Kerala High Court
Hamsa Haji vs The State Of Kerala
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938
WP(C).No. 19368 of 2012 (U)
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PETITIONER:
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HAMSA HAJI, PARTNER,
TAJ CONVENTION CENTRE,
CHAKKI PARAMBATH HOUSE,
THIRURANGADI.P.O.,
MALAPPURAM DIST-676306.
BY SRI.K.GOPALAKRISHNA KURUP (SENIOR ADVOCATE)
ADVS.SRI.S.MANU
RESPONDENT(S):
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1. THE STATE OF KERALA,
REP. BY THE SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
2. DEPUTY DIRECTOR OF PANCHAYATHS,
MALAPPURAM.
3. THE SECRETARY,
THIRURANGADI GRAMA PANCHAYATH,
THIRURANGADI.P.O.,
MALAPPURAM DISTRICT-676306.
4. VIJAYA KRISHNAN, PANTHALODY HOUSE,
CHEMMAD., P.O. THIRURANGADI,
MALAPPURAM DIST., PIN-676306.
5. THIRURANGADI GRAMA PANCHAYATH,
REP. BY ITS SECRETARY, THIRURANGADI.P.O.,
MALAPPURAM DIST., PIN-676306.
--2--
--2--
WP(C).No. 19368 of 2012 (U)
---------------------------
*ADDL. R6 IMPLEADED
6. KAKKI, W/O LATE MANUKUTTAN,
PATHALODI HOUSE, CHEMMAD,
THIRURANGADI TALUK, MALAPPURAM DISTRICT,
REPRESENTED BY POWER OF ATTORNEY HOLDER,
SUBRAMANYAN, S/O.LATE MANUKUTTAN,
RESIDING AT PATHALODI HOUSE, CHEMMAD,
THIRURANGADI P.O. - 676 306.
ADDL. R6 IS IMPLEADED AS PER ORDER
DATED 08.01.2016 IN IA.59/2016.
**ADDL. R7 & R8 IMPLEADED
7. THE SECRETARY
THIRURANGADI MUNICIPALITY, THIRURANGADI PO.,
MALAPPURAM DISTRICT, PIN - 676 306.
8. THIRURANGADI MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
THIRURANGADI PO.,
MALAPPURAM DISTRICT, PIN - 676306.
ADDL. R7 & R8 ARE IMPLEADED AS PER ORDER
DATED 22.03.2016 IN IA.3898/2016.
R1 & R2 BY GOVERNMENT PLEADER SRI.MANZOOR ALI
R3 & R5 BY SRI.T.SETHUMADHAVAN(SENIOR ADVOCATE)
ADVS.SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANKUMAR
SMT.VANDANA MENON
R4 BY ADV. SRI.P.NANDAKUMAR
ADDL.66 BY SRI.N.SUKUMARAN(SENIOR ADVOCATE)
ADV.SRI.KIRAN PETER KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-06-2016 ALONG WITH WPC.34214/2015, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
mbr/
WP(C).No. 19368 of 2012 (U)
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APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: TRUE COPY OF THE PHOTOGRAPHS.
EXT.P2: TRUE COPY OF THE REPORT OF THE ASSISTANT ENGINEER.
EXT.P3: TRUE COPY OF THE REGULARISATION ORDER DATED 27-10-09.
EXT.P4: TRUE COPY OF THE TAX RECEIPTS.
EXT.P5: TRUE COPY OF THE ORDER DATED 14-7-10 ISSUED BY THE
3RD RESPONDENT.
EXT.P6: TRUE COPY OF THE STAY ORDER DT. 15-7-2010.
EXT.P7: TRUE COPY OF THE JUDGMENT IN WPC NO.26120/2010.
EXT.P8: TRUE COPY OF THE ORDER OF THE TRIBUNAL IN
APPEAL NO. 613/2010.
EXT.P9: TRUE COPY OF THE REGULARISATION APPLICATION.
EXT.P10: TRUE COPY OF THE COMMUNICATION/ORDER DATED 8-5-12.
EXT.P11: TRUE COPY OF THE REVIEW PETITION DATED 14-5-2012.
EXT.P12: TRUE COPY OF THE REPLY DATED 9-6-2011.
EXT.P13: TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT
DATED 9-6-2011.
EXT.P14: TRUE COPY OF THE NOTICE DATED 12-7-2012 ISSUED BY THE
3RD RESPONDENT.
EXT.P15: TRUE COPY OF THE LETTER SENT BY THE 2ND RESPONDENT
DATED 20-6-2012.
