IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 4230 of 2007(C) ------------------------- PETITIONER(S): ----------------- RAJEEVAN, VELLOORKIZHAKKETHIL, PUTHIYACAVU MURI, MAVELIKKARA. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENT(S): ------------------- 1. STATE OF KERALA REP.BY SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 3. THE MAVELIKKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, MAVELIKKARA. 4. THE SECRETARY, MAVELIKKARA MUNICIPALITY, MAVELIKKARA. 5. JANARDHANAN, VELLOORKIZHAKKETHIL, PUTHIYAKAVU, MAVELIKKARA. ADV. SRI.R.RANJITH FOR R3 & 4 SRI.K.SURENDRA MOHAN FOR R5 SRI.K.HARILAL,SC,MAVELIKARA MUNICIPALIT FOR R3 & 4 GOVT.PLEADER SRI.SANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.4230/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A TRUE COPY OF ORDER NO.BA NO.221/02-03 DT 7.10.2003. EXT.P2: A TRUE COPY OF WRITTEN STATEMENT FILED BY THE 5TH RESPONDENT. EXT.P3: A TRUE COPY OF WRITTEN STATEMENT DT 25.2.2004 FILED BY THE 3RD RESPONDENT. EXT.P4: A TREU COPY OF REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF'S COURT, MAVELIKKARA. EXT.P5: A TRUE COPY OF ORDER NO.15632/E1/04/LSGDEP. DT 11.5.2006 OF THE 1ST RESPONDENT. EXT.P6: A TRUE COPY OF PETITION FILED BY THE PETITIOENR BEFORE THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 4230 OF 2007 (C) ===================== Dated this the 6th day of October, 2009 J U D G M E N T Although notice has been served, there is no appearance on behalf of the 5th respondent. 2. The case of the petitioner is that the 5th respondent had obtained a building plan approved by the 3rd respondent Municipality. But however, he proceeded to undertake construction in violation of the conditions of building permit. It is stated that this was complained to the Municipality which issued a provisional order under Section 406 of the Kerala Municipalities Act. The explanation made by the 5th respondent was not satisfactory to the Municipality and therefore Municipality confirmed the provisional order as per Ext.P1. 3. The 5th respondent did not challenge Ext.P1 and therefore Ext.P1 order has become final and binding on him. He did not comply with the said order, but however, it would appear that on a representation made by him, the Chief Town Planner made Ext.P5(2) recommendation dated 3/3/2006 to the Government stating that it was only on account of a realignment WPC 4230/07 :2 : of the boundaries of the property that the prescribed set back could not be fully complied with. It was stated that if the building has been constructed in compliance with the building permit in all other respects, the Secretary could regularize the construction. 4. Acting upon the recommendation of the Chief Town Planner as above, the Government issued Ext.P5 order dated 11/5/2006 requiring the 4th respondent that if the construction is in compliance with the building permit in all other respects, the building constructed could be regularized. The recommendation made by the Chief Town Planner also discloses that the construction of the building was completed on 14/2/2003. As a result of Ext.P5 order of the Government mentioned above, further action on Ext.P1 was not taken and it is in these circumstances this writ petition has been filed by the petitioner. 5. The only issue that arises for consideration is the validity of Ext.P5 and the recommendation made by the Chief Town Planner, which is also enclosed to the same. The recommendation of the Chief Town Planner is on the basis that the construction of the building was completed on 14/2/2003. He also accepts the fact that the set back on the northern side is not WPC 4230/07 :3 : in compliance with the conditions of the building permit. However, he says that if the construction is in compliance with the building permit in all other respects, the construction could be regularized in terms of Section 406 of the Kerala Municipalities Act, 1994. It is acting upon the said recommendation of the Chief Town Planner that Ext.P5 order has been issued by the Government. 6. The relevant provision of the Municipalities Act providing for regularization of construction is Section 407. A reading of the said section shows that the power under Section 407 can be invoked only in respect of any building constructed on or before 15th of October 1999. The provisions of the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 also defines unauthorised construction as constructions carried out and completed before 15th of October 1999. The statute thus having fixed a cut off date viz., 15th of October 1999, unless the construction of the building in question has been completed before that date, there is no question of any regularization as recommended by the Chief Town Planner. 7. In this case, even going by the recommendation of the WPC 4230/07 :4 : Chief Town Planner, construction of the building was completed only on 14/2/2003. If that be the factual position, there does not arise any question of regularisation. If so, Ext.P5 is directly against the provisions of Section 407 of the Kerala Municipalities Act, 1994 and the Rules mentioned above. Therefore, Ext.P5 will stand set aside and the writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp