Kerala High Court
Muhammed Asharaf vs State Of Kerala on 29 July, 2022
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 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944
WP(C) NO. 18198 OF 2015
PETITIONER:
MUHAMMED ASHARAF
AGED 45,
S/O.K.V.ABDULLA HAJI,
KEETHEDATH HOUSE,
IRIKOOR AMSOM,
KULINA DESOM,
THALIPARAMBU TALUK,
KANNUR DISTRICT.
BY ADV SRI.VARGHESE C.KURIAKOSE
RESPONDENTS:
1 STATE OF KERALA
REP.BY SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTION
SECRETARIAT,
TRIVANDRUM 695 001
2 THE TRIBUNAL FOR LOCAL SELF GOVT.INSTITUTIONS
TRIVANDRUM 695 001.
3 SREEKANDAPURAM GRAMA PANCHAYAT
GRAMA PANCHAYAT OFFICE,
SREEKANDAPURAM,
REP. BY ITS PRESIDENT. 670 631.
4 THE SECRETARY
SREEKANDAPURAM GRAMA PANCHAYAT,
GRAMA PANCHAYAT OFFICE,
SREEKANDAPURAM,
670 631.
5 ADDITIONAL R5 IMPLEADED
SREEKANDAPURAM MUNICIPALITY, REPRESENTED BY
SECRETARY, MUNICIPAL OFFICE,
SREEKANDAPURAM,
W.P.(C.) No. 18198/2015
2
KANNUR DISTRICT - 670 631.
[ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED
08.07.2022 IN I.A.1/2022 IN WP(C)18198/2015.]
R1 BY SMT.K.G.SAROJINI, GOVERNMENT PLEADER
ADDL. R5 BY ADV. T.V.JAYAKUMAR NAMBOODIRI, SC,
SREEKANDAPURAM MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C.) No. 18198/2015
3
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:-
"i) Issue writ, order or direction in the nature of mandamus or other appropriate writ calling for the records leading to Exts.P12, P14 and Ext.P19, examine the same and quash the same holding the same as illegal and unsustainable.
ii) Declare that the whole proceedings initiated against the petitioner as seen reflected in Ext.P12, P14 and P19 is illegal as the building in question was constructed prior to the introduction of KMBR and KPBR to Sreekandapuram panchayat.
(iii) Issue writ, order or direction in the nature of mandamus or other appropriate writ directing the 2nd and 3rd respondents not to proceed further and implement Ext.P12, P14 and P19 as against the petitioner as the same is illegal."
2. The petitioner is the owner in possession of an extent of 16 cents of property comprised in Survey No. 24/4 of Sreekandapuram Village, Kannur District. Apparently, petitioner has applied for a building permit for construction of a two storied commercial building. But later, the Secretary of the Grama Panchayat found that in violation of the approved plan and the building permit, petitioner has constructed an additional floor W.P.(C.) No. 18198/2015 4 without securing any permit from the Secretary of the Sreekandapuram Grama Panchayat, which is now upgraded as Sreekandapuram Municipality - respondent Nos. 3 and 5 respectively. Pursuant to the constructions, Secretary has taken action under Section 235W of the Kerala Panchayat Raj Act, 1994 (for short 'the Act, 1994') which has finally culminated in Ext.P12 order directing the petitioner to remove the illegal constructions since the construction carried out by the petitioner is in violation of various provisions of the Kerala Panchayat Building Rules, 2011 (for short 'the Rules, 2011'). Being aggrieved, petitioner has challenged the said order before the Tribunal for Local Self Government Institutions, Thiruvananthapuram by filing Appeal No. 29/2013. The Tribunal as per Ext.P14 affirmed the order of the Secretary. Thereafter, the petitioner has approached the Secretary of the Grama Panchayat again by filing a review petition to review W.P.(C.) No. 18198/2015 5 Ext. P12 order passed by the Secretary and approached this Court and secured Ext.P18 judgment in W.P.(C.) No. 12651/2013. The said writ petition was disposed of directing the Secretary of the Grama Panchayat to finalise the review petition. The review petition was considered and Ext. P19 order was passed dismissing the review application. It is thus challenging the legality and correctness of Ext.P12 order passed by the Secretary, Ext.P14 order, passed by the Tribunal and Ext.P19 order passed by the Secretary in the review petition, this writ petition is filed.
3. I heard Adv. Amrita J. representing Adv. Sri. Varghese C. Kuriakose, the learned counsel for the petitioner, Sri. T.V. Jayakumar Namboodiri, the learned Standing Counsel appearing for the Sreekandapuram Municipality and Smt. K.G. Sarojini, the learned Government Pleader and perused the pleadings and materials on record. W.P.(C.) No. 18198/2015 6
4. The sole question to be considered is whether any manner of interference is required to the impugned orders. On a perusal of the orders, one thing is clear that construction is carried out in violation of the provisions of the Rules, 2011. True, the Secretary of the Grama Panchayat is vested with ample powers to regularize a construction by virtue of Rule 134 of the Rules, 2011, however, if it is in violation of the Building Rules, the Secretary is not having powers to regularize the construction. This is what is exactly done by the Secretary, which is clearly spelt out in Ext.P12 order. The building construction, evident from the proceedings, is in violation of not only the approved plan but also in violation of the Rules, 2011 which is found out by the fact-finding bodies, namely, the Secretary, the Appellate Tribunal, and again the Secretary in the review petition. It is also clear from the respective orders that the orders were passed after W.P.(C.) No. 18198/2015 7 providing sufficient opportunity of participation and hearing to the petitioner. Therefore, there is no violation of the basic principles of natural justice and one cannot find any arbitrariness in the impugned orders.
