Kerala High Court
St. George Orthodox Church vs The District Town Planner on 19 June, 2017
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 10TH DAY OF AUGUST 2018 / 19TH SRAVANA, 1940
WP(C).No. 17639 of 2018
PETITIONER(S):
1 ST. GEORGE ORTHODOX CHURCH,
REPRESENTED BY ITS TRUSTEE, MAMPRA P.O., CHERIYANAD,
CHENGANNUR, PIN-689 508, ALAPPUZHA DISTRICT.
2 FR. BIJU T.MATHEW,
VICAR, ST. GEORGE ORTHODOX CHURCH, MAMPRA P.O.,
CHERIYANAD, CHENGANNUR, PIN-689 508, ALAPPUZHA DISTRICT.
BY ADVS.SMT.VINEETHA SUSAN THOMAS
SRI.SAMPATH V. TOMS
SRI.CHRISTY THOMAS
RESPONDENT(S):
1. THE DISTRICT TOWN PLANNER,
MINI CIVIL STATION, COLLECTORATE, ALAPPUZHA, PIN-688001.
2. THE REGULARIZATION COMMITTEE,
REPRESENTED BY THE DISTRICT TOWN PLANNER,
MINI CIVIL STATION, COLLECTORATE, ALAPPUZHA, PIN-688001.
3. CHERIYANADU GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, CHERIYANADU P.O., PIN-689 511,
ALAPPUZHA DISTRICT.
R1&R2 BY GOVERNMENT PLEADER SRI. MANURAJ K.J.
R3 BY ADVS. SRI.K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2018,
THE COURT ON 10/08/2018 DELIVERED THE FOLLOWING:
RVS.
WP(C).No. 17639 of 2018 (D)
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT NO.12.6719/2015.
EXHIBIT P1(A) TRUE COPY OF THE APPROVED PLAN.
EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.C3 67/2017.
EXHIBIT P2(A) TRUE COPY OF THE NOTICE OF THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR REGULARISATION WITH
PLAN.
EXHIBIT P3(A) TRUE COPY OF THE CASH RECEIPT.
EXHIBIT P4 TRUE COPY OF THE COVERING LETTER.
EXHIBIT P4A TRUE COPY OF THE FORM 1-A APPLICATION FOR
REGULARISATION OF UNAUTHORIZED CONSTRUCTION.
EXHIBIT P4B TRUE COPY OF THE APPENDIX I.
EXHIBIT P4C TRUE COPY OF THE REVISED PLAN.
EXHIBIT P4D TRUE COPY OF THE RECEIPT OF THE DOCUMENTS BY PANCHAYAT.
EXHIBIT P5 TRUE COPY OF THE PETITION.
EXHIBIT P5A TRUE COPY OF THE RECEIPT.
EXHIBIT P6 TRUE COPY OF THE STRUCTURAL STABILITY CERTIFICATE ISSUED
BY THE STRUCTURAL ENGINEER.
RESPONDENT(S)' EXHIBITS:
EXHIBIT R3A TRUE COPY OF THE COMMUNICATION NO. C3-67/2017
ISSUED BY THIRD RESPONDENT TO THE PETITIONERS
DATED 19.06.2017.
EXHIBIT R3B TRUE COPY OF THE COMMUNICATION NO. C/1134/2017/K.DIS
ISSUED TO THIRD RESPONDENT BY THE TOWN PLANNER,
ALAPPUZHA DATED 04.10.2017.
EXHIBIT R3C TRUE COPY OF THE COMMUNICATION ISSUED BY THIRD
RESPONDENT DATED 26.10.2017 TO THE PETITIONERS.
EXHIBIT R3D TRUE COPY OF THE LETTER ISSUED BY THE
PETITIONERS TO THIRD RESPONDENT DATED 3.11.2017.
EXHIBIT R3E A TRUE COPY OF THE PLAINT IN OS NO. 80/2018 ALONG
WITH THE APPLICATION FOR INJUNCTION FILED AS IA
NO. 491/2018 ON THE FILES OF MUNSIFFS COURT,
CHENGANNOOR.
WP(C).No. 17639 of 2018 (D)
EXHIBIT R3F TRUE COPY OF THE REPORT RECEIVED BY THIRD
RESPONDENT FROM ASSISTANT ENGINEER (LSGD)
SECTION, CHERIYANAD GRAMA PANCHAYAT DATED
NIL.
EXHIBIT R3G TRUE COPY OF THE REPORT ISSUED BY THE ASSISTANT
ENGINEER (LSGD) SECTION, CHERIYANAD GRAMA
PANCHAYAT DATED NIL.
EXHIBIT R3H TRUE COPY OF THE REPORT DATED 5.6.2018 ISSUED BY
THE ASSISTANT ENGINEER (LSGD) SECTION,
CHERIYANAD GRAMA PANCHAYAT.
