IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25703 of 2005(I)
1. SHEELA.R. W/O.AJITH KUMAR,
... Petitioner
Vs
1. THE CORPORATION OF THIRUVANANTHAPURAM,
... Respondent
2. THE TOWN PLANNING OFFICER,
3. K.JAGAL PRASAD, S/O.V.K.PANICKER,
4. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.B.HARISHKUMAR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :24/06/2009
O R D E R
CR
C.K.ABDUL REHIM, J.
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W.P.(C)No. 25703 of 2005
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Dated this the 24th day of June, 2009
J U D G M E N T
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1. This writ petition is filed challenging Ext.P4 order of
the 4th respondent Tribunal, by which an appeal filed by the
petitioner against Ext.P3 order of the 1st respondent Corporation
is dismissed. The complaint of the petitioner is that construction
made by the 3rd respondent on the neighbouring property is in
deviation from the approved plan, based on which building
permit was issued. There is no sufficient space left on the
southern side of the 3rd respondent’s building as required under
the Kerala Muncipality Building Rules (hereinafter referred as
Building Rules for short). The specific allegation is that the
sunshade on the southern side of the 3rd respondent is
constructed in such a manner that rain water will splash into the
petitioner’s building causing inconvenience to him. On the basis
of Ext.P1 complaint in this regard, the 1st respondent initiated
action as contemplated under Section 406 of the Kerala
Muncipality Act 1994 (hereinafter referred as the Act for short)
against the 3rd respondent and a provisional order along with a
W.P.(C).25703/05 2
show cause notice was issued. Eventhough Ext.P2 is referred as
the show cause notice, copy of Ext.P2 produced in the writ
petition is not a notice issued to the 3rd respondent.
2. Ext.P3 is the order passed by the Secretary of the 1st
respondent Corporation after hearing objections of the 3rd
respondent. From Ext.P3 it is evident that a previous order
issued in this regard was already set aside in Appeal No:34/04 of
the 4th respondent and the matter was remanded for fresh
consideration. The 1st respondent in Ext.P3 found that, the
construction made by the 3rd respondent is not in accordance
with the approved plan as much as the basement floor as shown
in the plan is not constructed and instead of clearance shown on
the southern side ranging from 110 cm to 100 cm the actual
clearance provided is only ranging from 104 cm to 112 cm.
Further on the back side also instead of 1 M to 2.60 M shown in
the plan the clearance left is only 1.30 M to 2.20 M. Inspite of
findings arrived about the irregularities, without pursuing any
action as provided under S.406(3) of the Act, the 1st respondent
arrived at a conclusion that construction can be regularised
because the construction does not contravene any of the
provisions and specifications contained in the Building Rules.
Therefore the 3rd respondent was directed to submit application
for regularisation along with fresh plan, after providing some
W.P.(C).25703/05 3
measures on the southern sunshade in order to prevent falling of
water into the property of the petitioner.
3. Being aggrieved by Ext.P3 order, the petitioner
preferred appeal before the 4th respondent. The main contention
against Ext.P3 is that the findings of the Secretary that the
construction is not violative of any provision of the Building
Rules, is not correct. According to the petitioner there is no set
backs provided as required under the Building Rules, especially
on the southern side which is the common boundary of both
parties. The further contention is that such a finding arrived in a
proceedings initiated under Section 406 was not proper,
especially without considering merits of any regularisation
application submitted along with fresh plan, and without
collecting any compounding fee thereon. On the contrary
respondents 1 and 3 contended before the Tribunal that the
construction in question will not in any way violate the
provisions of Building Rules and therefore the directions issued
by the 1st respondent to regularise the construction was perfectly
legal and in order.
4. The petitioner placed reliance on Ext.C1 commission
report filed by an Advocate Commissioner appointed from the 4th
respondent Tribunal, in order to contend that there is no
clearance on the southern side of the 3rd respondent’s building as
W.P.(C).25703/05 4
required under the Building Rules. But the Tribunal found that
the descriptions about the compound wall in Ext.C1 report is
unintelligible regarding its alignment and further found that all
the measurements stated therein are only approximate.
Therefore it is found that placing reliance on the report for
entering into any conclusion will be unsafe. Hence the Tribunal
found that there is no satisfactory evidence adduced by the
petitioner to prove that the building of the 3rd respondent is
lacking from statutory clearance from boundaries of the
property. However, the Tribunal found that there exist a
dispute, which is pending in a civil court, with respect to the
alignment of the boundary line separating the properties of the
petitioner and 3rd respondent. Therefore it is held that
conclusions in Ext.P3 to the effect that there is sufficient open
space on the southern side of the 3rd respondent’s building, as
stipulated in the Building Rules, is not acceptable, because such
a finding is based only on the position of the boundary wall as it
exist now, which may change when the actual boundary line is
fixed. Hence the Tribunal found that conclusions regarding
sufficiency of open space on the southern side can be fixed only
by a competent civil court. The Tribunal ultimately dismissed
the appeal reserving right of the petitioner to move before the
Secretary of the 1st respondent Corporation, after disposal of the
W.P.(C).25703/05 5
civil suit, in case if there is any change in the alignment of the
common boundary as fixed by the civil court. It is clarified that
decision if any taken by the Secretary with respect to
regularisation will be subject to the petitioner’s right to move for
re-consideration, on the basis of the decision of the civil court as
stated above.
