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Showing contexts for: regularization of unauthorized construction in Sabitha Beevi vs The Corporation Of Thiruvananthapuram on 17 March, 2020Matching Fragments
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(b) in other cases, within thirty days after the date of the receipt of the order or proceedings against which the appeal is made."
4. We are now faced with a situation as to whether a writ petition is maintainable after the expiry of the statutory period provided therefore, for filing appeal or revision as the case may be. Though, several decisions are placed by either side to contend that under extraordinary circumstances, remedy under Article 226 of the Constitution of India, is available and contra, we are not inclined to enter into the above said arena for the reason that in exercise of the powers conferred by Section 565 read with Section 407 of the Kerala Municipality Act, 1994 and in suppression of Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2014 issued under G.O.(Ms.) No.39/2014/LSGD dated 14 th February, 2014 and published as S.R.O.No.122/2014 in the Kerala Gazette Extraordinary No.529 dated the 17th February, 2014, the Government of Kerala have brought into force, the Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2018, on and with effect from 15.02.2018, hereinafter called Rules, 2018. As per Sub-Rule (3) of Rule 1 of Rules, 2018, the Rules shall apply to the unauthorized construction carried out on or before 31.07.2017 in any Municipal and Municipal Corporation area in the State. Admittedly, the building in question falls within the Thiruvanathapuram Municipal Corporation. Rule 2 (k) thereto defines unauthorized construction, which reads thus:
"3. Submission of application for regularization of unauthorized Construction.- (1) Application for regularization of unauthorized construction declaring the details pertaining to the unauthorized construction shall be submitted to the Secretary in Form1-A appended to these Rules, in duplicate, and the application fee specified in Rule 4 within ninety days of the date of notification of these Rules in the Kerala Gazette."
6. The application shall also be accompanied by the documents delineated under sub-rule (2) thereunder. The procedure in case of application for regularization is rejected, is set out in Rule (9) of the said Rules:
Therefore as the 3rd floor of your building is in violation of the Rules, the application seeking regularization/deemed permission under Rule 15(2) cannot be considered.
Hence your application dated 19-01-2017 seeking regularization (application No.7334) and application seeking permit dated 19-01-2017 (No.7418) is rejected."
12. Admittedly, the building falls within the jurisdictional limits of Thiruvananthapuram Corporation, and application seeking regularization has been rejected. That does not affect the construction allegedly put up, since in terms of Rule 2 (k) of Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2018, subject to the provisions of the rules, any construction, addition or reconstruction carried out or completed on or before 31.07.2017 and which secretary has no power to regularize under Section 406 of the Kerala Municipality Act, 1994, Chapter XX of the Building Rules. However, construction is considered for regularization, if an application is submitted to the Secretary in Form 1-A appended to the Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2018. But as per Sub-Rule (4) of Rule 6 of the Rules, 2018, on scrutiny of the application for regularization, if it is found that the unauthorized construction does not conform to the provisions set out in Rule 6, the Secretary shall reject the application citing the reason for rejection. As per Sub-rule (5) of Rule 6, the Secretary shall reject the application within sixty days, if they are not in order and or not duly filled up or signed or certified, or violating the provisions of the Acts and rules mentioned in sub-rule (4) of Rule 6, citing reason for rejection. If the application satisfies the requirement under sub-rule (4) and endorse with the required documents, then as per sub-rule (6) of Rules, 2018, the Town Planner shall consider the duly filled up Forms and the drawing forwarded by the Secretary and prepare technical recommendations in Form 1-C. The Town Planner may, if necessary, inspect or cause to inspect the location and/or site and/or the building. Thereafter, the Town Planner may reject and return the Forms and the drawings to the Secretary, if they are not in order and or not duly filled up or signed or certified, citing reasons for the non-acceptance. Ultimately the Town Planner as per sub-rule (8) of Rule 6 shall place the following within sixty days from the date of receipt, if they are in order, before the Committee constituted by the Government. Documents to be placed before the Committee by the Town Planner is shown below:
(i) Forms 1-A, 1-B and 1-C duly filled up and signed in all respects;
(ii) Two sets of drawings forwarded by the Secretary and signed and certified by the Town Planner to the effect that the technical recommendation made has reference to this drawings.
13. Sub-rule (8) and (10) of Rule 6 of the Rules, 2018, take care of the further procedure regarding sanction for regularization, which shall contain the details set out in Rule (10) of the Rules, 2018. In the above view, notwithstanding right of the appellant to challenge the rejection of the permit under the Kerala Municipality Act and the Rules made thereunder, provisions of the Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2018 enables the appellant to submit an application for regularization of any construction, addition or reconstruction carried out or completed on or before 31.07.2017 subject of course to satisfying the requirements under the Rules, 2018. During the course of hearing, we are informed that the time limit for submission of an application under Rule 3 of 2018 Rules initially, granted was being periodically extended, and currently up to 31.03.2020. In as much as, Kerala Municipality Building (Regularization of Unauthorized Construction) Rules, 2018 enable submission of an application for regularization of unauthorized construction, extended up to 31.03.2020, we are of the view that notwithstanding the filing of the writ petition, the appellant has independent right, to file an application before the competent authority on or before 31.03.2020.