EXT.P16: TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF
GOVERNMENT INSTITUTIONS DATED 14-2-2012.
EXT.P17: TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF
GOVERNMENT INSTITUTIONS DATED 29-10-2009.
RESPONDENTS' EXHIBITS:
EXT.R3(A): TRUE COPY ORDER OF THE HON'BLE OMBUDSMAN
DATED 30.6.2012.
EXT.R4(A): TRUE COPY OF THE COMPLAINT ORIGINAL PETITION
NO.2029/2010 FILED BY THE 4TH RESPONDENT BEFORE THE
1ST RESPONDENT.
//TRUE COPY//
P.S. TO JUDGE
mbr/
P.V.ASHA, J.
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W.P(C) Nos.19368 of 2012-U
and
34214 of 2015-B
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Dated this the 14th day of June, 2016
JUDGMENT
The very same petitioner has filed both these Writ Petitions challenging the action of the Municipality which found violation of building rules in construction of a building which is presently functioning as an Auditorium in the name and style of Taj Convention Centre in Tirurangadi Municipality. The parties and documents referred to herein are as described in W.P.(C). No. 19368 of 2012, unless otherwise specified. Ms.Kaki who is the additional 6th respondent in both these cases, and her son, who is the 4th respondent in W.P(c) No.19368 of 2012, allege that the lateral support of their residential property is lost due to the construction of the building in violation of rules.
2. Sri Hamsa Haji, who is the petitioner along with 7 others including Sri U.P.Ahamedkutty Haji, constructed a building within the limits of Tirurangadi Grama Panchayat, W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 2 which is presently under the Tirurangadi Municipality. In the year 2009, when the construction was going on, the Panchayat had issued an order on 30.01.2009 alleging violation of the provisions contained in the Kerala Panchayat Raj Act read with the Kerala Municipal Building Rules, 1999 (`KMBR' for short). Thereupon, the owners of the building submitted an application for regularisation of the construction under the rules then in force, as the construction was already completed. Orders were issued on 27.10.2009 regularising the construction.
3. Thereafter, the Panchayat issued Ext.P5 stop memo on 14.07.2010, directing to stop all the construction works in respect of the Auditorium and in the premises, saying that the construction was being carried out contrary to Rules. The stop memo was stated to be issued, on the basis of a direction of the Government in its letter dated 1.7.2010. Sri Ahamedkutty Haji challenged the same filing Appeal No.613 of 2010 before the Tribunal for Local Self Government Institutions (`Tribunal' for short) and by Ext.P6 order, the Tribunal stayed the action of the Panchayat. The additional 6th respondent Smt.Kaki challenged the order passed by the Tribunal in W.P(c) No.26120 of 2010 W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 3 alleging that the construction was being carried out without providing a lateral support to her property by providing a new retaining wall. The Government had issued directions to the Panchayat to stop the construction, based on her complaint. This Court, after hearing the parties, directed the Tribunal to dispose of the matter and directed the parties to maintain status quo till then. Thereafter by Ext.P8 order dated 14.10.2010, the Tribunal allowed the appeal as it was found that permit was already issued for the construction of the Auditorium; it was not suspended or revoked; either the nature of violation or the provisions which were violated were not stated in Ext.P5 stop memo dated 14.7.2010, which only stated that it was issued on the basis of the order of the Government, directing to stop the construction of the Auditorium. The Tribunal found it unsustainable under Rule 16 of the KMBR as well as Section 235 (X)(1) of the Kerala Panchayat Raj Act. However the Secretary of the Panchayat was directed to conduct proper local inspection with reference to records and to verify whether there were any grounds for initiating proceedings under Rule 16 of the KMBR and under Section 235 X(1) and 235W of the Kerala Panchayat W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 4 Raj Act and to prepare a detailed report to initiate such proper proceedings, if any, as per law.
4. Thereupon the owners of the building submitted Ext.P9 - another application dated 29.11.2010 for regularisation of the construction. That application was rejected as per Ext.P10 on 8.5.2012 on the ground that the construction was in violation of the regularisation criteria No.1 & 3 of Appendix 1 of the Kerala Building (Regularisation of Unauthorised Construction) Rules, 2010. Thereupon Sri Ahamedkutty Haji, one of the owners of the property, approached the Minister for Local Self Government Institutions and Social Welfare submitting Ext.P11 representation dated 14.5.2012 stating that, the construction was not in violation of any rules, the office building near the Auditorium was already demolished, etc.
