Dismissed

George Varghese, v. State of Kerala

Kerala HC21 Oct 2021WA/1344/2021

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a single judge's order quashing a rejection of building regularization. The Court held the lower judge did not commit a jurisdictional error requiring intervention, as factual verification of regularization criteria under the 2010 Rules was still required.

What did the court decide?

The writ appeal is dismissed; the order directing the State Government to reconsider the regularization application is affirmed.

George Varghese, Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 21^ST DAY OF OCTOBER 2021 / 29TH ASWINA, 1943

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WA NO. 1344 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 37567/2017 OF HIGH COURT OF KERALA, ERNAKULAM DATED 1.9.2021

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APPELLANT:

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GEORGE VARGHESE,

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AGED 68 YEARS, S/O. LATE DR. T.E. GEORGE, AMBALAVELIL, GANDHI MUKKU, KOTTARAKKARA, KOLLAM DISTRICT-691 506

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BY ADV V.PHILIP MATHEW

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 JOINT SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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3 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, PALAYAM, THIRUVANANTHAPURAM-695 001

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4 THE TOWN PLANNER, OFFICE OF THE TOWN PLANNER, KOLLAM DISTRICT-691 005

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W.A.1344/2021

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5 THE KOTTARAKKARA MUNICIPALITY, OFFICE OF THE KOTTARAKKARA MUNICIPALITY, PULAMON P.O, KOTTARAKKARA, KOLLAM DISTRICT-691 531, REPRESENTED BY ITS SECRETARY.

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6 SECRETARY, KOTTARAKKARA MUNICIPALITY, PULAMON P.O, KOTTARAKKARA, KOLLAM DISTRICT-691 531

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OTHER PRESENT:

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SRI.K.P.HARISH, SR GOVERNMENT PLEADER FOR R1-4, SRI.M.K.CHANDRAMOHAN DAS SC FOR R5

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.1344/2021

J U D G M E N T

Dated this the 21^st day of October, 2021

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Shaji P. Chaly, J.

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Instant writ appeal is filed by the writ petitioner, against the judgment in W.P(C). No.37567 of 2017 dated 1.9.2021, by which the writ court disposed of the writ petition observing thus:

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"16. Rule 1(3) provides that the Rules shall apply to all unauthorised constructions carried out or completed on or before 31.12.2008 in any Municipal area or in any Grama Panchayat area. Rule 2(1)(i) defines 'unauthorised construction' as any construction or reconstruction carried out or completed on or before 31.12.2008, which the Secretary has no power to regularise. Rule 5(1)(b) provides that the Secretary shall verify the application for regularisation and state whether the unauthorised construction was carried out or constructed on or before 31.12.2008.

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Thus, it is seen that the reason for rejection of petitioner’s application for regularisation of the building is that the petitioner has not carried out or constructed the building before 31.12.2008. In the judgment in WP(C) No.16591/2013, this Court, as per Ext.P12 judgment (in Paragraph 15), held as follows:

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“By using the words 'carried out' and 'completed' within the compass of the same Rules would obviously mean that the authority intended to have some difference between these two words. Therefore, when it is mandated that the construction should have been carried out or completed, it

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would obviously mean that either the construction ought have been completed before that date or some work ought have been carried out before that date, obviously intending that the work should have been in progress on or before the appointed date, namely 31.12.2008. Therefore, I am of the view that the benefit of the Rules would be applicable if the construction has been carried on before 31.12.2008 and that such construction that were carried on before that day or completed before that day would also have to get the benefit of the Rules, if the petitioner is otherwise entitled to.”

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Ext.P16 does not show that the application for regularisation of the construction that is carried on by the petitioner before 31.12.2008, has been considered for regularisation.

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This aspect is significant since the petitioner has a specific case that an independent surveyor has furnished a report certifying that the construction work carried, of the 2^nd , 3^rd , 4^th floors and head room (5^th floor) was completed before 10.12.2006. If that be so, the petitioner should be eligible for consideration of his regularisation application to that extent, going by Ext.P12 judgment. As Ext.P16 has not adverted to this aspect, it is liable to be set aside for nonapplication of mind.

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In the circumstances, the writ petition is disposed of setting aside Ext.P16 and directing the 1st respondent to reconsider the application for regularisation submitted by the petitioner in the light of Ext.P12 judgment as confirmed by Ext.P13 judgment in Writ Appeal and as clarified in Ext.P14 Review Petition, after giving an opportunity of hearing to the petitioner, and pass orders within a period of three months."

