Kerala High Court
Jayan vs State Of Kerala on 28 January, 2022
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
W.P.(C) No.20754 of 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943
WP(C) NO. 20754 OF 2015
PETITIONER:
JAYAN.P.,
AGED 61 YEARS
NISHUS,VIZHIJAM.P.O,THIRUVANANTHAPURAM.
BY ADVS.
SMT.K.P.SANTHI
SRI.RILGIN V GEORGE
SMT.I.J.ANIE
SMT.E.U.DHANYA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF
GOVERNMENT DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-
695001.
2 THE CHIEF TOWN PLANNING OFFICER
TOWN PLANNING OFFICE,THIRUVANANTHAPURAM.
3 THE TOWN PLANNER
DEPARTMENT OF TOWN AND COUNTRY PLANNING,
THIRUVANANTHAPURAM.
4 VENGANOOR GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,VENGANOOR,TRIVANDRUM -
695523
BY ADVS.
R1 TO R3 - SRI.RIYAL DEVASSY,GOVERNMENT PLEADER
R4 - SRI.POOVAPPALLY M RAMACHANDRAN NAIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.20754 of 2015 2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
(i) Issue a writ of certiorari or such other writ, direction or order quashing Exhibits P3 and P5 as arbitrary, illegal, unreasonable and unconstitutional.
(ii) Issue such other writ, direction or order as is deemed just and necessary in the facts, features and circumstances of the case.
2. Apparently, petitioner has constructed a building after securing a building permit from the Secretary of the Venganoor Grama Panchayat - 4 th respondent, in an extent of 3.20 Ares of property lying in Re-Sy No.276/8 of Venganoor Village, Thiruvananthapuram Taluk. According to the petitioner, the construction of the building was completed and submitted an application seeking occupancy certificate and numbering of the building on 24.4.2014. However, the application was returned by the Secretary of the Grama Panchayat as per Exhibit P2 order dated 11.7.2014 stating that the plan and construction differs. Thereupon, petitioner submitted a fresh plan to the Secretary and the plan was resubmitted by the petitioner after making necessary changes. But it was again rejected as per Exhibit P3 stating that the measurement as per the Kerala Panchayat Building Rules is not applicable. Thereupon, petitioner has submitted Exhibit P4 application dated 17.6.2015 requesting to regularise the construction. But the said application was rejected as per Exhibit P5 order dated 25.6.2015, assigning the reason that the construction of W.P.(C) No.20754 of 2015 3 a building exceeding 9 meters height, is not permissible in the Kovalam - Vizhijham area as per the development scheme and therefore, the construction violates rule 27(8) of the Kerala Panchayat Building Rules, 2011. It is thus challenging the legality and correctness of Exhibits P3 and P5, the writ petition is filed.
3. I have heard learned counsel for petitioner Smt.K.P.Santhi, learned Government Pleader Sri.Riyal Devassy, learned Standing Counsel appearing for the Panchayat Sri.Poovappally M. Ramachandran and perused the pleadings and materials on record.
4. It is an admitted fact that there was unauthorised construction in violation of the building permit and plan and that is why petitioner has submitted Exhibit P4 for regularisation of the construction. It is also evident from Exhibit P3 that additional constructions are made by the petitioner. It is also evident from Exhibit P5 order of the Secretary that the height of the building is exceeding 9 meters, which is not permissible in Kovalam - Vizhinjham area. But fact remains, the exact nature of the violation is not shown either in Exhibit P3 order of the Secretary or in Exhibit P5 order passed in the regularisation application submitted by the petitioner.
5. In that view of the matter, I think it is only appropriate that petitioner is given an opportunity to represent the matter again before the Secretary in order to sort out the issue.
6. Therefore, the writ petition is disposed of quashing Exhibits P3 & P5 orders passed by the Secretary of the Venganoor Grama Panchayat and consequentially, W.P.(C) No.20754 of 2015 4 direct the Secretary to re-consider Exhibit P4 regularisation application in accordance with law, after securing participation of the petitioner, at the earliest and at any rate within two months from the date of receipt of a copy of this judgment. However, I make it clear that if the Secretary still finds that the construction is violative of the Kerala Panchayat Building Rules, 2011, it is for the petitioner to seek appropriate relief in contemplation of section 235 AB of the Kerala Panchayat Raj Act, 1994 before the appropriate statutory authority, which provision confers powers on the authority to regularise the unlawful construction. Said provision reads thus:
"235 AB. Power to regularise the unlawful building construction--
(1) Notwithstanding 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 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 thereunder. (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 W.P.(C) No.20754 of 2015 5 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."
7. This I say because I am informed that the latest notification issued by the Government for regularisation of unlawful construction is extended successively and still in force.
Writ petition is disposed of as above.
Sd/-
SHAJI P. CHALY
smv JUDGE
W.P.(C) No.20754 of 2015 6
APPENDIX OF WP(C) 20754/2015
PETITIONER'S EXHIBITS
P1 TRUE COPY OF THE BUILDING PERMIT NO.A-3-
10/9685/2011 DATED 22-2-2012 OF THE 4TH
RESPONDENT
P2 TRUE COPY OF THE ORDER DATED 11-7-2014 OF
THE 4TH RESPONDENT
P3 TRUE COPY OF THE ORDER DATED 3-6-2015 OF
THE 4TH RESPONDENT
P4 TRUE COPY OF THE APPLICATION DATED 17-6-
2015 SUBMITTED BY THE PETITIONER TO THE 3RD
AND 4TH RESPONDENTS
P5 TRUE COPY OF THE ORDER DATED 25-6-2015 OF
THE 4TH RESPONDENT.