5. In the meanwhile, pursuant to Ext.P8 order of the Tribunal, the Secretary, Grama Panchayat had issued a provisional order dated 12.5.2011 directing demolition of the building alleging violation of 235W(1) and (2) of the Kerala Panchayat Raj Act. The petitioner had submitted an explanation Ext.P12 before the Panchayat on 9.6.2011, stating that the W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 5 outhouse and an extra kitchen on the rear side of the building were constructed in accordance with law after setting apart the requisite distance from the road and pointing out that an application was already submitted for regularisation of the construction, before the Government. By Ext.P13 order dated 9.6.2011, the Secretary of the Grama Panchayat confirmed the provisional order dated 12.5.2011 saying that the illegal constructions were in existence, ie. the outhouse constructed in front of the Auditorium in violation of Section 220(b) of the Kerala Panchayat Raj Act, Rules 4, 28 and 84 of the Kerala Panchayat Building Rules, 2011, Rules 4, 26 and 88 of the KMB Rules which were in force at the time of construction and that the building constructed behind the Auditorium in violation of Rules 4, 27(10) and 57(2) of the Kerala Panchayat Building Rules r/w Rules 4, 24(11) and 55(2) of the KMBR, 1999.
6. Thereafter the application for regularisation was also rejected as per Ext.P10 on 8.5.2012. The Panchayat issued another notice Ext.P14 on 12.7.2012 directing demolition of the unauthorised construction. That notice was issued on the basis of the directions of the Ombudsman for Local Self Government W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 6 Institutions in its order Ext.P16 dated 14.2.2012 in Original Petition No.2029/2010 and on the basis of the directions of the Deputy Director of Panchayat in Ext.P15 order dated 20.06.2012, consequent to that.
7. It is at this stage that Sri. Hamsa Haji, one of the owners filed this Writ Petition, raising the contention that Ext.P14 order was issued without any notice to the petitioner. Referring to the order passed by the Ombudsman Ext.P16, the petitioner submitted that the owners of the building were not parties to the O.P before the Ombudsman. Moreover, the direction of the Ombudsman was that the Deputy Director of Panchayat, Malappuram shall inspect the property with the assistance of an Engineer with notice to both the parties and thereafter find out violation if any of the Building Rules and take action to get the encroachments demolished, in the event of any illegal construction. It was also observed that, unauthorised construction, if any, can be regularised. The Ombudsman directed that inspection of the property as well as hearing of the parties should be done with due notice to the parties with effective opportunity. However even though the Deputy Director W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 7 of Panchayat issued Ext.P15 order, no inspection was conducted with notice to the petitioner. In Ext.P16 order of the Ombudsman, orders under reference were: the O.P filed by Sri Vijayakrishnan- the 4th respondent, and the letter of the Block Panchayat Resident Executive Engineer, Tirurangadi. It is based on this order that an inspection was conducted on 28.4.2012 pursuant to the order of the Ombudsman, and the Assistant Executive Engineer submitted a report and it was found that the building in front of the main building was constructed without permit from the Grama Panchayat in violation of Rule 55(2) of the Kerala Municipal Building Rules and that an annex was constructed on the rear side of the main building contrary to the completion plan submitted before the Panchayat, reducing the set back on the right side of the main building, on account of which there is violation of Rule 55(2) of the Building Rules on the right side of the building. It was further found that the carpet area of the balcony and the ground floor of the hall exceeded 25% in violation of Rule 55(2) of the KMBR. It was therefore directed to demolish the building annexed to the main building, construction carried out in violation of the Rules. Ext.P14 notice W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 8 issued by the Panchayat on 12.7.2012 was on the basis of the aforesaid directions by which the petitioner was directed to demolish those unauthorised constructions referred to as 1, 2 and 3 in the notice. W.P(c) No.19368 of 2012 was filed at this stage challenging Ext.P15 order of the Deputy Director of Panchayat, Ext.P14 notice issued by the Panchayat and also challenging Ext.P16 order of the Ombudsman for Local Self Government Institutions as well as for a declaration that the Ombudsman for Local Self Government Institutions does not have any jurisdiction to entertain a petition merely alleging violation of Building Rules. This Court stayed the further proceedings as per order dated 16.8.2012 and the interim order continues to be in force.