EXHIBIT R3(I). TRUE COPY OF THE REPORT SUBMITTED BY THE
ASSISTANT ENGINEER, L.S.G.D. SECTION, CHERIYANAD
GRAMA PANCHAYATH DATED 19/6/2018.
/TRUE COPY/
P.S. TO JUDGE
RVS.
14/08/2018
SHAJI P. CHALY, J.
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W.P.(C) No.17639 of 2018
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Dated this the 10th day of August, 2018
JUDGMENT
This writ petition is filed by the petitioners seeking direction to the 3rd respondent to forward Ext.P3 application to the 1st respondent, and for a further direction to respondent No.1 to place it before the 2 nd respondent in order to pass orders on Ext.P3 application for regularization of construction of the building under the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2018 [for short, 'the Rules, 2018']. Material facts for the disposal of the writ petition are as follows:
2. First petitioner is a Church and the 2 nd petitioner is its Vicar. According to the petitioners, with the approval of the General Body meeting of the Church, an application was submitted on 30.11.2015 before the 3rd respondent Panchayat for construction of a Bible Study Centre in the Church compound. Accordingly, 3rd respondent Panchayat issued building permit, and the plan was approved, evident from Exts.P1 and P1(a). On the strength of the building permit, W.P.(C) No.17639 of 2018 2 construction was started with the fund collected from parishioners and loans available from different sources. While construction was in progress, the 3rd respondent Panchayat issued notice to stop construction of the building on 15.04.2017, alleging that the construction was being carried out in violation of Ext.P1 building permit and some of the provisions of the Kerala Panchayat Building Rules, 2011, evident from Exts.P2 and P2(a).
3. On receipt of Exts.P2 and P2(a), the office bearers of the church met the 3rd respondent and enquired about the steps to be taken in future. On that basis, a revised plan was submitted and 3rd respondent Panchayat directed the petitioners to submit an application for regularization of the construction. While matters stood so, one member of the parish approached this Court, seeking direction for demolition of the Bible Study Centre constructed on the strength of the permit, alleging that there was violation of the permit and provisions of the Building Rules. However, the Church was not made a party, and therefore, the said parishioner could not get any interim order against the petitioners. Similarly, another member approached the Munsiff's Court, Chengannur also W.P.(C) No.17639 of 2018 3 seeking demolition of the construction alleging that it is carried out in violation of the Building Rules. However, in the said suit also, no interlocutory orders are passed.
4. Matters being so, the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2018 was brought into force on 15.02.2018. Taking advantage of the same, the Church, represented by the Trustee, submitted Ext.P3 application dated 22.03.2018. The case of the petitioners is that, even though the application is pending for the past several months, 3rd respondent has not taken any action on Ext.P3 application. It is thus seeking appropriate directions, as specified above, this writ petition is filed.
5. The 3rd respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioners. The issuance of building permit, approval of plan etc. are all admitted by the 3 rd respondent.
Among other contentions, it is stated that, petitioners have started the construction of the building in total violation of Ext.P1 building permit and the plan approved, which was also violative of the provisions of the Kerala Panchayat Building Rules, 2011. It was thereupon that, Ext.P2 order and W.P.(C) No.17639 of 2018 4 Ext.P2(a) stop memo were issued. It is also stated that, thereafter, Ext.R3(a) notice dated 19.06.2017 was issued to the petitioners, in which, the defects that are to be rectified are pointed out, and also the violations of the Rules, 2011.
6. According to the 3rd respondent, as per Ext.P1 building permit, the area for construction is only 485.22 sq. mtrs. On receipt of Ext.R3(a), petitioners have submitted application for regularization of the constructed building along with another plan. In the said plan, the extent of the area was shown as 894.48 sq. mtrs. The Secretary of the Panchayat is having jurisdiction to regularize construction only up to 500 sq. mtrs. Hence, the 3rd respondent forwarded the said application and plan to the Town Planner, Alappuzha. After receipt of the same, the Town Planner, Alappuzha issued a communication to the 3rd respondent, pointing out various defects, evident from Ext.R3(b). On receipt of Ext.R3(b), 3 rd respondent issued Ext.R3(c) notice dated 26.10.2017, pointing out the defects and enclosing Ext.R3(b) letter. Therefore, according to the 3 rd respondent, 3rd respondent has acted in accordance with law and the Rules prevailing. Subsequently, petitioners issued a letter to the 3rd respondent stating that there is no requirement W.P.(C) No.17639 of 2018 5 of removal of beams, and further stated that, except defect No.3, all remaining defects are cured, evident from Ext.R3(d), which was received on 04.11.2017.
