IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 WP(C).No. 26776 of 2003(K) --------------------------------------- PETITIONER: ------------------- S.K.MOHAN, S/O. S.T.KURIAN, AGED 58, BUILDING NO.XL/2130, B7, 1106, PIONEER TOWERS, SHANMUGHAM ROAD, ERNAKULAM. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: ----------------------- 1. CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, KOCHI-11. 2. THE SECRETARY, CORPORATION OF KOCHI, COCHIN-11. 3. SATISH MITTAL, MANAGING DIRECTOR,PIONEER SHOPPING COMPLEX PVT.LTD MARINE DRIVE, ERNAKULAM. 4. MITESH PATTEL, PIONEER SHOPPING COMPLEX PVT. LTD., MARINE DRIVE, ERNAKULAM. ADDL. 5TH RESPONDENT IMPLEADED. 5. STATE OF KERALA REP.BY ITS SECRETARY, LOCAL ADMINISTRATION (M) DEPT., GOVT. SECRETARIAT, TRIVANDRUM. ADDL. 5TH RESPONDENT IMPLEADED AS PER ORDER DT.13.11.2003 IN IA. NO.14131/2003 IN WP.C NO.26776/2003. BY ADV. SRI.PREMJIT NAGENDRAN - R4 SRI.P.RADHAKRISHNAN (1) - R3 SRI.MADHU RADHAKRISHNAN - R3 SRI.K.S.ANIL KUMAR (VAIKOM) - R3 SRI.K.ANAND - R1,R2 GOVERNMENT PLEADER SRI.K.V.MANOJKUMAR BY SC FOR R1- SRI.S.RAMESH BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2008, ALONG WITH WPC NO. 10847 OF 2006 WPC NO. 20527 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 26776/2003 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PROVISIONAL ORDER MOP 1-18/98 (W) DT. 5.8.1998 ISSUED BY IST RESPONDENT. EXT.P2:- COPY OF THE ORDER DT. 29.9.1998. EXT.P3:- COPY OF THE ORDER G.O.(RT) NO.1077/2000/LSGD DT. 10.3.2000. EXT.P4:- COPY OF THE ORDER CMP. NO. 3156/99 IN OP. NO.22636/98 DT. 13.4.99. EXT.P5:- COPY OF THE JUDGMENT IN OP. NO.22636/98 OF HIGH COURT OF KERALA. EXT.P6:- COPY OF THE REPRESENTATION DT. 17.8.2002 TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS EXT.R1(a):- COPY OF THE LETTER DT. 4.4.2003 SENT BY IST RESPONDENT TO THE GOVERNMENT. EXT.R4(a):- COPY OF THE JUDGMENT IN OP. NO.25192/02 DT. 16TH SEPTEMBER, 2002 ISSUED BY THIS HONOURABLE HIGH COURT OF KERALA. /TRUE COPY/ P.A. TO JUDGE tss ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NOs.26776/2003,10847/2006 &20527/2006 ----------------------------------------------------------------- Dated this the 10th day of June, 2008 JUDGMENT The controversy in these writ petitions is in relation to an alleged unauthorised construction made by the petitioner in WP(c).No.10847/2006. The facts of the case are as follows. 2. The common petitioner in W.P.(c).Nos.26776/2003 and 20527/2006, Sri. S.K. Mohanan is the 3rd respondent in W.P(c).No.10847/2006 and he is a resident of flat Number 1106 on the 12th floor of the multistoried building, viz. Pioneer Towers, Marine Drive, Ernakulam. The petitioner in W.P.(c).No.10847/2006, Sri. Mitesh K. Patel, is the common respondent in other cases and is also a resident of flat No.1105 on the 12th floor of the same building. 3. According to the petitioner in W.P(c). Nos.26776/2003 &20527/2006, the residents of the 12th W.P(c).Nos.26776/03 & conn. 2 floor, the top most floor of the building, did not have any opening to the roof portion of the building. It is alleged that the petitioner in W.P.(c).No.10847/2006 made an opening through the concrete roof of the building (which according to Sri. Mitesh K. Patel, was through a glass portion) and constructed a staircase connecting the opening. It is stated that on the roof, a room with water connection was also constructed. On coming to the know of the same, the petitioner in WP(c).Nos.26776/2003 and 20527/2006, Sri.S.K. Mohanan complained to the Secretary of the Corporation and after enquiries, a provisional order under Section 406(1) of the Muncipalities Act was issued and thereafter a final order under Section 406(3) was issued confirming the provisional order. This order is Ext.P1 in WP (c).No.20527/2006 filed by sri. S.K. Mohanan. 4. Against Ext.P1 final order issued under Section 406 (3) of the Muncipalities Act, the petitioner in W.P.(c). No.10847/2006, Sri. Mitesh K. Patel, filed an appeal to the Corporation and that was rejected by order dated 10.3.2000 (Ext.P2 in WP(c).No.20527/2006). In the meanwhile, the petitioner in W.P(c).No.20527/2006, filed a W.P(c).Nos.26776/03 & conn. 3 writ petition before this court as O.P.No.22636/98 for implementing Ext.P1. That writ petition was finally disposed of by judgment dated 23.01.2002 directing implementation of Ext.P1 final order. It is submitted that, even thereafter consequential action was not taken and seeking implementation of Ext.P1, for the second time, and for other reliefs he has filed WP(c).No.26776/2003. 