IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26776 of 2003(K)
1. S.K.MOHAN, S/O. S.T.KURIAN,
... Petitioner
Vs
1. CORPORATION OF KOCHI,
... Respondent
2. THE SECRETARY,
3. SATISH MITTAL,
4. MITESH PATTEL,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.PREMJIT NAGENDRAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :10/06/2008
O R D E R
ANTONY DOMINIC, J
-----------------------------------------------------------------
W.P.(C).NOs.26776/2003,10847/2006 &20527/2006
-----------------------------------------------------------------
Dated this the 10th day of June, 2008
JUDGMENT
The controversy in these writ petitions is in relation to
an alleged unauthorised construction made by the
petitioner in WP(c).No.10847/2006. The facts of the case
are as follows.
2. The common petitioner in W.P.(c).Nos.26776/2003
and 20527/2006, Sri. S.K. Mohanan is the 3rd respondent in
W.P(c).No.10847/2006 and he is a resident of flat Number
1106 on the 12th floor of the multistoried building, viz.
Pioneer Towers, Marine Drive, Ernakulam. The petitioner
in W.P.(c).No.10847/2006, Sri. Mitesh K. Patel, is the
common respondent in other cases and is also a resident of
flat No.1105 on the 12th floor of the same building.
3. According to the petitioner in W.P(c).
Nos.26776/2003 &20527/2006, the residents of the 12th
W.P(c).Nos.26776/03 & conn. 2
floor, the top most floor of the building, did not have any
opening to the roof portion of the building. It is alleged that
the petitioner in W.P.(c).No.10847/2006 made an opening
through the concrete roof of the building (which according
to Sri. Mitesh K. Patel, was through a glass portion) and
constructed a staircase connecting the opening. It is stated
that on the roof, a room with water connection was also
constructed. On coming to the know of the same, the
petitioner in WP(c).Nos.26776/2003 and 20527/2006,
Sri.S.K. Mohanan complained to the Secretary of the
Corporation and after enquiries, a provisional order under
Section 406(1) of the Muncipalities Act was issued and
thereafter a final order under Section 406(3) was issued
confirming the provisional order. This order is Ext.P1 in WP
(c).No.20527/2006 filed by sri. S.K. Mohanan.
4. Against Ext.P1 final order issued under Section 406
(3) of the Muncipalities Act, the petitioner in W.P.(c).
No.10847/2006, Sri. Mitesh K. Patel, filed an appeal to the
Corporation and that was rejected by order dated
10.3.2000 (Ext.P2 in WP(c).No.20527/2006). In the
meanwhile, the petitioner in W.P(c).No.20527/2006, filed a
W.P(c).Nos.26776/03 & conn. 3
writ petition before this court as O.P.No.22636/98 for
implementing Ext.P1. That writ petition was finally disposed
of by judgment dated 23.01.2002 directing implementation
of Ext.P1 final order. It is submitted that, even thereafter
consequential action was not taken and seeking
implementation of Ext.P1, for the second time, and for other
reliefs he has filed WP(c).No.26776/2003.
5. During the pendency of that writ petition, the
petitioner in WP(c).No.10847/2006 filed an application for
regularisation of the construction, in respect of which
Ext.P1 order was issued. Such application was made to the
Government and as orders were not passed he filed a writ
petition before this court as O.P.No.25192/2002 praying
for a direction for an expeditious consideration of his
application for regularisation. That Original Petition was
disposed of by judgment dated 16.9.2002, directing
consideration of the application for regularisation and also
ordering stay of demolition in the meanwhile.
6. It is stated that in pursuance to the above judgment,
Government heard all the parties and issued Ext.P5 order
rejecting the application for regularisation. Seeking review
W.P(c).Nos.26776/03 & conn. 4
of the said order, invoking the power of the Government
under Rule 7 of the Kerala Building (Regularisation of
Unauthorised Construction and Land Development) Rules,
1999,(here-in-after referred to as the Rules) the petitioner
in WP(c).No.10847/2006 filed a review petition. That was
rejected by the Government without hearing any one of the
parties. The order rejecting the review petition was
challenged by the petitioner by filing WP(c).No.12747/2005.