8. While so, "Kerala Panchayat Buildings (Regularisation of Unauthorised Construction) Rules, 2014, were issued. As per these Rules, applications could be submitted for regularisation of unauthorised constructions, within a period of 308 days from the date of issuance of the Rules, ie. from 25.8.2014. The petitioner submitted an application under these Rules on 31.10.2014. While so, the petitioner received a notice Ext.P4 dated 7.9.2015 W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 9 calling upon him to show cause against the proposal and to cancel the building number assigned to the auditorium. The notice was issued on the basis of an order dated 12.08.2015 of the Government and the report dated 15.7.2015 of the Town Planner (Vigilance).
9. In the Writ Petition, the petitioner submits that on receipt of the show cause notice, he submitted an application under the Right to Information Act and obtained documents referred to in the show cause notice, in October, 2015. Thus he came to know that by letter dated 16.12.2014 the Town Planner, Malappuram had returned his application for regularisation to the Panchayat to rectify the 29 defects mentioned therein and to return. The petitioner thereupon submitted an explanation to the show cause notice on 30.10.2015. In the meanwhile, the petitioner received another order dated 29.10.2015 of the Secretary cancelling the building number assigned to his building, on the ground that no explanation was offered pursuant to the notice issued on 7.9.2015 and 19.10.2015. Immediately thereupon the petitioner approached this Court challenging Ext.P11 order dated 29.10.2015 cancelling the building number, W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 10 filing Writ Petition No.34214 of 2015. This Court granted an interim order on 13.11.2015 directing the parties to maintain status quo enabling the petitioner to run the auditorium. That interim order continues to be in force.
10. The petitioner submitted that he or any of the co- owners of the property was never intimated about the fact that the application for regularisation was returned by the Town Planner. According to the petitioner, most of the defects pointed out therein were in respect of documents already produced before the Secretary. According to the petitioner, he could have resubmitted the application after curing the defects, in case it was intimated in the meantime. The petitioner submitted that the application was yet to be returned to him. It is the case of the petitioner that, the number assigned to the building is to be retained till the application is considered by the Government, saying that the building which was completed as early as on 27.10.2009, is being used as an Auditorium for the last six years and several functions are being held in that convention centre.
11. The 4th respondent Sri Vijayakrishnan has filed counter affidavit in W.P(c) No.19368 of 2012. His mother W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 11 Smt.Kaki, who got impleaded in both the writ petitions as Additional 6th respondent, has filed counter affidavit in W.P.(C) No.34214/2014. The case of the 4th respondent is that the President of the Panchayat is a co-owner of the building and all the petitions were being prosecuted by him except before this Court, where another person Sri Hamsa Haji has filed the case. Sri Ahamedkutty Haji was the Acting President of the Tirurangadi Grama Panchayat at the relevant time when the construction was being carried out and the completion certificate was given. According to him, it is the land mafia that carried out the construction and they were raising objections ever since the construction started. But Sri. Ahmed Haji, who was the acting President of the Panchayat managed to complete the same violating the rules and even after several stop memos and rejection of applications for regularisation, the illegally constructed building is functioning in full swing as a Convention Centre. The 4th respondent had filed O.S No.107 of 2009 before the Munsiff Court, Parappanangadi since the construction has completely taken away the lateral support of their residential property on account of excavation of earth without taking W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 12 necessary precautions, upto a depth of about 6 metres below the ground level and their property is under threat. According to the 4th respondent, Ext.P13 order passed by the Panchayat directing demolition of the unauthorised construction, pursuant to the order passed by the Tribunal, has become final and it was only on account of the influence exerted by Sri Ahamedkutty Haji, the Acting President of the Panchayat, that the Panchayat did not take any action on Ext.P13 final order to demolish the unauthorised construction. It is pointed out that petitioner did not choose to challenge either the order Ext.P10 issued on 8.5.2012 rejecting the application for regularisation of unauthorised construction or the order Ext.P13 dated 9.6.2011, which have become final. Instead he approached the Minister for Panchayat and Social Welfare for a review. As the Panchayat was not taking any effective action, the 4th respondent approached the Ombudsman for Local Self Government Institutions filing O.P No.2029 of 2010, based on which the Ombudsman passed Ext.P16 order. According to him, since the Panchayat as well as the President of the Panchayat were parties to those proceedings, Sri Ahamedkutty Haji, who was the W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 13 President of the Panchayat at the relevant time, was very well aware of the proceedings. Therefore the petitioner who is the co- owner cannot pretend ignorance over the orders; the Ombudsman's direction was that the Deputy Director shall take action after giving notice to all the parties and therefore, there was nothing illegal in the order passed by the Ombudsman. According to the 4th respondent, the petitioner had knowledge about the order passed by the Ombudsman, as early as on 14.2.2012.