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W.A.1344/2021

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Short facts leading to filing of the writ appeal are that:

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Appellant is the petitioner in W.P.(C)No.37567/2017, which was filed challenging Exhibit P16 order passed by the 2^nd respondent, rejecting his application for regularization of a hospital building . The writ petition was disposed of quashing Exhibit P16, and directed the Government to reconsider the application for regularisation based on Exhibits P12 judgment of a learned Single Judge of this court in an earlier round of litigation by and between the parties, after hearing the appellant.

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The Government had initially rejected the application for regularization through Exhibits P9 and P10. Those orders were quashed by Exhibit P12 judgment. Government, again passed the same order by Exhibit P16. Regularisation application is pending for more than a decade and no useful purpose will be served by reconsideration by the Government, is the paramount contention.

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According to the appellant Exhibit P1 regularization rules are not confined only to constructions or re-constructions which are completed. It applies for constructions or re-constructions which are carried out also. Application for regularization was rejected without taking into account the constructions carried out on the assumption that regularization rules would apply only if constructions are completed. This Hon'ble Court has found in paragraph 19 of Exhibit P12 that “if the

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petitioner has carried out any work relating to the unauthorized constructions on or before 31.12.2008, such portion of the constructions would be entitled to be considered for regularization subject to other conditions.” The regularization application was considered ignoring this direction.

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The writ court, after considering the rival submissions and taking note of the legal provisions, disposed of the writ petition with the observations, findings and directions as extracted above.

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Being aggrieved, instant writ appeal is filed on the following grounds:

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A. The learned Single Judge ought to have allowed the second and third reliefs also and ordered regularization of the building considering the findings of this Hon'ble Court in paragraphs 17 and 18 of the judgment under challenge.

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B. Exhibit P16 was passed ignoring the Surveyor's report dated 8.2.07 and the contentions in paragraphs 15 and 16 of Exhibit P15.

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C. The judgment under challenge is wrong, illegal and unsustainable. It was passed without considering the real facts.

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D. The judgment under challenge was passed without taking note of Exhibit P5 which mentions the certificate of the building designer that the construction was over before 31.12.08.

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E. The question of regularization is pending for more than a decade. At this stage, considering the peculiar facts of this case, the writ Court ought to have directed the Government to grant regularization.

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W.A.1344/2021

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Heard learned counsel for the appellant Sri. Philip Mathews,

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learned Senior Government Pleader Sri.K.P. Harish and Sri. M.K. Chandramohan Das appeared for Kottarakkara Municipality and perused the pleadings and materials.

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In fact, the writ petition was allowed by the learned Single Judge and quashed Ext.P16 order, passed by the State Government, by which regularisation of the construction sought for by the appellant was declined holding that the construction of the building violates Rules 1(3), 2(1)(i) and 5(1)(b) of Kerala Building (Regularisation of Unauthorised Construction) Rules 2010. The learned Single Judge found that an independent surveyor furnished a report certifying that the construction work of the 2^nd , 3^rd , 4^th floors and head room was completed before 10.12.2006 and if that be so, the petitioner should be eligible for consideration of his regularisation application to that extent and in accordance with the tenor and terms of Exhibit P12 judgment rendered by the learned Single Judge in the earlier round of litigation.

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The grievance of the appellant is that, though appellant has sought for a direction to regularise constructions since the regularisation application was pending consideration for the past 10 years without being adjudicated in contemplation of Exhibit P1, Rules 2010, the learned Single Judge failed to consider the said relief .

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W.A.1344/2021

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On the other hand, learned Senior Government Pleader as well as learned Standing Counsel appearing for the Kottarakkara Municipality submitted that even though the application was dismissed by the State Government not being maintainable, the entitlement of the appellant to get the illegal construction regularised in terms of appendixI of Rules 2010, was not considered by the Government. We find force in the said contention advanced by learned Senior Government Pleader as well as learned Standing Counsel, for the basic reason that the Government have dismissed the application having found that the appellant was not entitled to submit an application since the construction carried out by the appellant would not come within the prescribed parameters of Rules 2010.

