Quashed

Hidayath Charitable Trust, v. State of Kerala

Kerala HC8 Dec 2021WP(C)/4924/2021

Case brief

AI extract

What is this about?

The High Court set aside the Order dated 12.03.2021 directing the petitioner to submit a regularization application under the 2019 Rules. The Court held that since construction was completed before the 2018 Rules sunset, the application must be considered under the 2018 Rules.

What did the court decide?

Ext.P13 set aside. Second respondent directed to reconsider applications Exts.P10 & P12 under Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2018 within six weeks.

Hidayath Charitable Trust, Vs State of Kerala — Landlord and Tenant | 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 MR. JUSTICE T.R.RAVI

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WEDNESDAY, THE 8^TH DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943

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WP(C) NO. 4924 OF 2021

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PETITIONER:

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HIDAYATH CHARITABLE TRUST, ORUMANAYOOR VILLAGE, CHAVAKAD P.O, THRISSUR 680 512 REPRESENTED BY ITS SECRETARY BY ADVS. SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SHRI.ABI BENNY AREECKAL SMT.LEAH RACHEL NINAN SMT.NANDA SANAL SHRI.ANANDAPADMANABHAN UNNIKRISHNAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, 2ND FLOOR, SECRETARIAT, TRIVANDRUM 695 001 2 SECRETARY, ORUMANAYUR PANCHAYAT, NH 66, ORUMANAYUR, CHAVAKAD P.O, KERALA 680 512 3 ORUMANAYUR VILLAGE OFFICER, VILLAGE OFFICE ROAD, ORUMANAYUR, KERALA 680 512

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WP(C) NO. 4924 OF 2021

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4 ORUMANAYUR KRISHI BHAVAN, AGRICULTURAL OFFICER ORUMANAYUR, THRISSUR, KEERALA 680 512

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5 ASSISTANT ENGINEER, ORUMANAYUR PANCHAYAT, NH 66, ORUMANAYUR , KERALA 680 512

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6 THE REVENUE DIVISIONAL OFFICER, FIRST FLOOR, CIVIL STATION, CIVIL LINES RD, AYYANTHOLE, THRISSUR, KERALA 680 003

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BY ADV SRI.P.RAMACHANDRAN SRI.JACOB SIMON, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 4924 OF 2021

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T.R. RAVI, J.

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W. P. (C). No. 4924 of 2021

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Dated this the 8^th day of December, 2021

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JUDGMENT

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The writ petition has been filed with the following prayers:

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“i) Call for the records leading to the issuance of Exhibit P11 and issue a writ of certiorari quashing the same;

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ii) Issue a writ of mandamus or any other appropriate writ or order or direction, directing the 2^nd respondent to process Ext.P10 application for regularization without insisting on orders under S.27A of the Act, 2008, within a time frame fixed by this Honourable Court;

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iii) Grant such other reliefs which are just and necessary in the interest of justice.”

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The contention of the petitioner is that they had

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completed the construction of the building before 31.07.2017 and that the applications they had filed for regularization, as evidenced by Exts.P10 and P12 have to be considered under the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2018 and not under the Kerala Panchayat Building Rules, 2019. In Ext.P11, the Secretary of the Panchayat had ordered that

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WP(C) NO. 4924 OF 2021

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since the land is described as Nanja, the permission of the Revenue Divisional Officer is also required for consideration of the request made. Later by Ext.P13 (Ext.R2(a)), the Secretary of the Panchayat ordered that the application does not conform with the Kerala Panchayat Building Rules, 2019 and details of the area where it does not conform with the Rules is stated.

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The counsel for the petitioner submits that the Secretary does not have the power to direct the petitioner to submit the application in accordance with the 2019 Rules since the specific case is that the construction was completed prior to 31.07.2017 and that 2018 Rules alone will apply. The counsel referred to Rules 3 & 6 of the 2018 Rules along with Rule 2(k) which defines what are unauthorized constructions. Going by 2(k) of the Rules, the Rule will apply only in case of such unauthorized constructions on which the Secretary does not have power to grant regularization. Since the case of the petitioner is one in which the Secretary does not have the power, it is submitted that the procedure laid down in Rule 6 has to be followed. Going by Rule 6, it is submitted that the only power that the Secretary has is to see whether the application is in order

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WP(C) NO. 4924 OF 2021

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and if it is found to be in order, forward the same to the Town Planner. The counsel for the respondent Panchayat submits that going by Rule 3(2)(e), the application should be accompanied with proof of completion on or before 31.07.2017 and Rule 3(2)(j) would require the applicant to submit proof of ha ving stopped the con struction before 31.07.2017 on account of any communication from the Grama Panchayat or from the Government directing to stop the unauthorized construction.

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Having heard the counsel on both sides, I find that Ext.P13 is not in accordance with the Rules. If the Secretary is of the opinion that no proof regarding construction of the building prior to the cut off date has been produced, it is open to the Secretary under Rule 3(3) to return the application stating that the same cannot be accepted since it is incomplete. The Rule does not contemplate the Secretary to direct the petitioner to submit the application under a different Rule.