By judgment dated 22.6.2005, that writ petition was
disposed of quashing the order rejecting the review petition
and directing its reconsideration with notice to all
concerned.
7. In pursuance to the aforesaid judgment, the matter
was reconsidered by the Government and by Ext.P7 in WP
(c).No.20527/2006, the review was allowed subject
conditions, the first of which being relevant, is as follows.
“(a). consent from the owner of the
neighbouring property (i.e. Sri. S.K. Mohan)
should be obtained and produced before the
Secretary of the local body.
8. It is challenging Ext.P7, WP(c).No.20527/2006 has
W.P(c).Nos.26776/03 & conn. 5
been filed by Sri. S.K.Mohanan and Sri. Mitesh K. Patel, the
petitioner in WP(c).No.10847/2006 in whose favour it is
issued has filed the writ petition challenging the above
condition imposed in Ext.P7. The prayer in WP(c).
No.20527/2006 is for an order directing implementation of
Ext.P1 and the fate of this writ petition will depend upon the
out come of the other two writ petitions.
9. I have heard the submission made by Sri. S.
Sreekumar, the counsel for the petitioner in W.P(c).
Nos.26776/2003 & 20527/2006 and Sri. Premjit Nagendran,
counsel for the petitioner in W.P(c).No.10847/2006, whose
clients are the party respondents in the two writ petitions.
Standing Counsel for the Corporation and the Government
Pleader were also heard.
10. The main contention that was urged by Sri.S.
Sreekumar is that, by the unauthorised construction that
has been made by the petitioner in WP(c).No.10847/2006,
he has violated the Marine Drive scheme. It is also
contended that, there cannot be regularisation of any
construction which is made in violation of the town planning
scheme. It was also argued that Ext.P7 in WP(C).
W.P(c).Nos.26776/03 & conn. 6
No.20527/2006 was passed without notice to the petitioner
and therefore, the said order is vitiated for violation of the
principles of natural justice.All these contentions are
controverted by the counsel for the respondents.
11. As far as the case of scheme violation is concerned,
this aspect of the matter has been dealt with in detail, in
Ext.P7 order rendered by the Government. It is stated that,
when the matter was heard, the contention regarding
violation of the scheme was raised and that the Town
Planning Officer, had confirmed that the petitioner in WP
(c).No.10847/2006 has violated the scheme. However, it is
seen that the Town Planning Officer has pointed out that,
the violations are not serious in nature and therefore the
construction made could be regularised conditionally. It was
acting upon this recommendation made by the Town
Planning Officer, that in Ext.P7, the Government have held
that the construction can be regularised on payment of the
compounding fee.
12. As far as the Rules, that are relied on by the
learned counsel for the petitioner in WP(c).Nos.20527/2006
and 26776/2003 are concerned, it is mainly of the Rule 5 of
W.P(c).Nos.26776/03 & conn. 7
the Rules. Rule 5 deals with the procedure for disposal of an
application for regularisation of the unauthorised
construction and land development. The sub Rule (3) relied
on by the counsel says that, on receipt of an application, the
Secretary shall note the extent of violation of any provision
in the Building Rules and the Town Planning Scheme, if any,
in the report. The compounding fee as in table-I which is
to be remitted, in case regularisation is allowed, also has to
be noted in the report. Sub rule (7) says that no
unauthorised construction shall be regularised if the
construction so carried out affects adversely the proposals
of any sanctioned General Town Planning Scheme(Master
Plan) or Detailed Town Planning scheme in the area or if the
construction grossly violates any safety provisions in the
Building Rules for the time being in force or any safety
conditions specified in the exemption order or permit.
Counsel argued that, in view of Sub rule (7), if there is
anything violating the Scheme, then regularisation cannot
be granted.
13. A combined reading of sub rule (3) and (7) of Rule
5 reveals that, even if there is violation of the Town
W.P(c).Nos.26776/03 & conn. 8
Planning Scheme, still an application for regularisation has
to be processed by the Secretary as provided in Sub rule
(3). Such construction can also be regularised, provided the
unauthorised construction made does not adversely affect
the proposal of any sanctioned General Town Planning
Scheme or Detailed Town Planning Scheme. It is not that,
in all cases, where there is any minor violation of Scheme,
the Government is devided of its power of regularisation.