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In our view, Rule 5 of Rules 2010 prescribes the procedure for disposal of the application, and Appendix-I thereto deals with regularisation criteria, in the case of unauthorised construction in any municipality area, carried out or completed on or before 31.12.2008, violating the provisions of building Rules then in force. On an analysis of Appendix-I of the Rules 2010, it is clear that even the Government is not vested with any absolute powers to regularise any illegal constructions, unmindful of the stipulations contained in the Rules. On the other hand the unauthorized construction carried out or completed on or before 31.12.2008 is entitled to be regularised on satisfying the

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W.A.1344/2021

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criteria contained under Appendix-I. Appendix-I reads thus:

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APPENDIX-I [See Rule 5(1)(f)]

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Regularisation criteria in the case of unauthorised constructions in any Municipal Area carried out or completed on or before 31^st December 2008, violating provisions of Building Rules.

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Unauthorised construction(s) carried out or completed on or before 31^st December 2008, violating the building rules shall be considered for regularisation subject to satisfying all the criteria given under:

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(1) The constructions shall conform to the provisions in Section 383A of the Kerala Municipality Act, 1994 and Section 220(b) of the Kerala Panchayat Raj Act, 1994.

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(2) The construction shall conform to the provisions of the Town Planning Scheme if any for that area sanctioned under the Town Planning Act(s).

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(3) Open spaces/yards from the boundaries of the plot to the construction and the minimum clear width of access to the building and plot as well as the width of the street giving access to the plot from the main street shall not be less than two-third of the mandatory values required as per Building Rules. However, the width of access to the building and plot as well as the width of the street giving access to the plot from the main street shall not be less than 3.6 metres or as stipulated above whichever is higher and shall be motorable, if any parking is required as per item (5) below.

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(4) The maximum permissible Floor Area Ratio and the maximum permissible coverage shall be as stipulated in Building Rules.

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(5) There shall be provision for off-street parking of motor cars within the plot at the rates not less than that given in the Table prescribed hereunder.

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Table 1

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Sl.	Building Use/	Minimum percentage of
No.	occupancy	the number of mandatory off-street parking for
		motor cars as per Rule
		34 of building rules that shall be available in the plot.

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(1)	(2)	(3)
(1)	Group F – Mercantile/ Commercial occupancy with total floor area exceeding 750 sq. metres	100%
(2)	Cinema Theatres, Wedding halls and community halls under Group D – Assembly occupancy with total floor area exceeding 500 sq. metres.	75%
(3)	All others not covered under (1) and (2) above.	50%

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(6) The construction shall conform to the provisions of under Ancient Monuments and Archaeological Sites and Remains Act, 1958 and Rules 1959 and the Kerala Conservation of Paddy Land and Wetland Act, 2008 or any notification issued under Coastal Zone Regularisation by the Ministry of Environment for Forest, Government of India.

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(7) Mandatory space for loading and unloading as per Rule 34 of the Building Rules shall be available at site.

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(8) Every off-street parking space shall have adequate vehicular access.

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(9) High Rise buildings as defined in rule 110 of the Building Rules shall satisfy the safety provisions contained in Rule 112 to 119 of the Building Rules.

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(10) In the case of highrise buildings and telecommunication

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towers, Structural stability certificates to the satisfaction of the Secretary, from the structural engineer shall be produced by the owner along with the application. If such telecommunication tower is erected above any building, the structural stability certificate shall be submitted in respect of that building also.

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(11) Residential apartments shall comply with the provisions of Rule 50 of the Building Rules pertaining to recreational space.

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(12) Concurrences required as per Building Rules from various Central or State Government Departments and agencies such as Fire force, Airport Authority, Railways, Defence Authorities, Kerala State Pollution Control Board, etc. shall be obtained.

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(13) In addition, constructions shall conform to the safety and security provisions in the Building Rules.

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The criteria contained in Appendix-I would make it clear that unless and until the factual aspects available on ground in regard to the construction is appropriately verified, the Government would not be in a position to arrive at a definite conclusion in the matter of regularisation, and fix the compounding fee prescribed in Appendix-Ill of the Rules 2010, and that is the reason why the learned Single Judge has directed the Government to reconsider the application. Taking into account the above said aspects, we are of the considered opinion that appellant has not made out any case of jurisdictional error or other legal infirmity justifying our interference in an intra court appeal, filed under Section 5 of the Kerala High Court Act, 1958.

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Needless to say, the appeal fails, accordingly it is dismissed. However, we make it clear that the State Government shall reconsider

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the regularisation application submitted by the appellant, within the time period prescribed in the judgment, after making due enquiries in contemplation of the Rules 2010 and the appendix thereto.

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Sd/-

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S. Manikumar, Chief Justice

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Sd/Shaji P. Chaly,

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Judge

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sou.

George Varghese, v. State of Kerala

Case brief

What is this about?

What did the court decide?

George Varghese, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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