Remanded

S. Saseendran Pillai v. State of Kerala

Kerala HC8 Mar 2023WP(C)/1438/2023

Case brief

AI extract

What is this about?

The court examined a petition challenging a communication rejecting a building regularisation application due to a minor deficiency in open space. The bench held that the Secretary should reconsider the matter allowing for a statutory 5% tolerance and considering Indian Road Congress standards.

What did the court decide?

The 3rd respondent shall reconsider the regularisation application allowing for a 5% tolerance and hear the petitioner within one month.

S. Saseendran Pillai Vs State of Kerala — Writ and Judicial Review | Kerala HC (2023)

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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 VIJU ABRAHAM

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WEDNESDAY, THE 8^TH DAY OF MARCH 2023 / 17TH PHALGUNA, 1944

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WP(C) NO. 1438 OF 2023

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PETITIONER:

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S. SASEENDRAN PILLAI AGED 60 YEARS SREE RAMA VILASAM, KALLUVATHUKKAL P.O., KOLLAM, PIN - 691578 BY ADVS. SREEHARI R HAMZA A.V.(K/1588/2022)

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 KALLUVATHUKKAL GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KALLUVATHUKKAL P.O., KOLLAM, PIN - 691578 3 THE SECRETARY KALLUVATHUKKAL GRAMA PANCHAYAT, KALLUVATHUKKAL P.O., KOLLAM, PIN - 691578 4 ADDL.R4: THE PROJECT DIRECTOR NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, PALKULANGARA, THIRUVANANTHAPURAM -695024 ADDL.R4 IS IMPLEADED AS PER ORDER DATED 20.01.2023 IN IA 1/2023 IN WPC NO. 1438/2023. BY ADVS.Sasith M R P.MOHANDAS (ERNAKULAM)

LIJO JOSEPH GEORGE

OTHER PRESENT:

GP - RIYAL DEVASSY

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). No.1438 of 2023

: 2 :

VIJU ABRAHAM, J.

W.P.(C). No.1438 of 2023

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- - - - Dated this the 8^th day of March, 2023

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JUDGMENT

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The petitioner has approached this Court challenging Ext.P8 communication issued by the 3^rd respondent and also for a direction to the 3^rd respondent to accept Ext.P6 application for regularisation along with Ext.P7 sketch and to take a decision on the same in the light of Ext.P10 standard prescribed by the Indian Road Congress.

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The petitioner and his wife are in ownership and possession of 46.28 ares of land in Kalluvathukkal Village, Kalluvathukkal Taluk in Kollam District. The petitioner constructed an auditorium in the said property and it was facing the National Highway 47. The said auditorium was given on rent for ceremonial functions, marriages etc. While so, for the widening of the National Highway, the front portion of the petitioner's property was acquired. An extent of 2.34 ares of property was acquired out of the total extent of 46.28 ares. Even after acquiring the property for widening of the National Highway, there is enough space in front of the auditorium for parking vehicles and other

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W.P.(C). No.1438 of 2023 : 3 :

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amenities. The petitioner constructed a lift room in front of the auditorium and thereafter he submitted Ext.P6 application for regularisation along with Ext.P7 plan. The same was returned back as per Ext.P8 communication, stating that the revised plan should be submitted in conformity with Rule 26 of the Kerala Panchayat Building Rules. The petitioner relying on Ext.P10 relevant pages of the publication by the Indian Road Congress submitted that if the front portion of the property is acquired for widening of National Highway, the distance to be maintained from the road margin is as provided by the Indian Road Congress. The petitioner also relies on the Division Bench judgment of this Court in Travancore Devaswom Board v. Union of India [2023(1) KHC 557] in which it is held that the directions in Ext.P10 shall also give due weightage while considering the application.

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Heard the learned counsel for the petitioner and the learned counsel for the respondents.

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It is seen that in Ext.P7 plan appended to the application, 7.45 metres is left in the front portion of the building abutting the national highway, whereas the rules mandates that a minimum distance of 7.5 metres has to be left.