5. During the pendency of that writ petition, the petitioner in WP(c).No.10847/2006 filed an application for regularisation of the construction, in respect of which Ext.P1 order was issued. Such application was made to the Government and as orders were not passed he filed a writ petition before this court as O.P.No.25192/2002 praying for a direction for an expeditious consideration of his application for regularisation. That Original Petition was disposed of by judgment dated 16.9.2002, directing consideration of the application for regularisation and also ordering stay of demolition in the meanwhile. 6. It is stated that in pursuance to the above judgment, Government heard all the parties and issued Ext.P5 order rejecting the application for regularisation. Seeking review W.P(c).Nos.26776/03 & conn. 4 of the said order, invoking the power of the Government under Rule 7 of the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999,(here-in-after referred to as the Rules) the petitioner in WP(c).No.10847/2006 filed a review petition. That was rejected by the Government without hearing any one of the parties. The order rejecting the review petition was challenged by the petitioner by filing WP(c).No.12747/2005. By judgment dated 22.6.2005, that writ petition was disposed of quashing the order rejecting the review petition and directing its reconsideration with notice to all concerned. 7. In pursuance to the aforesaid judgment, the matter was reconsidered by the Government and by Ext.P7 in WP (c).No.20527/2006, the review was allowed subject conditions, the first of which being relevant, is as follows. “(a). consent from the owner of the neighbouring property (i.e. Sri. S.K. Mohan) should be obtained and produced before the Secretary of the local body. 8. It is challenging Ext.P7, WP(c).No.20527/2006 has W.P(c).Nos.26776/03 & conn. 5 been filed by Sri. S.K.Mohanan and Sri. Mitesh K. Patel, the petitioner in WP(c).No.10847/2006 in whose favour it is issued has filed the writ petition challenging the above condition imposed in Ext.P7. The prayer in WP(c). No.20527/2006 is for an order directing implementation of Ext.P1 and the fate of this writ petition will depend upon the out come of the other two writ petitions. 9. I have heard the submission made by Sri. S. Sreekumar, the counsel for the petitioner in W.P(c). Nos.26776/2003 & 20527/2006 and Sri. Premjit Nagendran, counsel for the petitioner in W.P(c).No.10847/2006, whose clients are the party respondents in the two writ petitions. Standing Counsel for the Corporation and the Government Pleader were also heard. 10. The main contention that was urged by Sri.S. Sreekumar is that, by the unauthorised construction that has been made by the petitioner in WP(c).No.10847/2006, he has violated the Marine Drive scheme. It is also contended that, there cannot be regularisation of any construction which is made in violation of the town planning scheme. It was also argued that Ext.P7 in WP(C). W.P(c).Nos.26776/03 & conn. 6 No.20527/2006 was passed without notice to the petitioner and therefore, the said order is vitiated for violation of the principles of natural justice.All these contentions are controverted by the counsel for the respondents. 11. As far as the case of scheme violation is concerned, this aspect of the matter has been dealt with in detail, in Ext.P7 order rendered by the Government. It is stated that, when the matter was heard, the contention regarding violation of the scheme was raised and that the Town Planning Officer, had confirmed that the petitioner in WP (c).No.10847/2006 has violated the scheme. However, it is seen that the Town Planning Officer has pointed out that, the violations are not serious in nature and therefore the construction made could be regularised conditionally. It was acting upon this recommendation made by the Town Planning Officer, that in Ext.P7, the Government have held that the construction can be regularised on payment of the compounding fee. 12. As far as the Rules, that are relied on by the learned counsel for the petitioner in WP(c).Nos.20527/2006 and 26776/2003 are concerned, it is mainly of the Rule 5 of W.P(c).Nos.26776/03 & conn. 7 the Rules. Rule 5 deals with the procedure for disposal of an application for regularisation of the unauthorised construction and land development. The sub Rule (3) relied on by the counsel says that, on receipt of an application, the Secretary shall note the extent of violation of any provision in the Building Rules and the Town Planning Scheme, if any, in the report. The compounding fee as in table-I which is to be remitted, in case regularisation is allowed, also has to be noted in the report. Sub rule (7) says that no unauthorised construction shall be regularised if the construction so carried out affects adversely the proposals of any sanctioned General Town Planning Scheme(Master Plan) or Detailed Town Planning scheme in the area or if the construction grossly violates any safety provisions in the Building Rules for the time being in force or any safety conditions specified in the exemption order or permit. Counsel argued that, in view of Sub rule (7), if there is anything violating the Scheme, then regularisation cannot be granted. 