IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 6TH DAY OF JANUARY 2011/16TH PAUSHA 1932 WP(C).No. 28084 of 2003 (R) --------------------------- PETITIONER(S): ------------------------- RADHAMMA PILLAI, RAJASREE, PERUNNA PO, CHANGANASSERY. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT (E) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. CHANGANASSERY MUNICIPALITY, MUNICIPAL OFFICE, CHANGANASSERY, REPRESENTED BY ITS SECRETARY. 4. M.R.SREEDEVI AMMA, W/O.K.RAMACHANDRA PANIKER, NILAKKATHANAM HOUSE, EARA NORTH, NEELAMPEROOR PO. R3 BY ADV. SRI.SIBY MATHEW BY ADV. SRI.A.A.MOHAMMED NAZIR BY ADV. SRI.JOHNSON ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28084/2003 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SANCTION LETTER NO.BA/429/96-97 DATED 10/03/1997 ISSUED BY THE 3RD RESPONDENT. P2: COPY OF THE SHOW CAUSE NOTICE NO.BA 429/96-97 DATED 17/11/1998 BY THE 3RD RESPONDENT. P3: COPY OF THE ORDER BA 429/96-97 DATED 10/12/1998 ISSUED BY THE 3RD RESPONDENT. P4: COPY OF THE ORDER NO.9008/E3/99/LAD DATED 8/3/1999 ISSUED BY THE 1ST RESPONDENT. P5: COPY OF THE G.O.(RT) 2623/2003 LSGD DATED 16/07/2003 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 28084 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of January, 2011 J U D G M E N T The 4th respondent in this writ petition is the owner of six cents of land comprised in survey No.104/6 and 104/7 of Changanassery Village covered by Sale deed No.2035/1996 of Changanassery Sub Registry. She was granted sanction to construct a residential building in her property as per Ext.P1. The petitioner who is the owner in possession of the adjoining property of the 4th respondent made a complaint before the 3rd respondent regarding the construction in violation of Ext.P1 by the 4th respondent. Thereupon, Ext.P2 show cause notice was issued by the 3rd respondent under section 395 of the Kerala Municipality Act, 1994. The 4th respondent had shown cause in response to Ext.P2. Later, considering the said reply the 3rd respondent passed a final order confirming Ext.P2. As per Ext.P3 the temporary stay for further construction made as per Ext.P2 was made absolute and the 4th respondent was directed to demolish the unauthorized construction within seven days. Feeling aggrieved and WPC.28084/2003 : 2 : dissatisfied with Ext.P3 order, the 4th respondent preferred an appeal. Ext.P4 order of stay was granted in the appeal. However, after a detailed consideration of the appeal preferred by the 4th respondent, it was dismissed, it is contended. Off late the 4th respondent approached the first respondent seeking regularization of the construction in terms of the provisions under the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 (For short 'the Rules'). After considering the application for regularization of unlawful construction in terms of the provisions under the Rules Ext.P5 order was passed by the Government. In fact, as per Ext.P5, what was ordered is to realise the regularization fee and on receipt of the chalan to absolve the applicant of the liabilities subject to the result of O.P.No.6615 of 2000 and to regularise the unlawful construction, accordingly. It is challenging the order for regularizing the unlawful construction effected by the 4th respondent as per Ext.P5 that this writ petition has been filed. 2. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the 3rd respondent as also the learned Government Pleader. WPC.28084/2003 : 3 : 3. Admittedly, the construction in question was effected prior to 15.10.1999. As per Rule 2(1)d of the Rules unauthorized construction means any construction carried out and completed before 15th day of October 1999. The said provision reads thus:- “2.(1)(d) “unauthorised construction” means any construction or reconstruction carried out and completed before 15th day of October 1999. (i) which the Secretary has no power to regularize under Section 406 of the Kerala Municipality Act, 1994 or Section 235 W of the Kerala Panchayat Raj Act, 1994; and (ii)deviating from the approved plan and in violation of the provisions of the Act or the Building Rules made thereunder, or (iii) without obtaining permit and in violation of the provisions of th Act or the Building Rules made thereunder; or (iv) deviating from the exemption order issued by the Government or violating any condition from such order;” Rule 3 thereunder provides for submission of an application for regularization of unauthorized construction. The requisite fee is prescribed under Rule 5. The procedure for disposal of such an application made in terms of Rule 3 is also prescribed WPC.28084/2003 : 4 : under the Rules. It is true that the petitioner raises a challenge against the rules as a whole and seeks for declaring the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 as arbitrary and ultra vires the Kerala Municipality Act, 1994 and the Constitution of India. Prayer Nos.(i) and (ii) read thus:- (i) to declare that the Kerala Building (Regularisation of Unauthorised construction and Land Development) Rules 1999 is arbitrary and ultravires Kerala Municipality Act, 1994 and the Constitution of India; (ii) to declare that the Section 407 of Kerala Municipality Act, 1994 and Sections 254 and 235 AB of the Kerala Panchayat Raj Act are arbitrary and ultravires the Constitution of India.” After carefully considering the grounds raised in the writ petition I am of the view that no grounds have been made out by the petitioner to hold that the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 ultra vires the Kerala Municipality Act, 1994 and the Constitution of India. Evidently, section 407 of the Kerala Municipality Act, 1994 empowers the WPC.28084/2003 : 5 : Government to regularize unauthorized construction carried out. In view of the said fact it cannot be held that the provisions under the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 ultra vires the Kerala Municipality Act, 1994. It is also to be noted that the petitioner is not challenging the validity of any specific rules under the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 whilst it is a challenge against the said Rules as a whole. When once an enabling provision is there in the Act, in the absence of specific, legally sustainable grounds there is no need to go further into the challenge against the Rules. A vague averment, as has been made in this writ petition, certainly cannot be a reason for looking into the validity of the said Rules. It be so, the contention of the petitioners are bereft of any basis. True that the petitioner also seeks for a declaration that section 407 of the Kerala Municipality Act, 1994 and sections 254 and 235-AB of the Kerala Panchayat Raj Act are arbitrary and ultra vires the Constitution of India. Apart from contending that the aforesaid sections of the above mentioned Acts are violative of the Constitution of India no WPC.28084/2003 : 6 : grounds which are available for legally challenging an enactment as a whole or any of its provisions, have been made out by the petitioner. It appears that it is not a well thought out challenge whilst made only to strengthen the challenge against Ext.P5. Ext.P5 order was passed by the Government in accordance with the provisions under the Rules and the construction so regularized was carried out and completed before 15th day of October, 1999. Therefore, I do not find any reason for interfering with Ext.P5. A perusal of the contention raised in this writ petition would reveal that the petitioner did not have a case that the construction in question was one carried out and completed after 15.10.1999. I am of the view that in the absence of any such contention, the action on the part of the first respondent in passing Ext.P5 order subject to the result of OP No.6615/2000 calls for no interference. For all these reasons, I am of the view that this writ petition is bereft of any basis and accordingly, it is dismissed. Sd/- (C.T. RAVIKUMAR, JUDGE) jma