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The proviso to Rule 20(3) of the Kerala Panchayat Building

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W.P.(C). No.1438 of 2023

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: 4 :

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Rules reads as follows:

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xxxx

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xxxxx

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xxxxx 3. xxxxx

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Provided that, in case there is deficiency as per provisions of these Rules, in minimum width of mandatory open space/yard after completion of the construction, other than the distance stipulated as per section 220(b) of the Kerala Panchayat Raj Act, 1994 (13 of 1994) and subrule 5 of rule 81 of these rules, the Secretary may allow a tolerance up to 5% of the minimum mandatory open space/yard to be provided as per these rules or twenty five centimeters, whichever is less, for the building constructed:

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The above quoted provision empowers the Secretary to allow a tolerance to a certain extent mentioned therein. Therefore, I am of the opinion that the matter has to be reconsidered by the 3^rd respondent in the light of the proviso to Rule 20(3) and other relevant provisions of the Kerala Panchayat Building Rules and Ext.P10 produced in the writ petition. The petitioner shall be free to submit a written argument note before the 3^rd respondent detailing all these and the 3^rd respondent shall reconsider the matter in accordance with law, specifically taking into consideration, the power of the 3^rd respondent as provided in the

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W.P.(C). No.1438 of 2023

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: 5 :

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proviso to Rule 20(3) of the Kerala Panchayat Building Rules and Ext.P10 document. A decision in this regard shall be taken within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner.

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The learned Standing Counsel for the additional 4^th respondent submitted that their power under Section 28 of the Control of National Highways (Land and Traffic) Act, 2002 shall not be affected. It is made clear that the directions issued by this Court as above for reconsideration of Ext.P6 application seeking regularisation submitted by the petitioner, will not affect any rights of the additional 4^th respondent in this regard.

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Sd/-

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VIJU ABRAHAM JUDGE

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sm/

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W.P.(C). No.1438 of 2023

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: 6 :

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APPENDIX OF WP(C) 1438/2023

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PETITIONER EXHI	BITS
Exhibit-P1	TRUE COPY OF THE AWARD DATED 10-02-2022 IN AWARD NO. KVKL 0136 ISSUED BY THE SPECIAL DEPUTY COLLECTOR (LA) NH & COMPETENT AUTHORITY, KOLLAM
Exhibit-P2	TRUE COPY OF THE AWARD DATED 10-02-2022 IN AWARD NO. KVKL 0137
Exhibit-P3	TRUE COPY OF THE AWARD PASSED BY THE COMPETENT AUTHORITY, KOLLAM DATED 10-02- 2022 IN AWARD NO. KVKL 0138
Exhibit-P4	TRUE COPY OF THE AWARD DATED 10-02-2022 IN AWARD NO. KVKL 0139
Exhibit-P5	TRUE COPY OF THE LAST RECEIPT ISSUED BY THE 2ND RESPONDENT PANCHAYAT DATED 6-12- 2022
Exhibit-P6	TRUE COPY OF THE APPLICATION FOR REGULARIZATION SUBMITTED BY THE PETITIONER WITH REGISTRATION NO. 1718303 DATED 16-06-2022
Exhibit-P7	TRUE COPY OF THE SKETCH PRODUCED BY THE PETITIONER ALONG WITH EXT. P6 APPLICATION
Exhibit-P8	TRUE COPY OF THE COMMUNICATION GIVEN BY THE 3RD RESPONDENT NO. 400326/BRMCO2/GPO/2022/2809(1) DATED 7-7- 2022
Exhibit-P9	TRUE COPY OF THE RELEVANT PAGES OF THE KERALA PANCHAYAT BUILDING RULES PUBLISHED IN THE KERALA GAZETTE AS NOTIFICATION G.O.(P)NO. 78/2019/LSGD DATED 2-11-2019
Exhibit-P10	TRUE COPY OF THE RELEVANT PAGES OF THE GEOMETRIC DESIGN STANDARDS FOR RURAL (NON URBAN) HIGHWAYS PUBLISHED BY INDIAN ROAD CONGRESS AS I.R.C. NO. 73-1980

S. Saseendran Pillai v. State of Kerala

Case brief

What is this about?

What did the court decide?

S. Saseendran Pillai v. State of Kerala

Case brief

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