Kerala High Court
Babu Ninan vs Corporation Of Thiruvananthapuram on 26 November, 2014
Author: A.M. Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936
WP(C).No. 4995 of 2012 (Y)
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PETITIONER(S):
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BABU NINAN,
CORE OFFICE EQUIPMENT AND STATIONARY,
OPP.ENGINEERING COLLEGE, SREEKARYAM P.O.,
THIRUVANANTHAPURAM.
BY ADV. SRI.K.T.SHYAMKUMAR
RESPONDENT(S) :
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1. CORPORATION OF THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE,
THIRUVANANTHAPURAM-695 001.
2. M.V.NAZAR, AGED 50 YEARS,
S/O.VAVAKUNJU, NAZAR BUNGLOW, MALEPEROOR,
MANJAPPARA P.O., AYOOR, KOLLAM,
REPRESENTED BY POWER OF ATTORNEY HOLDER H .NASSER,
S/O.HABBEB MOHAMMED, AGED 48 YEARS, VELLACHALIL HOUSE,
POREDOM P.O., CHADAYAMANGALAM, KOLLAM DISTRICT-691 534.
* ADDITIONAL R3 IMPLEADED
3. SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
* ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 26.11.2014 IN
I.A.NO.15968/14.
R1 BY SRI.N.NANDAKUMARA MENON (SENIOR ADVOCATE)
ADV. SRI.P.K.MANOJKUMAR
R2 BY ADV. SRI.R.V.SREEJITH
ADDL.R3 BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-11-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 4995 of 2012 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: TRUE COPY OF THE ORDER DATED 13/12/2010 IN APPEAL NO.904/2010
OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
EXT.P2: TRUE COPY OF THE BUILDING PERMIT AND APPROVED PLAN ISSUED
BY THE CORPORATION OF THIRUVANANTHAPURAM.
EXT.P3: TRUE COPY OF THE SURPRISE CHECK REPORT DATED 17/05/2011 OF
THE VIGILANCE AND ANTI CORRUPTION BUREAU,
THIRUVANANTHAPURAM.
EXT.P4: TRUE COPY OF THE ORDER DATED 06/06/2011 IN APPEAL NO.118/2011
OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.
EXT.P5: TRUE COPY OF THE ORDER DATED 31/12/2011 ISSUED BY
THE 1ST RESPONDENT.
EXT.P6: TRUE COPY OF THE COMPLETION CERTIFICATE OBTAINED BY
THE PETITIONER FROM THE REGISTERED ENGINEER.
EXT.P7: TRUE COPY OF GO(MS) 39/2014/LSGD DATED 14.02.2014
PUBLISHING THE KERALA MUNICIPALITY BUILDING
(REGULARISATION OF UNAUTHORISED CONSTRUCTION) RULES,2014
EXT.P8: TRUE COPY OF THE APPLICATION DATED 14.05.2014 SUBMITTED
BEFORE THE ADDITIONAL 3RD RESPONDENT FOR REGULARISATION
OF ALLEGED UNAUTHORISED CONSTRUCTION.
RESPONDENT(S)' ANNEXURES
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ANNEXURE R1(A): THE PHOTOSTAT COPY OF THE REGULARIZATION
APPLICATION NO.D/773/11 DATED 11.04.2011 ISSUED BY
THE TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE,
TRIVANDRUM, TO THE SECRETARY, CORPORATION OF
TRIVANDRUM.
ANNEXURE R1(B): THE PHOTOSTAT COPY OF THE NOTICE NO.TP-9212/2011/52
DATED 18.10.2011 ISSUED BY THE SECRETARY,CORPORATION
OF TRIVANDRUM, TO THE PETITIONER.
//TRUE COPY//
P.S.TO JUDGE.
Msd.
A.M. Shaffique, J.
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W.P(C) No. 4995 of 2012
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Dated this, the 26th day of November, 2014.
J U D G M E N T
Petitioner has approached this Court challenging Ext. P4 order passed by the Tribunal for Local Self Government Institutions. By the impugned order, the appeal filed by the 2nd respondent had been allowed, thereby cancelling the building permit in favour of the petitioner.
3. During the pendency of the above writ petition, the Government issued a notification on 14.2.2014 promulgating Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2014. As per the aforesaid Rules, if any person wants to regularize unauthorized construction, he/she will have to file an application before the Secretary of the Municipality/Corporation and the Secretary shall, if the said application is in order, forward the same to the Government, who has power under Rule 5 to pass appropriate orders. The learned counsel for the petitioner submits that he had already submitted application to the Municipality, which is pending consideration and therefore as matters stand now, the limited relief sought for is a direction to dispose of Ext. P8 application in accordance W.P(C) No. 4995 of 2012 -: 2 :- with law.
4. Learned counsel for the 2nd respondent however submits that even if the said application is considered, regularization cannot be granted in view of the proviso to Rule 5(2), which inter alia states that regularization of unauthorized construction which does not conform to the provisions of Section 383A of the Kerala Municipality Act, 1994, shall not be allowed by the Government.
5. The above contention is disputed by the learned counsel for the petitioner inter alia contending that his being a small plot, Chapter 8 of the Kerala Municipality Building Rules applies and therefore Rule 5(2) will have no application.
6. I am not rendering any finding on the merits of the above said contention as it is a disputed fact, which has be considered by the Government in appropriate proceedings.
7. Having regard to the limited relief sought for by the learned counsel for the petitioner, I am of the view that this writ petition can be disposed of as under:
There will be a direction to the 1st respondent to consider Ext. P8 and forward the same to the additional 3rd respondent, if the same is in order and complying W.P(C) No. 4995 of 2012 -: 3 :- with the procedure prescribed under the rules aforesaid, who shall consider the same and pass appropriate orders after hearing the petitioner as well as the 2nd respondent.
Sd/-
A.M. Shaffique, Judge.
Tds/