Allowed

Prince Jacob v. State of Kerala and Ors.

Kerala HC29 Sept 2016WP(C)/23174/2009

Case brief

AI extract

What is this about?

The petitioner challenged a regularisation order imposing demolition conditions. An Advocate Commissioner found the building had adequate setback and no additional constructions. The High Court held the demolition conditions were unjustified and set them aside, allowing the written order to regularise the construction subject to fee payment.

What did the court decide?

Conditions for demolition in the regularisation order were set aside; the order permitting regularisation of construction upon payment of compounding fee was upheld.

Prince Jacob Vs State of Kerala and Ors. — 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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THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938

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W.P(C).No.23174 of 2009 (N)

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PETITIONER(S):-

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PRINCE JACOB, S/O.P.T.CHACKO, PUTHENPURAYIL HOUSE, KARIMANNOOR P.O., KARIMANNOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT; REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.T.CHACKO, S/O.FRANCIS, PUTHENPURAYIL HOUSE, KARIMANNOOR P.O., KARIMANNOOR VILLAGE, THODUPUZHA, IDUKKI DISTRICT.

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BY ADVS.SRI.JOSE JOSEPH ARAYAKUNNEL

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SRI.VARGHESE PARAMBIL

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RESPONDENT(S):-

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1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE DEPUTY DIRECTOR OF PANCHAYATS, THODUPUZHA P.O., IDUKKI DISTRICT.

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3. THE SECRETARY, KARIMANNOOR GRAMA PANCHAYATH, KARIMANNOOR P.O., THODUPUZHA, IDUKKI DISTRICT.

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R1 & R2 BY GOVERNMENT PLEADER SMT.VINITHA HARIRAJ. R3 BY ADVS. SRI.SHAJI THOMAS PORKKATTIL

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SRI.T.V.VINU

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ADVOCATE COMMISSIONER - SRI.M.R.VENUGOPAL.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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W.P.(C) NO.23174 OF 2009-V

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1	LETTER OF THE PRINCIPAL TO GOVERNMENT DT.11.7.06.
EXT.P2	PHOTOCOPY OF THE RECEIPT FOR THE FEE PAID DATED 29.3.00.
EXT.P3	GOVERNMENT ORDER NO.40330/E3/99/LSGD DATED 29.1.00.
EXT.P4	THE LETTER ISSUED FROM THE 3RD RESPONDENT TO THE PETITIONER ON 12.7.99.
EXT.P5	OWNERSHIP CERTIFICATE DATED 3.5.01 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT.
EXT.P6	THE ORDER FOR DEMOLISHING OF THE BUILDING ISSUED TO THE PETITIONER FROM THE 3RD RESPONDENT.
EXT.P7	COPY OF THE G.O.(RT) NO.1406/2009/LSGD DATED 12.06.09.
EXT.P8	COPY OF THE DETAILS FILED BY 3RD PARTY.

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RESPONDENT'S EXHIBITS:-

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EXT.R3(a) TRUE PHOTOCOPY OF THE AGREEMENT/UNDERTAKING SUBMITTED BY THE PETITIONER DATED 27.04.2001.

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vku/[ true copy ]

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K. Vinod Chandran, J

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---------------------------------------W.P.(C) No.23174 of 2009-N

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Dated this the 29^th day of September, 2016

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JUDGMENT

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None appears for the petitioner when the matter was heard.

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The petitioner is concerned with a building in 1 [one] cent

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of property owned by the petitioner in Survey No.607/10/5 [Re-survey No.308/4] of Karimannoor Village. The property is situated within the Panchayat and is adjacent to the main road. The petitioner was issued with a notice, alleging unauthorised construction, and the petitioner had applied for regularisation of the same. The allegation was that the petitioner had not maintained the set back as provided under Section 220(b) of the Kerala Panchayat Raj Act, 1994. The regularisation application was considered and Exhibit P7 order was passed which to the extent it directs demolition of a further unauthorised construction, is challenged before this Court.

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A reading of Exhibit P7 would indicate that the regularisation application was considered on the basis of a direction issued by this Court in a writ petition. The Government having not

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WP(C) No.23174 of 2009 - 2 -

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been able to trace out the application, the petitioner was directed to file a fresh application before the Secretary and route it through the Town Planner. The application having been received at the Government, with the remarks of the Town Planner, Idukki, it was found that the allegation of lack of set back under Section 220(b) was correct; but the construction was completed before 15.10.1999. The construction alleged was found to be entitled for regularisation. A compounding fee of Rs.4,500/- [Rupees four thousand and five hundred only] was also directed to be remitted and the Secretary was directed to regularise the construction made.

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After ordering such regularisation, the Government looked into the report of the Town Planner and found that there are other additional constructions. Hence, the regularisation was made subject to the following conditions:

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“(a) The wall, shutter and the temporary extensions erected in front of the RCC Pillar row in the ground floor should be demolished.

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(b) Other constructions existing in the mandatory front open space of 3 metres, should be demolished at the party's cost without any demand for compensation, if the land is required for any Government or quasi Government purpose”.

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WP(C) No.23174 of 2009 - 3 -

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The petitioner remitted the compounding fee and impugn Exhibit P7, to the extent it imposes the conditions.

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This Court, by order dated 12.08.2014, ordered an Advocate Commission; to visit the property and file a report. The report dated 16.09.2014 is placed on record. The Advocate Commissioner having inspected the site, found a number of buildings abutting the road side; one of which was the petitioner’s building. The petitioner’s building was a three storeyed building [Ground + 2 Floors] and the same was inspected as also the two adjacent buildings. The Commissioner categorically reported that no additional constructions could be detected and the building has no pillars and the same stands on the four walls built around the building, the front wall of which abuts the road. On an inspection of the buildings to the east and west, it was found that the eastern building juts about 16.5 inches to the northern side, i.e., towards the road and the one on the western side projects about 1.1 meters to the northern side. The photographs taken of the subject building with those adjacent are also appended to the report.

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WP(C) No.23174 of 2009 - 4 -

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The report and the photographs indicate that the disputed building of the petitioner has more set back than the adjacent buildings and in such circumstances, there could be found no additional constructions on the petitioner’s building than that is directed to be regularised as per Exhibit P7. In such circumstances, the conditions in Exhibit P7 are set aside. Exhibit P7 to the extent it regularises the construction of the petitioner on payment of the compounding fee is upheld.

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The writ petition is allowed. No costs.

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Sd/- K.Vinod Chandran Judge.

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vku/-

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[ true copy ]

Prince Jacob v. State of Kerala and Ors.

Case brief

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What did the court decide?

Prince Jacob v. State of Kerala and Ors.

Case brief

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