12. The additional 6th respondent who got impleaded in both the Writ Petitions has filed a counter affidavit in W.P(c) No.34214 of 2015 stating that the application stated to have been submitted by the petitioner for regularisation on 31.10.2014 is not produced along with the Writ Petition and no relief can be granted with respect to such an application. According to her, she is residing in the family house on the top of a plot that was slopping to north and the petitioner and others put up unauthorised construction without obtaining title to the property and removed the soil cutting to a low level of 8 metres at the boundary separating their land and the adjacent land on W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 14 the north, thereby removing the lateral support to her house. Though the original suit filed by them was dismissed for default on 4.2.2015, a petition for restoration of the suit is pending. As the illegal construction was being carried out while Sri Ahamedkutty Haji, who is the petitioner's partner, was acting President of the Panchayat and therefore, the officers of the Panchayat did not take any action to stop the unauthorised constructions. According to her, the 2nd respondent had only acted in accordance with the order passed by the Tribunal and order dated 9.6.2011 passed by the Panchayat directing demolition has become final and conclusive. It was admitting the illegalities in the construction that the petitioner moved the application for regularisation of the same, which was rejected. The Town Planner had returned the application pointing out innumerable defects as contained in Ext.R6(b) dated 16.12.2014. The petitioner had to approach the Ombudsman since the Panchayat was not taking any steps. According to the additional respondents, the issue is being protracted without taking timely action and the petitioner could delay the matter since Sri Ahamedkutty Haji was the President of the Grama Panchayat and W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 15 the additional respondents have been fighting against the illegal construction ever since its construction started in 2009.
13. It is pointed out by all parties that the Panchayat was upgraded as a Municipality in January, 2016. In respect of the application for regularisation submitted by the petitioner under the 2014 Rules, the learned Standing Counsel for the Municipality submitted that the applicant had submitted a new plan in rectification of the defects pointed out by the Town Planner to which the Panchayat had again sought clarification from the applicant and finally it was forwarded to the Town Planner on 10.2.2016. The petitioner submitted that almost all the defects pointed out while returning the application were those already cured and the documents called for are already produced.
14. In the counter affidavit of the respondent Grama Panchayat, it is stated that permission for construction of the Auditorium was granted to Sri Ahamedkutty Haji and others on the basis of their application on 21.06.2008. It is admitted that Sri Ahamedkutty Haji was a member of the Panchayat when the application was submitted and he subsequently became the W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 16 President of the Panchayat. The construction was started after getting approval from the Panchayat and the Chief Town Planner. On the basis of the complaint from Smt.Kaki stating that the construction was causing threat to structural stability of her house, an enquiry was conducted and it was found that requisite permission was not obtained and accordingly a stop memo was issued on 11.12.2008, which was confirmed on 31.1.2009. Thereafter an application for regularisation was received and on the basis of recommendation of the Assistant Engineer LSGD, the Secretary had regularised the construction of the Auditorium on 27.10.2009 and thereafter building number was allotted to the Auditorium on 24.10.2010. On direction from the Secretary, LSGD issued on 1.7.2010, a stop memo was issued to Ahamedkutty Haji against the constructions as it was being carried out in violation of the KMBR. The petitioner challenged that before the Tribunal and finally the Tribunal had directed the Secretary to take fresh steps after conducting an inspection. Based on the inspection, the Assistant Engineer had reported 4 violations, ie. under Section 55(7), (2), 88(4) and 88(5) of the KMBR, 1999 and accordingly, a notice of demolition was issued W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 17 on 12.5.2011, which was confirmed by order dated 9.6.2011. It was thereafter that the 4th respondent had approached the Ombudsman and based on the order therein, the Deputy Director of Panchayat directed inspection of the site and in the event of any violations being found, to demolish the violated portion and under those circumstances, the Secretary issued Ext.P14 notice to the Ahamedkutty Haji, which is challenged in W.P(c) No.19368 of 2012.
15. Heard Sri Gopalakrishna Kurup, the learned Senior Counsel appearing for the petitioners, Sri N.Sukumaran, the learned Senior Counsel appearing for the additional 6th respondent, Sri P.Nandakumar, appearing for the 4th respondent, Sri Sethumadhavan, the learned Senior Counsel appearing for the Municipality and the learned Government Pleader.
