Kerala High Court
Jilmon John vs The Manakad Grama Panchayat on 30 September, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942
WP(C).No.4628 OF 2019(C)
PETITIONER/S:
1 JILMON JOHN
AGED 53 YEARS
S/O. JOHN, MADATHIL HOUSE,
MANAKAD P.O., 685 608,
THODUPUZHA TALUK, IDUKKI DISTRICT.
2 JINO JOHN,
AGED 53 YEARS
S/O. JOHN , MADATHIL HOUSE, MANAKAD P.O., 685 608,
THODUPUZHA TALUK, IDUKKI DISTRICT,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
JILMON JOHN ,
S/O. JOHN, MADATHIL HOUSE, MANAKAD P.O.,
685 608,
THODUPUZHA TALUK, IDUKKI DISTRICT.
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.MATHEW DEVASSI
SRI.ABY J AUGUSTINE
RESPONDENT/S:
1 THE MANAKAD GRAMA PANCHAYAT
CHITTOOR , REPRRESNTED BY ITS SECRETARY,
PUDUPARIYARAM P.O.,
IDDUKI DISTRICT 685 608.
2 THE SECRETARY,
MANAKAD GRAMA PANCHAYAT, CHITTOOR , PUDUPARIYARAM P.O.,
IDDUKKI DISTRICT 685 608.
3 ADDL.R3. P.A.THOMAS,
AGED 69 YEARS
S/O. ABRAHAM, RESIDING AT THEKKEPARAMBIL, PUTHUPERIYARAM
P.O., THODUPUZHA, IDUKKI - 685608.IS IMPLEADED AS
ADDITIONAL RESPONDENT AS PER THE ORDER DATED 15.03.2019
IN IA NO. 1/2019.
R1-2 BY ADV. SRI.M.H.HANIL KUMAR
R3 BY ADV. SRI.RAJAN VISHNURAJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-09-
2020, THE COURT ON 30-09-2020 DELIVERED THE FOLLOWING:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
W.P.(C).No.4628/2019
===============================
J U D G M E N T
Dated this the 30th September, 2020 The short issue, in this case, is about the legality of the decision on application for regularisation filed under the Kerala Panchayath Building (Regularisation Of Unauthorised Construction) Rules, 2018 (hereinafter referred to as the "Regularisation Rules 2018"). The application submitted by the petitioners has been rejected by the Panchayath. Challenging this decision, the petitioners approached this Court.
2. The first petitioner appears to have established the Hot Mix Plant without permission from the Panchayath. Thereafter, he submitted an application for building permit. He was informed the construction can be regularised only under Rule 134 of the Kerala Panchayath Building Rules, 2011 W.P.(C).No.4628/2019 -:2:- (hereinafter referred to as the "Building Rules 2011") and taking note of hazardous nature of occupancy, layout approval from the Chief Town Planner is required under Rule 61 of the said Building Rules.
3. The petitioners challenged the proceedings of the Panchayath before this Court. This Court upheld the decision of the Panchayath. In the reported decision of the Division Bench in Jilmon John and Another v. Manakad Grama Panchayath, Idukki and Others [2017 KHC 163], it was held that the proceedings of the Panchayath is legal and at para.69 of the judgment it was observed as follows:
69. As discernible from Ext.P16, the construction of the hot mix plant, building, etc. has already been completed. Since, as per Note
(ii) to Rule 34(2) of the Building Rules, minor occupancy incidental to operations in another type of occupancy shall be considered as part of the main occupancy and shall be classified under the relevant group for the main occupancy, the application for building permit made by the 1 st appellant falls under Group I hazardous occupancy. Since the area of the plot exceeds one hectare, layout approval by the Chief Town Planner is required as provided under Rule 61 of the Building Rules.
Accordingly, by Ext.P16 proceedings of the 2 nd respondent, the 1 st appellant was directed to resubmit the application after rectifying the deficiencies/defects noted therein, with reference to the mandatory requirements under Rule 61 of the Building Rules. Similarly, vide Ext.P19 proceedings of the 2 nd respondent, the 1 st appellant was W.P.(C).No.4628/2019 -:3:- informed that, since he has already made permanent construction of the plant, building, etc. in the plot in question, such constructions will have to be regularised as per W.A.No.2462 of 2016 44 the provisions of Rule 134 of the Building Rules and the Panchayat has to issue occupancy and assign building number, before considering his application for D&O licence.
The judgment of the Division Bench was rendered on 13.2.2017. Thereafter, the Government of Kerala issued Regularisation Rules 2018 as above to regularise unauthorised constructions carried out on or before 31.7.2017. The application has to be submitted within 90 days of the date of notification of the Rules. The petitioner applied within time. The notification came into force on 15.2.2018.
4. As per the Building Rules 2011, there must be width of 7 mts. access to the plot. The available width of access available to the first petitioner's Plant is below 6 mts. His unauthorised construction cannot be regularised except through the Regularisation Rules 2018.
