Kerala High Court
Limbert.P.Thottam vs State Of Kerala on 25 February, 2011
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5596 of 2011()
1. LIMBERT.P.THOTTAM, S/O. PHILIP.T.
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT COLLECTOR, KOTTAYAM.
3. THE SECRETARY, KIDANGOOR GRAMA
For Petitioner :SRI.M.J.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :25/02/2011
O R D E R
C.T. RAVIKUMAR, J.
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W.P.(C). NO.5596 OF 2011
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Dated this the 25th day of February, 2011
JUDGMENT
The petitioner is the absolute owner in possession of 2.5 cents of land comprised in Sy.No.345/7 in Kidangoor Village. In the year 1991, he had installed iron shutters to separate the varanda and the main room of the old shop situating thereon. This Writ Petition has been filed mainly challenging Ext.P7 order. In the year 1999, the petitioner was issued with a notice by the third respondent under Section 220(B) of the Kerala Panchayath Raj Act (for short 'the Act') alleging unauthorised construction. The petitioner was required to demolish the said alleged unauthorised construction within seven days. When the third respondent attempted to demolish the said building, the petitioner filed OS.No.31/1999 before the Munsiff's Court, Pala. Pending the said suit, the petitioner filed Ext.P2 application for regularisation of the unauthorised construction. Ext.P2 is dated 29.6.2000. Subsequently, the said suit was withdrawn. The contention of the petitioner is that it was withdrawn with the bona fide belief that Ext.P2 would be allowed. Later, Ext.P3 order was passed on W.P.(C) NO.5596/2011 2 the said application. As per Ext.P3 dated 16.3.2008, Ext.P2 application was rejected. It is contended that Ext.P3 order was passed without hearing the petitioner. He filed a review petition on 4.7.2008 before the second respondent. The said review petition was dismissed as per Ext.P4. In fact, as per Exts.P3 and P4, it was found that the unauthorised construction effected by the petitioner could not be regularised. Feeling aggrieved by the same, the petitioner preferred Ext.P5 appeal before the Government. Ultimately, Ext.P7 order was passed by the Government whereby the request of the petitioner for regularisation was rejected. It is challenging Ext.P7 that this Writ Petition has been filed.
2. The main contention of the petitioner is that his request for regularisation of the unauthorised construction was rejected relying on a ground which was not urged by any of the parties. According to the petitioner, the District Collector had dismissed the application for regularisation solely on the ground that the construction made in violation of Section 220(B) of the Act could not be regularised. At any rate, the contention is that rejection of application on a ground other than one assigned in Ext.P3 cannot be sustained. That apart, it is contended that Ext.P7 order was not passed by the officer who heard the matter and W.P.(C) NO.5596/2011 3 therefore, the same is unsustainable. Ext.P3 would reveal that the request of the petitioner for regularisation of unauthorised construction was rejected as it violated Section 220(B) of the Act. The said order would reveal that such a finding was arrived at taking note of the fact that it's set back from the road boundary is only 80 cms. Ext.P7 has to be looked into bearing in mind the said aspect. In Ext.P7, it is stated thus:-
"The main wall of the building is situated at a distance of .42 m to .45 m from the road boundary. Considering the verandah and the roof projection, the building has no practical set back from the road boundary."
It is thus obvious that the Government have arrived at a finding that construction in question could not be regularised based on the aforesaid factual position. Since the Government declined to regularise the unauthorised construction based on the aforesaid factual aspect, I am not inclined to interfere with the said order. The petitioner cannot be heard to contend that there is no unauthorised construction. Ext.P2 application itself would reveal that there is unauthorised construction. If there was no unauthorised construction, there was no need for the petitioner to file an application for regularisation. Since the Government, taking note of the factual position; virtually, the distance between the unauthorised W.P.(C) NO.5596/2011 4 construction and the road boundary, refused to regularise the same on finding that it would cause major security concern, I am of the considered view that a decision taken on that line cannot be interfered by this court. In Ext.P7, it is held as hereunder:-
"But the proviso to Section 235 AB states that no building construction shall be regularised which is done in contravention of the security arrangements.
Further, rule 5(7) of the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999 states that no unauthorised construction shall be regularised if the construction grossly violates any safety provisions in the building rules for the time being in force. The main walls of the building under reference are situated at a distance of 0.42 M to 0.45 M from the road boundary. This is a major security concern. Hence, the construction is not a fit case for regularisation".
(Emphasis added) Considering the aforesaid factual situation, the reasoning has to be held as well founded. Unmindful of security concern, a construction cannot be regularised merely because it was effected sometime ago. Ext.P7 order calls for no interference at all. Accordingly, the Writ Petition is dismissed.
(C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.5596/2011 5 C.T. RAVIKUMAR, J.
JUDGMENT W.P.(C) NO.5596/2011 6 September, 2010