5. In that view of the matter, I do not think the petitioner has made out or established any case in this writ petition to interfere with the above specified impugned orders. But fact remains that Section 235AB of the Act, 1994 confers power on the Government to regularize a construction which is done in violation of the Rules, however, in accordance with the parameters provided thereunder. Section 235AB of the Act, 1994 reads thus:-
"235 AB. Power to regularise the unlawful building construction. - (1) Not with standing any thing contained in this Act, if any person or institution unlawfully developed any land or constructed any building on or before 31st December 1998, the Government may, on realisation of a compounding W.P.(C.) No. 18198/2015 8 fee as prescribed, regularise such land development or building construction:
Provided that such regularisation shall not adversely affect any planning scheme or master plan, approved under the existing provisions of the Town Planning Act:
Provided further that no building construction shall be regularised, which is done in contravention of the provisions in respect of the security arrangements provided in this Act, or the building rules made there under.
(2) Application for regularisation under sub-section (1) shall be submitted within such time and in such manner as prescribed.
Explanation. - For the purpose of this Act, unlawful construction means any construction for which the Secretary shall have no power to regularise under section 235 W of this Act or any construction or re- construction done in contravention of the provision of this Act or the building rules made there under or in contravention of any approved plan or any construction done in deviation of any exemption order sanctioned by the Government or any conditions specified therein."
W.P.(C.) No. 18198/20159
6. In that view of the matter, I am of the considered opinion that an opportunity can be given to the petitioner to approach the Government in accordance with Section 235AB of the Act, 1994 and the the notification in force issued under the said provision.
7. Therefore, the writ petition is disposed of leaving open the liberty of the petitioner to approach the Government in accordance with the notification issued under Section 235AB of the Act, 1994. If any regularization application is filed within two months from today, it shall be considered by the statutory authority, in accordance with law, at the earliest and at any rate, within three months thereafter.
8. When the writ petition was admitted to the files of this Court, an interim order was passed directing to provisionally number the illegal construction. Today when the matter is taken up, the W.P.(C.) No. 18198/2015 10 learned Standing Counsel appearing for the Sreekandapuram Municipality submitted that already the direction is complied with and the building is provided with a number (unauthorized) and tax is being levied at the rate prescribed under Section 235AA of the Act, 1994. The said order will continue to be in force till a decision is taken as directed above and the time period prescribed thereunder.
The writ petition is disposed of as above.
Sd/-
SHAJI P. CHALY JUDGE DCS/29.07.2022 W.P.(C.) No. 18198/2015 11 APPENDIX PETITIONER EXHIBITS P1 TRUE PHOTOCOPY OF THE NOTICE DATED 21.09.2001 ISSUED BY TAHASILDAR THALIPARAMBA TO THE PETITIONER'S PREDECESSORS IN INTEREST.
P2 TRUE PHOTOCOPY OF THE RECEIPT DATED 22.12.2001 ISSUED PREDECESSORS IN INTEREST OF THE PETITIONER.
P3 TRUE PHOTOCOPY OF THE TAX PAID RECEIPT DATED 28.04.2001 IN RELATION TO BUILDING NUMBER AS SP VIII/637A P4 TRUE PHOTOCOPY OF THE TAX PAID RECEIPT DATED 28.04.2001 IN RELATION TO BUILDING NUMBER AS SP VIII/637 B P5 TRUE PHOTOCOPY OF THE TAX PAID RECEIPT DATED 26.07.2007 ISSUED BY THE PANCHAYAT P6 TRUE PHOTOCOPY OF THE OWNERSHIP CERTIFICATE DATED 26.07.2007 ISSUED BY 3RD RESPONDENT.
P7 TRUE PHOTOCOPY OF THE OWNERSHIP CERTIFICATE DATED 19.10.2012 ISSUED BY 3RD RESPONDENT P8 TRUE PHOTOCOPY OF THE PROVISIONAL ORDER-CUM-PROVISIONAL SHOW NOTICE NO.A2 9044/2012 DATED 08.11.2012 ISSUED BY THE 3RD RESPONDENT.
P9 TRUE PHOTOCOPY OF THE REPLY DATED 23.11.2012 P10 TRUE PHOTOCOPY OF THE LETTER DATED W.P.(C.) No. 18198/2015 12 29.11.2012 BY THE 3RD RESPONDENT P11 TRUE PHOTOCOPY OF THE STATEMENT DATED 10.12.2012 P12 TRUE PHOTOCOPY OF THE ORDER DATED 29.12.2012 IN FILE NO.A2 9044/2012 P13 TRUE PHOTOCOPY OF THE LICENCE FEE DATED 14.05.2008 P14 TRUE PHOTOCOPY OF THE ORDER DATED 20.04.2013 PASSED BY THE 2ND RESPONDENT P15 TRUE PHOTOCOPY OF THE ORDER DATED 29.06.2013 P16 TRUE PHOTOCOPY OF THE APPLICATION DATED 13.03.2014 BEFORE THE 4TH RESPONDENT P17 TRUE PHOTOCOPY OF THE REPLY ISSUED BY THE 4TH RESPONDENT P18 TRUE PHOTOCOPY OF THE JUDGMENT IN WPC.NO.12651/2013 ON THE FILES OF HONOURABLE HIGH COURT OF KERALA DATED 09.10.2014 P19 TRUE PHOTOCOPY OF THE ORDER NO.A2/8386/14 DATED 14.05.2015 PASSED BY THE 4TH RESPONDENT.