Partly allowed

N.P.Jayan and Others v. Kottayam Municipality and Others

Kerala HC23 Nov 2016WP(C)/1765/2008

Case brief

AI extract

What is this about?

The High Court set aside the Municipality order deeming a renovation as new construction, holding it must be treated as a regularizable renovation. The petitioners were directed to file a regularisation application within one month.

What did the court decide?

Impugned order Ext.P20 set aside; petitioners directed to file regularisation application within one month.

N.P.Jayan and Others Vs Kottayam Municipality and… — Municipal and Town Planning | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938

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WP(C).No. 1765 of 2008 (I)

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PETITIONER:

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1. N.P. JAYAN, CHARTERED ACCOUNTANT, S/O.M.J.POULOSE, NJALIYATH HOUSE, THIRUVANKULAM, PRESENTLY RESIDING, AT PONOTH ROAD, KALOOR, KOCHI-17.

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2. MOHAMMED SHAREEF, S/O.AHAMMEDKUTTY, ANAKKATT HOUSE, KALOOR, KOCHI-17.

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3. K.S. USMAN, S/O. SEETHI, KADAVIL HOUSE, EDAPPALLY, KOCHI-24.

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BY ADV. SRI.T.M.ABDUL LATHEEF

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION, THIRUVANANTHAPURAM.

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2. KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KOTTAYAM.

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3. SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM.

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4. TOWN PLANNING OFFICER, KOTTAYAM MUNICIPALITY, KOTTAYAM. R1,R4 BY GOVERNMENT PLEADER SRI RENIL ANTO

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R2 & 3 BY ADVS SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WPC NO 1765 OF 2008:

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APPENDIX

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PETITIONERS EXHIBITS:

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P1: COPY OF THE DOCUMENT NO 2384 OF 2000 DATED 18.8.2000 IN RESPECT OF THE FIRST PETITIONER.

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P2: COPY OF THE DOCUMENT NO 2386 OF 2000 DATED 18.8.2000 IN RESPECT OF THE 2ND PETITIONER.

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P3: COPY OF THE DOCUMENT NO 2385 OF 2000 DATED 18.8.2000 IN RESPECT OF THE 3RD PETITIONER.

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P4: COPY OF THE PLAN APPROVED BY THE FIRST RESPONDENT.

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P5: COPY OF THE ORDER NO P.W.3/BA/596/2000-2001 DATED 24-4-2002 OF THE FIRST RESPONDENT.

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P6: COPY OF THE LETTER NO P.W3/BA/596/2000-2001 DATED 27-8-2002 OF THE 3RD RESPONDENT.

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P7: COPY OF THE ORDER NO PW3/BA/248/2002-2003 DATED 27.9.2002 ISSUED BY THE 1ST RESPONDENT.

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P8: COPY OF THE PERMIT BO.PW3/BA/248/2002-2003 DATED 27-9-2002 ISSUED BY THE 1ST RESPONDENT.

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P9: COPY OF THE TAX RECEIPT NO 55433 DATED 30-9-2004.

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P10: COPY OF THE ORDER NO R-2/3782/04 DATED 27-12-2004 ISSUED BY THE 1ST RESPONDENT.

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P11: COPY OF THE NOTICE DATED 25-9-2002 ISSUED BY THE FIRST RESPONDENT.

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P12; COPY OF THE APPROVED PLAN.

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P13: COPY OF THE ORDER NO PW3/BA/248/2002-2003 DATED 17-7-2007 ISSUED BY THE FIRST RESPONDENT.

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P14: COPY OF THE EXPLANATION DATED 21-7-2007 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.

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P15: COPY OF THE JUDGMENT DATED 3-8-2007 PASSED BY THIS HONOURABLE COURT IN WPC NO 23775 OF 2007.

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P16: COPY OF THE LETTER NO 48254/R.A.3/06/LOC.ADMN DATED 27.10.2007 OF THE FIRST RESPONDENT.

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P17: COPY OF THE LETTER NO C3/9153 DDS DATED 19.1.2007 OF THE FIRST RESPONDENT.

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P18: COPY OF THE LETTER NO B 127/06 DATED 11.6.2007 OF THE 5TH RESPONDENT.

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P19: COPY OF THE REPORT NO PW 3/BA/248/2-03 DATED 5-9-2007 OF THE 2ND RESPONDENT.

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-2-

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WPC NO 1765 OF 2008:

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P20: COPY OF THE ORDER NO PW3/BA/248/202/03 DATED 30-11-2007 PASSED

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BY THE 2ND RESPONDENT.

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RESPONDENTS EXHIBITS:

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R2(A): COPY OF THE LETTER DATED 1-2-2007 ISSUED BY THE 1ST RESPONDENT TO THIS RESPONDENT.

/TRUE COPY/

P.A.TO JUDGE

K.V.

K. VINOD CHANDRAN, J

W.P(C) No. 1765 of 2008 I

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Dated this the 23^rd day of November, 2016

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The petitioners were aggrieved with the

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proceedings taken against them for unauthorised construction with respect to a building purchased by the petitioners and remodeled, allegedly with proper sanction and permission from the Municipality. The petitioners also contend that the proceedings were initiated only on the basis of Ext.P16 issued by the Government; without jurisdiction.

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None appears for the petitioner. I have heard

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the learned Counsel appearing for the Municipality.

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The petitioners had purchased property

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having 8 cents 673 sq. links in Survey No.22/4A, B, 22/5,

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WPC.No.1765/2008

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: 2 :

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22/6, 22/9-1 of Muttambalam Village in Kottayam Taluk.

