High Court Kerala High Court

Rajeevan vs State Of Kerala Rep.By Secretary … on 6 October, 2009

Kerala High Court
Rajeevan vs State Of Kerala Rep.By Secretary … on 6 October, 2009
       

  

  

 
 
  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.
                     ================
                  W.P.(C) NO. 4230 OF 2007 (C)
                =====================

           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

WPC 4230/07
:2 :

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
:3 :

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

WPC 4230/07
:4 :

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