IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4230 of 2007(C)
1. RAJEEVAN, VELLOORKIZHAKKETHIL,
... Petitioner
Vs
1. STATE OF KERALA REP.BY SECRETARY TO
... Respondent
2. THE CHIEF TOWN PLANNER,
3. THE MAVELIKKARA MUNICIPALITY
4. THE SECRETARY, MAVELIKKARA MUNICIPALITY,
5. JANARDHANAN, VELLOORKIZHAKKETHIL,
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent :SRI.R.RANJITH
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :06/10/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 4230 OF 2007 (C)
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Dated this the 6th day of October, 2009
J U D G M E N T
Although notice has been served, there is no appearance on
behalf of the 5th respondent.
2. The case of the petitioner is that the 5th respondent
had obtained a building plan approved by the 3rd respondent
Municipality. But however, he proceeded to undertake
construction in violation of the conditions of building permit. It is
stated that this was complained to the Municipality which issued a
provisional order under Section 406 of the Kerala Municipalities
Act. The explanation made by the 5th respondent was not
satisfactory to the Municipality and therefore Municipality
confirmed the provisional order as per Ext.P1.
3. The 5th respondent did not challenge Ext.P1 and
therefore Ext.P1 order has become final and binding on him. He
did not comply with the said order, but however, it would appear
that on a representation made by him, the Chief Town Planner
made Ext.P5(2) recommendation dated 3/3/2006 to the
Government stating that it was only on account of a realignment
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of the boundaries of the property that the prescribed set back
could not be fully complied with. It was stated that if the building
has been constructed in compliance with the building permit in all
other respects, the Secretary could regularize the construction.
4. Acting upon the recommendation of the Chief Town
Planner as above, the Government issued Ext.P5 order dated
11/5/2006 requiring the 4th respondent that if the construction is
in compliance with the building permit in all other respects, the
building constructed could be regularized. The recommendation
made by the Chief Town Planner also discloses that the
construction of the building was completed on 14/2/2003. As a
result of Ext.P5 order of the Government mentioned above,
further action on Ext.P1 was not taken and it is in these
circumstances this writ petition has been filed by the petitioner.
5. The only issue that arises for consideration is the
validity of Ext.P5 and the recommendation made by the Chief
Town Planner, which is also enclosed to the same. The
recommendation of the Chief Town Planner is on the basis that
the construction of the building was completed on 14/2/2003. He
also accepts the fact that the set back on the northern side is not
WPC 4230/07
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in compliance with the conditions of the building permit.
However, he says that if the construction is in compliance with the
building permit in all other respects, the construction could be
regularized in terms of Section 406 of the Kerala Municipalities
Act, 1994. It is acting upon the said recommendation of the Chief
Town Planner that Ext.P5 order has been issued by the
Government.
6. The relevant provision of the Municipalities Act
providing for regularization of construction is Section 407. A
reading of the said section shows that the power under Section
407 can be invoked only in respect of any building constructed on
or before 15th of October 1999. The provisions of the Kerala
Building (Regularization of Unauthorized Construction and Land
Development) Rules, 1999 also defines unauthorised construction
as constructions carried out and completed before 15th of October
1999. The statute thus having fixed a cut off date viz., 15th of
October 1999, unless the construction of the building in question
has been completed before that date, there is no question of any
regularization as recommended by the Chief Town Planner.
7. In this case, even going by the recommendation of the
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Chief Town Planner, construction of the building was completed
only on 14/2/2003. If that be the factual position, there does not
arise any question of regularisation. If so, Ext.P5 is directly
against the provisions of Section 407 of the Kerala Municipalities
Act, 1994 and the Rules mentioned above.
Therefore, Ext.P5 will stand set aside and the writ petition is
disposed of as above.
ANTONY DOMINIC, JUDGE
Rp