7. Meanwhile, one Aju Thomas preferred O.S.No.80 of 2018 before the Munsiff's Court, Chengannur, seeking ad- interim injunction, wherein, the 3rd respondent, Town Planner, Building Engineer, and the District Collector, Alappuzha were arrayed as defendants. I.A.No.491/2018 is also filed seeking interlocutory order, which is produced as Ext.R3(e). The said suit is still pending. Similarly, another parishioner, viz., Jose Thomas filed W.P.(C) No.33258 of 2017, against the 3 rd respondent and six others, seeking direction to the respondents to take follow-up action against the irregularities in the construction of the educational building constructed by the petitioners.
8. A report received from the Assistant Engineer (LSGD) is produced as Ext.R3(f). Similarly, Ext.R3(g) report is also submitted by the Assistant Engineer, pointing out the violations and defects of the building under construction. Therefore, according to the 3rd respondent, it is clear that the said construction is made in violation of the Kerala Panchayat W.P.(C) No.17639 of 2018 6 Building Rules, 2011, and therefore, normally, it is not possible to regularize an unauthorized construction, which is constructed in violation of the Building Rules, 2011.
9. In the meanwhile, the Rules, 2018 is brought into force. It was thereupon that, Ext.P3 application was made. As per Rule 3(e) of Rules, 2018, petitioners have to show proof of having completed or carried out the construction of the building on or before 31.07.2017. After receipt of the said application, 3rd respondent has to make a report in terms of Rule 6 of Rules, 2018, and as mandated in the said Rule, the Secretary has to submit a report in Form 1-B with certification. To verify the veracity of the contents in Form 1-A application submitted by the petitioners, including the technical aspects, petitioners have to get a proper report from a competent officer. In this case, there is a report stating that if the beams are removed, the building will collapse. Hence, the 3 rd respondent forwarded the application and other documents submitted by the petitioners to the Assistant Engineer. Accordingly, the Assistant Engineer has submitted Ext.R3(h) report dated 05.06.2018. Further, it is stated that, at the time W.P.(C) No.17639 of 2018 7 of submission of Ext.P3 revised plan by the petitioners for regularization, it did not disclose about the beams which were constructed un-authorizedly by the petitioners. However, the construction of those beams are specifically noted by the Assistant Engineer.
10. That apart, it is stated that, the building under construction is an incomplete building and the construction of building is not fully carried out before 31.07.2017, in order to get the benefits of the Regularization Rules, 2018. Therefore, according to the 3rd respondent, there is no case made out by the petitioners, enabling the Secretary of the 3 rd respondent to forward the regularization application submitted by the petitioners.
11. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition, and also submitting that the 3rd respondent has not considered the details of the revised plan. According to the petitioners, Exts.R3(f) and R3(g) reports secured from the Assistant Engineer are not containing any date, and it is not discernible, whether the said reports were drawn before the issuance of Ext.P2 order and Ext.P2(a) stop memo. It is also pointed out W.P.(C) No.17639 of 2018 8 that, the said reports are not forwarded to the petitioners. Therefore, according to the petitioners, they are concocted reports obtained after the filing of the writ petition.
12. That apart, it is stated that, the built up area of the building is only 894.48 sq. mtrs. and in Ext.R3(g), it is shown accordingly. However, in Ext.R3(f), the area was shown as 1032.88 sq. mtrs., by including the area covered by 17 beams constructed outside the building for strengthening the retaining wall, and therefore, the said area cannot be included in the built up area. Therefore, according to the petitioners, the built up area is only the covered area at any floor, covered by roof other than cornice roof or weather shades permissible as provided under Rule 2(o) of Rules, 2011. However, there is no structure or roof over the beams here. Therefore, the area of beams cannot be included as built up area. That apart, it is stated that, petitioners have not shown the date of completion of the construction as 31.07.2017. Petitioners even though carried out the construction, it could not be completed on account of the stop memo issued by the Panchayat. Therefore, it is clear from Rule 3(j) of the Rules, 2018, to produce proof, if the construction could not be completed on account of W.P.(C) No.17639 of 2018 9 stop memo from Panchayat or Government.
13. It is also stated that, on account of Ext.R3(h) report secured by the 3rd respondent, all previous reports have become irrelevant. In Ext.R3(h) report, it is stated that, after site inspection, all measurements and other details of construction are found to be in accordance with the plan. The only defects pointed out were that, though tress work for roof was completed, sheets were not laid on the roof, and plastering and finishing works were not done. It is reported, the same could not be completed due to the intervention of the 3rd respondent by issuing stop memo specified above. It is further stated that, all the 17 beams were shown in the site plan, submitted along with Ext.P3 regularization application. Therefore, according to the petitioners, there are no reasons for the Secretary of the 3rd respondent to detain the regularization application submitted by the petitioners by not filling up Form 1-B. Additional documents are also produced by the petitioners.
14. A memo is submitted by the learned Government Pleader, producing the report of the Town Planner, Alappuzha, pursuant to the interim order passed by this Court, wherein, it W.P.(C) No.17639 of 2018 10 is stated as follows:
b