14. In this case, as already noticed, the Town Planning
Officer has opined that the construction can be regularized,
since the violations are not serious in nature. This was
because the unauthorised construction made by the
petitioner in W.P.(c).No.10847/2006 was not one adversely
affecting the Scheme. In such circumstances, the first
respondent was perfectly justified in ordering
regularization subject to the payment of compounding fee
as prescribed in the Rules. Therefore, I do not find any thing
illegal in Ext.P7 warranting interference.
15. Next is the complaint of Sri. C.K. Mohanan, the
petitioner in WP(c).No.26776/2003 and 20527/2006 that
Ext.P7 was issued without notice to him. It is stated in
W.P(c).Nos.26776/03 & conn. 9
Ext.P7 order that, notice was issued to him on two
occasions and those notices were returned to the
Government by the postal authorities undelivered. It has
come out during the course of arguments that the petitioner
in WP(c).Nos.26776/2003 and 20527/2006 is a non-
resident Indian and that most of the time he is out of India.
If that be so, there is nothing unnatural, if the notice was
returned undelivered and the Government cannot be faulted
of having violated natural justice. In this context, it needs to
be mentioned that, notice issued by this court in WP(c).
No.10847/2006 was also remaining unserved on him until
now and at the time when these case were taken up for
hearing, the learned counsel has accepted notice on his
behalf. From Ext.P7, since it is evident that, notice was
repeatedly sent and as it was undelivered, I am not able to
find that the Government has violated the principles of
natural justice in passing Ext.P7 order, without hearing the
petitioner in WP(c).No.20527/2006 and 26776/2003.
Therefore, the contentions raised by the learned counsel
for the petitioner in these two cases are only to be rejected
and I do so.
W.P(c).Nos.26776/03 & conn. 10
16. Coming to the grievance of Sri. Mitesh K. Patel,
the petitioner in WP(c).No.10847/2006, is concerned, as
already noticed, it is confined to condition No.1 in Ext.P7.
Condition No.1 in Ext.P7 requires him to obtain sanction of
the owner of the neighbouring property viz the petitioner in
WP(c).Nos.26776/2003 & 20527/2006 and produce the
same before the Secretary of the Corporation. In view of the
fact that these two parties are at loggerheads and are
fighting for years and even now there is no sign of any
compromise, I am of the view that, this is a condition
incapable of compliance. Further, for exercising the power
of regularisation conferred on the Government, it is not a
statutory requirement that the consent of the complainant
should be obtained. If condition No.1 is insisted, the
petitioner in WP(c)No.10847/2006 will be deprived of the
benefit of Ext.P7 order and that shall not be. Even
otherwise, for the implementation of the other conditions,
retension of the Ist condition is unnecessary. Therefore,
condition No.1 in Ext.P7 is liable to be quashed and I do so.
17. I also record the submission of the learned
counsel for the petitioner in WP(c).No.10847/2006 that, in
W.P(c).Nos.26776/03 & conn. 11
case there is any leakage consequent on the construction
that he has made, he will rectify the same at his cost.
Therefore I direct that, in case there is leakage consequent
on the construction that was made by the petitioner in WP
(c).No.10847/2006, the petitioner in the other two cases
shall be at liberty to point out the same to the Secretary of
the Corporation and the petitioner in WP(c).No.10847/2006
shall specify the same as and when he is intimated of it
by the Secretary.
18. In the result WP(c).No.20527/2006 is dismissed
and WP(c).No.10847/2006 is allowed.
In so far as WP(c).No.26776/2003 is concerned, now
that I have upheld Ext.P7 order there is no question of
implementing Ext.P1 order issued under Section 406 of the
Muncipalities Act. Consequently, this writ petition will also
stand dismissed.
ANTONY DOMINIC
vi JUDGE
W.P(c).Nos.26776/03 & conn. 12