5. Heard Sri. K. Ramakumar, learned senior counsel
appearing for the petitioner, Sri.B. Harish Kumar, learned
counsel appearing for the 3rd respondent and the standing
counsel appearing for the 1st respondent Corporation. The
factual dispute regarding the alignment of the common
boundary, which is pending adjudication in civil court, and the
dispute regarding actual clearance available cannot be
adjudicated and resolved by this Court. But the main thrust of
argument of the learned senior counsel is regarding the
irregularity and impropriety in Ext.P3 order, to the extent it
arrived at a finding to the effect that there is required clearance
on all sides of the 3rd respondent’s building, and the construction
does not in any way infringe the provisions of the Building Rules,
and the same can be regularised. Such a decision, according to
the petitioner, is highly premature. The question whether a
construction made in deviation from the approved plan can be
regularised or not and whether such deviated construction will
W.P.(C).25703/05 6
infringe the provisions of the Building Rules, are matters to be
considered and adjudicated on the basis of the application for
regularisation to be submitted along with fresh plan containing
the altered constructions effected. It is not a matter which can
be decided in a proceedings initiated under Section 406, even
before receipt of an application for regularisation, is the
contention.
6. Section 406 of the Act contemplates procedure for
demolition or alteration of building unlawfully commenced,
carried on, or completed, in violation of an approved plan. The
said provision contemplate issuance of a provisional order
requiring the owner to demolish the work unlawfully executed or
made in violation of the approved plan or to bring such work in
conformity with the plan and specifications on which the
permission is granted, or to show cause against confirming such
provisional order. After hearing objections, the Secretary of the
Corporation is empowered either to confirm the order or to
modify the same to such extent he may think fit. Therefore the
normal procedure in a proceedings under Section 406 of the Act,
should culminate in a finding as to whether there is unauthorised
or deviated construction and as to whether it is to be
demolished, removed or altered. But the proviso to Section
406(1)(iii) give discretion to the Secretary for regularising such
W.P.(C).25703/05 7
construction on realisation of the prescribed compounding fee, if
such construction is not in contravention of the provisions of the
Building Rules. Chapter XX of the Building Rules deals with
Regularisation of unpermitted constructions and deviations.
Rule 143 of the Building Rules deals with the powers of the
Secretary to regularise certain constructions. The procedure to
be adopted for the purpose of considering regularisation is
enumerated in Rule 144. Rule 145 deals with the Application fee
to be collected. Rule 146 prescribe detailed procedure to be
adopted when a decision is taken either to grant or to refuse
regularisation. It provides about determination of compounding
fee to be collected, its rates, method of collection etc. Intimation
to be given in a case of refusal is also contemplated therein.
Again Rule 147 of the said Rules enumerate steps to be followed
for demolition of buildings which are not regularised.
7. From a scanning of the above quoted provisions it is
evident that a comprehensive scheme is provided to deal with
applications for regularising unauthorised or deviated
constructions. Therefore the question mooted for consideration
is as to whether a decision permitting regularisation can be
taken by the Secretary, without complying with the procedure
contemplated in Chapter XX of the Building Rules, straight away
in proceedings initiated under Section 406 for demolition of an
W.P.(C).25703/05 8
unlawfully completed construction. Whether it is proper to drop
any proceedings initiated under Section 406, merely on the
finding that the unauthorised or deviated construction can be
regularised. Basically, the right to approach the Secretary for
regularisation is an option provided under the statute to the
owner of the building which is constructed unauthorisedly or
deviated from the approved plan. Only when the person, against
whom an action under S.406(1) is initiated, approaches the
Secretary with an application as contemplated under the proviso
to Section 406(1)(iii) complying with all the procedure
contemplated in Chapter XX of the Building Rules, the Secretary
need to examine the scope for granting regularisation. Then
only the Secretary can take an appropriate decision based on the
particulars furnished in the application for regularisation and
revised plan submitted therewith, as to whether regularisation
can be granted or refused. While considering a question as to
whether a provisional order issued for demolition of the
unauthorised construction need be confirmed or not, the
Secretary is not expected to arrive at any conclusion regarding
regularisation, without there being any such request submitted
in accordance with the Building Rules. Any decision with
respect to grant of regularisation if taken without compliance of
the procedure in Rule 143 to 147 contained in Chapter XX of the
W.P.(C).25703/05 9
Building Rules cannot be sustained as proper and regular.
8. Under the above mentioned position of law Ext.P3, to
the extent it held that the construction made in deviation of the
approved plan is liable to be regularised, cannot be sustained.
Since the appellate authority had not looked into the matter in
the above perspective, Ext.P4 also requires reversal. Hence the
findings in Ext.P3 to the above extent, which is confirmed in
Ext.P4, is hereby set aside. But the 1st respondent is restrained
from taking any further steps against the 3rd respondent based
on the findings regarding the unauthorised construction made in
deviation from the approved plan, provided the 3rd respondent
submits proper application for regularisation accompanied with
plan and drawings along with remittance of required fee, as
provided under Rule 143 to 145 of the Kerala Muncipality
Building Rules, 1999, within a period of one month from today.
If such an application is received, the Secretary of the 1st
respondent Corporation shall consider and dispose of the same
on its merits, following the procedure contemplated in Rule 143
to 147 of the Building Rules, untramelled by any observations in
Ext.P3 or P4 orders. Since the petitioner herein was pursuing
her complaint in the matter, she should be afforded with an
effective opportunity of personal hearing before any decision is
taken in this regard. The decision in this regard will be taken by
W.P.(C).25703/05 10
the Secretary as early as possible, at any rate within a period of
six weeks from the date of receipt of such application. It is made
clear that, considering the pendency of the civil dispute
regarding alignment of the common boundary wall of the parties,
the decision if any taken by the Secretary as above will be
subject to the final outcome of the civil suit and either parties
are at liberty to work out their remedies against such decision
based on the final outcome of the civil suit.
The writ petition is disposed of as above.
C.K.ABDUL REHIM, JUDGE.
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