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At the time of the purchase, there was a double storied building of age 50 years existing in the property. The building due to its age, required alterations and it is submitted that an application was filed before the 1^st respondent Municipality for such alteration and also for changing the roof. The approved plan of the Municipality is seen at Ext.P4. Ext.P5 is the proceedings for alteration as sanctioned by the Municipality.

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Alleging unauthorised construction a

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complaint was filed before the Government, upon which Ext.P6 was issued by the Secretary of the local authority to the Secretary, Local Self Government Department. In Ext.P6 itself it was found that the unauthorised

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WPC.No.1765/2008

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construction could be regularised. Based on a

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regularisation application a further proceeding was issued at Ext.P7, and then again at Ext.P8. In Ext.P8 the petitioners were also permitted to change the roof from Asbestos sheet to RCC slab. Municipality was also collecting building tax as is seen from Ext.P9 and granted exemption from payment of building tax for the first quarter of 2004-05 as evidenced by Ext.P10. After the renovation work, the annual rental value was increased and notice for enhanced assessment was issued at Ext.P11 by the Municipality. The approved plan granted to the petitioner is also produced at Ext.P12.

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It was subsequent to that, Ext.P13 was issued

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alleging unauthorised construction against which Ext.P14

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WPC.No.1765/2008

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objections were raised. The petitioner also challenged the

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same before this Court and this Court by Ext.P15

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judgment directed consideration of the issue. The

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petitioners contention is that the entire proceedings were

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issued based on Ext.P16 dated 27.10.2007 by the Government Secretary. This Court is unable to countenance such contentions since Ext.P13 was issued prior to Ext.P16 and is dated 17.07.2007. The proceedings at Ext.P16 at best might have been issued on the basis of the complaint and it only directed the Municipality to verify whether there has been any unauthorised construction which the Local Self Government Institution would be entitled to do, independently, after due inspection and enquiry. It cannot be said that the

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LSGD had in any manner interfered with the functions

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WPC.No.1765/2008

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of the Municipality, since, the proceedings against an

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alleged unauthorised construction was left to the

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Municipality and there was no opinion expressed on that.

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The petitioner further relies on Ext.P19 to

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contend that the report made by the Municipal Secretary would indicate that the entire construction was carried on

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with sanction and permission from the Municipality and when there was detection of unauthorised construction,

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the petitioner filed a regularisation application based on which the regularisation was granted and penalty levied from the petitioner. This Court admitted the writ petition and ordered status quo. While the writ petition was pending, the directions in Ext.P5 was complied with and an

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order passed at Ext.P20. An amendment application was

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WPC.No.1765/2008

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filed challenging Ext.P20.

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In Ext.P20, four items were alleged as having

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been unauthorised which are extracted hereunder;

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d·ìIí çËïÞùßæa Õ¿çAÏxJáU ÎáùßÏáæ¿ ²øáÍÞ·¢

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²Ýßºîí ÌÞAß ®ÜïÞÍÞ·Õá¢ ÕÞVJßGáIí.

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ËØíxí çËïÞùßæa ÎáX ÕÖ¢ çùÞ{ß¢·í ×GV ØíÅÞÉßºîßøßAáKá.

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æµGß¿Jßæa ÍßJß ÌÜæM¿áJáKá ®K ÕcÞç¼È

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concrete ÉßÜïùáµZ ÈßVNßºîßGáIí.

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On the basis of the said allegations it was

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found that the reconstruction made cannot be considered

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to be a renovation and it has to be deemed to be a pucca

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construction made to a new building. It was hence, that

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Rule 24(3), 25(2) 31(1) 34(2) and 56(2) of the Kerala

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Municipality Building Rules, 1999 was alleged to have

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WPC.No.1765/2008

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: 7 :

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been violated. This was also for reason of the alleged construction, being deemed to be a new construction violating the Town Planning Scheme of TB Road

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Development under the Kottayam Development Plan.

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Admittedly, there was a building existing in

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the property and the petitioners had applied for certain alterations and renovations. Substantial alterations were

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made going by the fact that the roof of the building itself was changed and the existing roof was replaced with reinforced concrete. There had been permission issued by the respondent Municipality and earlier detection of unauthorised construction was also regularised. If at all any further unauthorised construction was made and there

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was a violation of the sanctioned plan, then necessarily, the

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WPC.No.1765/2008

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petitioner would be entitled to file a regularisation application. When the existing building was not demolished, the Municipality could not have deemed the alteration to be a pucca new construction, especially since there is no provision available under the Building Rules to so deem a renovation to be a pucca construction. In such circumstance, Ext.P20 would stand set aside, only to the extent of the same, deeming the petitioners construction activity to be a construction of a new building thus violationg the provisions of a development plan for the Kottayam town. However, the unauthorised construction would have to be regularised and the petitioners would have to file such regularisation application within a period

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of one month from the date of receipt of a certified copy of

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WPC.No.1765/2008

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this judgment. The Municipality shall issue notice to the

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petitioners and the petitioners shall file a regularisation

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application within one month from that date, which shall be considered in accordance with law, if the building has not been already regularised.

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Writ petition would stand disposed of with the

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above directions. No costs.

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Sd/(K. VINOD CHANDRAN, JUDGE)

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jma //true copy//

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P.A to Judge

N.P.Jayan and Others v. Kottayam Municipality and Others

Case brief

What is this about?

What did the court decide?

N.P.Jayan and Others v. Kottayam Municipality and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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