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In the above circumstances, Ext.P13 is set aside. The 2^nd respondent is directed to reconsider Exts.P10 & P12 applications submitted by the petitioner in accordance with law keeping in mind

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WP(C) NO. 4924 OF 2021

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Rules 3 & 6 of the Kerala Panchayat Building (Regularization of Unauthorized Constructions) Rules, 2018. Necessary orders shall be passed within six weeks from the date of receipt of a copy of this judgment. It is made clear that this Court is neither making any observation regarding the merits of the claim made by the petitioner for regularization nor is this Court stating any opinion on the claim of the petitioner regarding Section 27A of the Conservation of Paddy Land and Wet Land Act.

Sd/-

T.R.RAVI JUDGE

WP(C) NO. 4924 OF 2021

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APPENDIX OF WP(C) 4924/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE TAX RECEIPT DATED 21.08.2020
EXHIBIT P2	TRUE COPY OF POSSESSION CERTIFICATE DATED 28-11-2019
EXHIBIT P3	TRUE COPY OF THE PROVISIONAL AFFILIATION DATED 8.7.2004 ISSUED BY THE CBSE.
EXHIBIT P3(A)	TRUE COPY OF THE UPGRADATION CERTIFICATE DATED 25.5.2011 ISSUED BY THE CBSE
EXHIBIT P4	TRUE COPY OF THE PROCEEDINGS NO.A2/ 461/2014-15 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P5	PRESENT PHOTOGRAPHS OF THE BUILDING
EXHIBIT P5(A)	TRUE COPY OF THE SURVEY SKETCH SHOWING THE EXISTING CONSTRUCTION WITHIN THE ENTIRE EXTENT OF PROPERTY
EXHIBIT P6	TRUE COPY OF THE ORDER NO. 3334/19 DATED 25-11-2019 ISSUED BY THE 2ND RESPONDENT DIRECTING THE PETITIONER TO SUBMIT A FRESH APPLICATION
EXHIBIT P7	TRUE COPY OF THE CERTIFICATE ISSUED BY THE 5TH RESPONDENT, ASSISTANT ENGINEER OF THE 2ND RESPONDENT DATED 04-03-2020
EXHIBIT P8	TRUE COPY OF THE PUBLISHED DATABANK PREPARED AND MAINTAINED BY THE 4TH RESPONDENT

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WP(C) NO. 4924 OF 2021

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EXHIBIT P9	TRUE COPY OF THE FORM 7 APPLICATION DATED 11-09-2020 FILED BEFORE THE 6TH RESPONDENT
EXHIBIT P10	TRUE COPY OF THE RECEIPT OF THE REGULARIZATION APPLICATION ALONG WITH THE ACKNOWLEDGMENT DATED 29-1-2021
EXHIBIT P11	TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 9-2-2021
EXHIBIT P12	TRUE COPY OF THE FORM I-A REGULARIZATION APPLICATION DATED 20.11.2019 CORRESPONDING TO THE EXT.P10.
EXHIBIT P13	TRUE COPY OF THE NOTICE DATED 12.3.2021 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P14	TRUE COPY OF G.O.(P) NO.13/2021/LSGD DATED 2.2.2021.
EXHIBIT P15	TRUE COPY OF THE CERTIFICATE AND DECLARATION SUBMITTED BY THE CONSULTING ENGINEER, MULLASERY STATING THAT THE CONSTRUCTIONS WERE CARRIED OUT BEFORE 31ST JULY, 2017
EXHIBIT P16	TRUE COPY OF THE SCREENSHOT SHOWING GOOGLE EARTH IMAGE OF THE PETITIONER'S SCHOOL ON 08.01.2004
EXHIBIT P16(A)	TRUE COPY OF THE SCREENSHOT SHOWING GOOGLE EARTH IMAGE OF THE PETITIONER'S SCHOOL ON 21.12.2013
EXHIBIT P16(B)	TRUE COPY OF THE SCREENSHOT SHOWING GOOGLE EARTH IMAGE OF THE PETITIONER'S SCHOOL ON 07.02.2016

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WP(C) NO. 4924 OF 2021

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EXHIBIT	P16(C)	TRUE COPY OF THE SCREENSHOT SHOWING GOOGLE EARTH IMAGE OF THE PETITIONER'S SCHOOL ON 17.01.2017
EXHIBIT	P16(D)	TRUE COPY OF THE SCREENSHOT SHOWING GOOGLE EARTH IMAGE OF THE PETITIONER'S SCHOOL ON 17.06.2021
EXHIBIT	P17	PHOTOGRAPHS SHOWING THE NEWLY CONSTRUCTED BUILDING TAKEN DURING INAUGURATION ON 03.01.2017
EXHIBIT	P17(A)	INVITATION FOR THE INAUGURATION OF THE NEWLY CONSTRUCTED SILVER JUBILEE BLOCK
RESPONDE	NTS'EXHI	BITS
EXHIBIT	R2(a)	TRUE COPY OF THE LETTER DATED 12/03/2021 BEARING NO.A6-307/21 BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT	R2(b)	TRUE COPY OF THE LETTER DATED 07/03/2021 FROM THE PETITIONER TO THE RESPONDENT.
EXHIBIT	R2(B)	TRUE COPY OF THE CERTIFICATE DATED 06.10.2017 ISSUED BY THE SENIOR SUPERINTENDENT-IN-CHARGE OF REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS
EXHIBIT	R2(C)	TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT/REGULARISATION DATED 12.11.2019 SUBMITTED BY THE PETITIONER

Hidayath Charitable Trust, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Hidayath Charitable Trust, v. State of Kerala

Case brief

What is this about?

What did the court decide?

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