA
THRIKKAKARA P.O
KOCHI, PIN - 682021
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W.A.No.1768 of 2024
2
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT
LOCAL SELF GOVERNMENT DEPARTMENT
SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695001
3 THE REGIONAL TOWN PLANNER
TOWN PLANNING OFFICE
CIVIL STATION
KAKKANAD
COCHIN, PIN - 682030
OTHER PRESENT:
SMT K P SANTHI- FOR R1
SRI K P HARISH, SR.GP - FOR R2 & R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
10.02.2025, THE COURT ON 03.03.2025 DELIVERED THE
FOLLOWING:
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W.A.No.1768 of 2024
3
NITIN JAMDAR, C.J.
&
S.MANU, J.
--------------------------------------------------
W.A.No.1768 of 2024
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Dated this the 03rd day of March, 2025
JUDGMENT
S.MANU, J.
Appellants are aggrieved by the judgment dated 4 January 2022
in W.P.(C)No.27833/2020 filed by the 1st Respondent and the order
dated 8 April 2022 by which R.P.No.340/2022 filed by the Appellant
seeking review of the judgment was rejected.
2. First Respondent owns property in Re.Sy.No.206/2 of
Vazhakkala Village. She had a building having 664.83 sq.m. area on
the property. Permit was sought in 2017 for constructing an additional
645.54 sq.m., a building having ground plus two floors under the
'Special Residential Building' category in the remaining extent of land
available on the property.
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3. By Ext.P1 permit dated 22 February 2017, she was permitted to
construct a total extent of 1310.37 sq.m. including the existing
construction having an area of 664.83 sq.m. Sanctioned plan has been
produced as Ext.P2 along with the writ petition. The 1 st Respondent
completed the construction in 2018. The Chief Town Planner,
Vigilance received complaints that the building was constructed in
violation of the sanctioned plan. Vigilance team conducted inspection,
found some violations and directed the Municipality to take action.
4. While so, the 1st Respondent submitted application for
completion certificate on 10 December 2018. When the Appellants
inspected the building, violations of the provisions of the Kerala
Municipality Building Rules, 1999 were noticed. Later, pursuant to an
application submitted by the 1st Respondent in the Adalath conducted
by the Appellants, a joint inspection was also conducted. Violations
noticed during the inspection were conveyed to the 1 st Respondent and
later she submitted application dated 3 September 2019 for
regularization. First Respondent produced the application for
regularization along with the writ petition marked as Ext.P5. The 1 st
Appellant forwarded the application to the Regional Town Planner, the
3rd Respondent herein, by Ext.P6 dated 29 May 2020. Calculation of
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compounding fee leviable according to the Municipality was also
enclosed with the letter. Basic compound fee was calculated as
₹79,980/-. Additional compound fee (parking) was calculated as
₹24,50,000/-. Total amount of ₹25,29,980/- has been thus shown as
the compounding fee in the computation enclosed with Ext.P6 letter.
The 3rd Respondent returned the application by Ext.P7 letter dated 29
September 2020 pointing out several defects.
5. Petitioner approached this Court in W.P.(C)No.27833/2020
seeking the following reliefs:-
"(i) issue a writ of certiorari or such other writ, direction
or order quashing Exhibit P6 as arbitrary, illegal and
unjust;
(ii) compelling the 3rd respondent to number the
building of the petitioner within a time frame to be
fixed by this Honourable Court;
(iii) issue such other writ, direction or order as is
deemed just and necessary in the facts, features and
circumstances of the case."
6. Appellants entered appearance and resisted the writ petition. A
statement and an additional statement were filed disputing the
contentions of the 1st Respondent. The learned Single Judge after
hearing all parties disposed the writ petition by judgment dated 4
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January 2022. The learned Single Judge held that the assessment of
additional compound fee contained in Ext.P6 was illegal and set aside
Exts.P6 and P7 to that extent. The Appellants filed R.P.No.340/2022
seeking review of the judgment dated 4 January 2022. The review
petition was rejected by order dated 8 April 2022.
7. Both sides have no dispute regarding the fact that regularization
sought by the 1st Respondent would be governed by the Kerala
Municipality Building (Regularization of Unauthorized Construction)
Rules, 2018. Rule 6 deals with the procedure for disposal of
applications for regularisation. Application received by the Secretary of
the Municipality needs to be processed as provided under Rule 6. If
the application received is in order, the Secretary shall forward the
documents mentioned under Rule 6(2) to the Town Planner within 60
days from the date of receipt of the application. The Town Planner at
his level has to scrutinize the application and documents. The Town
Planner may reject and return the same to the Secretary if it is not in
order. If the same is in order the Town Planner shall place the matter
before the Committee constituted by the Government within 60 days.
The Committee shall be convened by the District Town Planner.
Decision regarding regularization shall be taken by the Committee.
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Elaborate procedure for handling application for regularization has
been laid down under Rule 6. Under Rule 10, any person aggrieved by
an order issued under the provisions of the Rules may file a petition for
review to the Government.
8. We have heard the learned Standing Counsel for the Appellants
and the learned counsel for the 1st Respondent. The learned Senior
Government Pleader was also heard.
9. We find that the 1st Respondent approached this Court
challenging Exts.P6 and P7 which were two communications between
the Secretary of the Municipality and the Town Planning Office,
Ernakulam. By Ext.P6, the application for regularization of the 1 st
Respondent was forwarded along with documents including a
computation statement of compound fee. By Ext.P7, the Senior Town
Planner returned the application to the Secretary pointing out certain
defects. As we have noted in the preceding paragraphs, forwarding of
the application with necessary documents to the office of the Town
Planner from the Municipality is a preliminary step in the procedure
laid down under Rule 6 of the Regularization Rules. The Town
Planner has the authority to scrutinize the proposal and to return it to
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the Municipality in case defects are noticed. No final decision
regarding regularization or imposition of compound fee has been taken
in the case of the 1st Respondent. The communications challenged in
the writ petition were not even officially issued to the 1 st Respondent.
They are internal communications between the office of the
Municipality and the office of the Town Planning Authority, with no
copy marked to the 1st Respondent. It is not revealed in the writ
petition as to how the 1st Respondent obtained copies of these
communications. On an analysis of the scheme of the Regularization
Rules, particularly, Rule 6, communications in the nature of Exts.P6
and P7 can be reckoned only as formal communications which do not
finally decide anything adversely affecting the 1 st Respondent. Even the
calculation of compound fee by the 1st Appellant is not final as the
same will be scrutinized by the Town Planner and also by the
Committee under the Rules. In case the 1st Respondent has any
grievance regarding the final decision taken on the basis of Ext.P6,
remedy is provided under Rule 10 of the Regularization Rules, 2018.
10. In the above view of the matter, the writ petition filed by the 1 st
Respondent can be considered only as a premature one. We are
therefore of the view that the writ petition ought not have been
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entertained. We hence set aside the impugned judgment dated 4
January 2022 in W.P.(C)No.27833/2020 and consequently, the order
dated 8 April 2022 in R.P.No.340/2022 shall also stand set aside.
Writ Petition is dismissed.
11. However, all contentions of the 1 st Respondent and the
Appellants on merits are left open and the 1st Respondent shall be free
to invoke all remedies available under law in case the final decision on
her application, including compound fee fixed, is unacceptable.
12. Writ Appeal is disposed of as above.
Sd/-
NITIN JAMDAR
CHIEF JUSTICE
Sd/-
S.MANU
JUDGE
skj