13. A combined reading of sub rule (3) and (7) of Rule 5 reveals that, even if there is violation of the Town W.P(c).Nos.26776/03 & conn. 8 Planning Scheme, still an application for regularisation has to be processed by the Secretary as provided in Sub rule (3). Such construction can also be regularised, provided the unauthorised construction made does not adversely affect the proposal of any sanctioned General Town Planning Scheme or Detailed Town Planning Scheme. It is not that, in all cases, where there is any minor violation of Scheme, the Government is devided of its power of regularisation. 14. In this case, as already noticed, the Town Planning Officer has opined that the construction can be regularized, since the violations are not serious in nature. This was because the unauthorised construction made by the petitioner in W.P.(c).No.10847/2006 was not one adversely affecting the Scheme. In such circumstances, the first respondent was perfectly justified in ordering regularization subject to the payment of compounding fee as prescribed in the Rules. Therefore, I do not find any thing illegal in Ext.P7 warranting interference. 15. Next is the complaint of Sri. C.K. Mohanan, the petitioner in WP(c).No.26776/2003 and 20527/2006 that Ext.P7 was issued without notice to him. It is stated in W.P(c).Nos.26776/03 & conn. 9 Ext.P7 order that, notice was issued to him on two occasions and those notices were returned to the Government by the postal authorities undelivered. It has come out during the course of arguments that the petitioner in WP(c).Nos.26776/2003 and 20527/2006 is a non- resident Indian and that most of the time he is out of India. If that be so, there is nothing unnatural, if the notice was returned undelivered and the Government cannot be faulted of having violated natural justice. In this context, it needs to be mentioned that, notice issued by this court in WP(c). No.10847/2006 was also remaining unserved on him until now and at the time when these case were taken up for hearing, the learned counsel has accepted notice on his behalf. From Ext.P7, since it is evident that, notice was repeatedly sent and as it was undelivered, I am not able to find that the Government has violated the principles of natural justice in passing Ext.P7 order, without hearing the petitioner in WP(c).No.20527/2006 and 26776/2003. Therefore, the contentions raised by the learned counsel for the petitioner in these two cases are only to be rejected and I do so. W.P(c).Nos.26776/03 & conn. 10 16. Coming to the grievance of Sri. Mitesh K. Patel, the petitioner in WP(c).No.10847/2006, is concerned, as already noticed, it is confined to condition No.1 in Ext.P7. Condition No.1 in Ext.P7 requires him to obtain sanction of the owner of the neighbouring property viz the petitioner in WP(c).Nos.26776/2003 & 20527/2006 and produce the same before the Secretary of the Corporation. In view of the fact that these two parties are at loggerheads and are fighting for years and even now there is no sign of any compromise, I am of the view that, this is a condition incapable of compliance. Further, for exercising the power of regularisation conferred on the Government, it is not a statutory requirement that the consent of the complainant should be obtained. If condition No.1 is insisted, the petitioner in WP(c)No.10847/2006 will be deprived of the benefit of Ext.P7 order and that shall not be. Even otherwise, for the implementation of the other conditions, retension of the Ist condition is unnecessary. Therefore, condition No.1 in Ext.P7 is liable to be quashed and I do so. 17. I also record the submission of the learned counsel for the petitioner in WP(c).No.10847/2006 that, in W.P(c).Nos.26776/03 & conn. 11 case there is any leakage consequent on the construction that he has made, he will rectify the same at his cost. Therefore I direct that, in case there is leakage consequent on the construction that was made by the petitioner in WP (c).No.10847/2006, the petitioner in the other two cases shall be at liberty to point out the same to the Secretary of the Corporation and the petitioner in WP(c).No.10847/2006 shall specify the same as and when he is intimated of it by the Secretary. 18. In the result WP(c).No.20527/2006 is dismissed and WP(c).No.10847/2006 is allowed. In so far as WP(c).No.26776/2003 is concerned, now that I have upheld Ext.P7 order there is no question of implementing Ext.P1 order issued under Section 406 of the Muncipalities Act. Consequently, this writ petition will also stand dismissed. ANTONY DOMINIC vi JUDGE W.P(c).Nos.26776/03 & conn. 12