16. The petitioner in these Writ Petitions admits that there are violations in the construction of the building. It is also stated that the additional constructions have been demolished. Therefore even without challenging the order rejecting the application for regularisation or the earlier order passed by the Panchayat, he has submitted an application for regularisation of W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 18 unauthorised construction on the basis of the Kerala Panchayat Building (Regularisation of Unauthorised Construction) Rules, 2014 which was published in the Gazette dated 27.8.2014. As per Rule 3 of those Rules, an application for regularisation of unauthorised construction can be submitted to the Secretary concerned in Form 1A along with the prescribed application fee, within a period of 308 days of the date of notification. The Panchayat -since Municipality as well as the petitioner submits that the application was submitted on 30.10.2014, within the time prescribed in the Rules. As per Rule 1(3), the 2014 Rules, shall apply to unauthorised constructions carried out on or before 31.3.2013 in any Grama Panchayat area in the State. Though the area within which the building is situated has since become Municipality, the construction was made at a time when it was a Panchayat and 2014 Rules are applicable to the building constructed by the petitioner.
17. It is seen that the building in question has been functioning as a convention centre/auditorium on the basis of the interim order passed by this Court on 16.8.2012 in W.P.(C) No.19368 of 2012 and another interim order was passed in W.P. W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 19 (C) 34214/2015. The Government have issued rules for regularisation of unauthorised constructions, again in 2014. As pointed out by Sri. N. Sukumaran, the learned Senior Counsel for the additional respondent No.5 and by Sri. Nandakumar, the learned Counsel for the 4th respondent, the order Ext.P10 or Ext.P13 are not challenged. While one is rejection of application for regularisation, the other is a direction for demolition. But it was subsequent to Ext.P13 order that the 4th respondent approached the Ombudsman and the Ombudsman issued Ext.P16 order directing Deputy Director of Panchayat to issue orders after conducting an inspection with notice to all parties. But the Deputy Director of Panchayat failed to issue notice to the owners/partners of the building in question before conducting the inspection. Therefore, the order Ext.P15 and the consequential order Ext.P14 order issued thereafter by the Panchayat are not in compliance of the order passed by the Ombudsman.
18. However, the petitioner submitted an application for regularisation. Te Government has by issuing the 2014 Rules, found it fit to give an opportunity to those who have carried out W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 20 unauthorised constructions. It is an admitted fact that the construction of the Auditorium is completed and it is functioning for the last several years. As far as the Auditorium is concerned, it is stated that, there is no violation with respect to that part of the building and the objection is with respect to the constructions annexed to it. In respect of the lateral support, the additional respondent as well as the 4th respondent already approached the Civil Court where the matter is pending consideration, though the suit was dismissed for default.
19. In these circumstances, I am of the view that it is only just and proper that the application for regularisation of the unauthorised construction submitted by the petitioner is considered by the Government in accordance with law. Even though the copy of the application is not produced, the petitioner has produced the receipt towards application fee dated 13.11.2014, acknowledgment and forwarding letter dated 31.10.2015, which are produced as Exts.P2, P2(a) and P(3) respectively in W.P(c) No.34214 of 2015. The learned counsel for the Municipality, on instructions, submitted that application was already forwarded to the Town Planner on 10.2.2016 and W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 21 the town planner is to forward the same to the Government. In these circumstances, I am of the view that further action can wait till orders are passed thereon. As the petitioner submitted that additional constructions have been removed/modified, in the event of a decision against the petitioner by the Government, it will be open to the Municipality to take appropriate action, in accordance with law, but after conducting an inspection with notice to all the parties.
In these circumstances these writ petitions are disposed of with the following directions:
(i) additional respondents 7 and 8 - the Tirurangadi Municipality, will see that the application submitted by the petitioner for regularisation of unauthorised construction of building No. T.P. 3/905A, on 31.10.2014, covered by Ext.P2 receipt and P2 (a) acknowledgment, is forwarded to the Government through the Town Planner, Malappuram without any further delay, at any rate, within 2 weeks from the date of receipt of a copy of this judgment;
(ii) the 1st respondent shall thereupon consider and pass orders on the said application after hearing the petitioner, the 4th W.P(C) Nos.19368 of 2012-U and 34214 of 2015-B 22 respondent, the additional 6th respondent and the Municipality, within a period of three months from the date of its receipt from the Town Planner, Malappuram;
(iii) till orders are passed by the Government on the aforesaid application, the parties shall maintain status quo;
(iv) in the event of rejection of the application by the Government, the Municipality shall take appropriate action in accordance with law, after conducting an inspection with notice to the petitioner, the 4th respondent and additional 6th respondent , within a period of 2 months thereafter.
Sd/-
(P.V.ASHA, JUDGE) rtr/