5. The first petitioner appears to have made a huge investment in erecting this Bitumen Mixing Plant. Taking note of the delay involved, the first petitioner removed the W.P.(C).No.4628/2019 -:4:- Bitumen Mixing Plant to another Panchayath. The Panchayath considered his application. The Secretary conducted an inspection and found that there is no Bitumen Mixing Plant exist in the plot and, therefore, the application cannot be forwarded for regularisation to the District Town Planner.
6. The structure now remains in the plot is essentially part of the Bitumen Mixing Plant. The Bitumen Mixing Plant is removable. The point, therefore, to be considered is whether in the absence of Bitumen Mixing Plant, was it possible for the Secretary of the Panchayath to forward the application to the Chief Town Planner or not.
7. The Panchayat Secretary has necessary power under Rule 4 of the Building Rules 2011 to reject an application on any of the grounds mentioned under the Rules therein. However, this power is apparently exercised by the Secretary for the reason that there is no unauthorised construction to be regularised, as the Bitumen Mixing Plant has been removed even before the consideration of the application. The stand of the Panchayath is that unauthorised construction must W.P.(C).No.4628/2019 -:5:- exist in all respect at the time of filing of the application, consideration and approval by the Town Planner.
8. The access to the building is decided based on the nature of occupancy. Rule 34 of the Building Rules 2011 refers to the different nature of occupancy. Rule 37 refers to access. Admittedly, unauthorised construction is not in conformity with Rule 37 in regard to access.
9. The first petitioner's application for regularisation was in respect of the entire structure including the Bitumen Mixing Plant.
10. Building Rules 2011 defines 'structure' under Rule 2(cu) as follows:
(cu) `structure' means anything that is built or constructed or building of any kind or any piece of work, artificially built up or composed of parts joined together in some definite manner. The term `structure' shall include "building".
Regularisation Rules 2018 refers to "unauthorised construction" under Rule 2(k) as follows:
(k) "Unauthorised Construction" means any construction, addition or reconstruction as explained under Section 235AB of the Act which was carried out or completed on or before the 31 st day of July, 2017 and which the Secretary has no power to regularize under Section 235W of W.P.(C).No.4628/2019 -:6:- the Kerala Panchayat Raj Act, 1994 and Chapter XXII of the Building Rules.
A combined reading of the definition of 'structure' under the Building Rules 2011 and 'unauthorised construction' under Rule 2(k) of the Regularisation Rules 2018 makes it clear that consideration of an application under Regularisation Rules 2018 is in respect of the structure as a whole and not by way of piece-meal. It is to be noted Rules violation is depend on the nature of occupancy. Bitumen Mixing Plant also forms of part of the structure as defined under Rule 2(cu) of the Building Rules 2011. The very idea of restricting the period and time to submit the application within 90 days of notification makes the position clear that the Government had intended only to regularise unauthorised construction already in existence. That is the reason it is insisted under Rule 3(d) of Regularisation Rules 2018, time stamped photographs of unauthorised buildings applied for regularisation from all four sides should accompany the application.
11. The first petitioner's intention appears that after regularisation order is passed, he can bring back the W.P.(C).No.4628/2019 -:7:- Bitumen Mixing Plant and erect it on the civil structure. That means he seeks regularisation of the structure to come in existence in future.
12. The Regularisation Rules 2018 only contemplate unauthorised construction which is already completed and ready for occupation. Since Bitumen Mixing Plant is forming part of the structure at the time of submission of the application, it must exist in the plot at the time of construction and till order is passed. It is to be noted under Rule 8 of Regularisation Rules 2018, no further construction or regularisation is permitted once it has been regularised under the Regularisation Rules 2018. Therefore, it is clear the first petitioner is seeking regularisation based on his future act of establishing Bitumen Mixing Plant to the present plot. That cannot be done under the Regularisation Rules 2018. If no structure is available for regularisation as on the date of occupation, consideration and the time of approval, the Regularisation Rules are not attracted. The subject of regularisation must exist to invoke the Regularisation Rules 2018. In such circumstances, W.P.(C).No.4628/2019 -:8:- I am of the view that the Secretary of the Panchayat is right in rejecting the application. Accordingly, the writ petition is only to be dismissed. The writ petition is, therefore, dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 19/5/2018.
EXHIBIT P2 TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT POINTING OUT THE DEFECTS DATED 1/6/2018.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 6/8/2018 SUBMITTED BY THE PETITIONER TOGETHER WITH THE ACCOMPANYING DOCUMENTS.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 7/9/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE PLAINT IN O.S. NO. 356 / 2017 ON THE FILE OF THE MUNSIFFS COURT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 28/11/2018 IN WPC NO. 36913/2018 OF THIS HONBLE COURT.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 23/1/2019 ISSUED BY THE 2ND RESPONDENT.
RESPONDENTS EXTS:
EXHIBIT R1(A) TRUE COPY OF PHOTOGRAPHS SHOWING THE NATURE OF TAR MIXING UNIT OF THE PETITIONER EXHIBIT R1(B) TRUE COPY OF JUDGMENT IN WA 2462/2016 REPORTED IN 2017 KHC 163 EXHIBIT R1(C) TRUE COPY OF PHOTOGRAPHS SHOWING THE PRESENT STATUS OF THE PROPERTY OF THE PETITIONER