IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 25703 of 2005(I) -------------------------- PETITIONER: --------------- SHEELA.R. W/O.AJITH KUMAR, T.C. 14/1016(1) MALLOR NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. MR.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENTS: --------------- 1. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE TOWN PLANNING OFFICER, CORPORATION OF THIRUVANANTHAPURAM. 3. K.JAGAL PRASAD, S/O.V.K.PANICKER, PANICKERS, M.N.H.S. 5, MALLOOR NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM. 4. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. MR.N. NANDAKUMARA MENON, SC, TVM CORPRN. GOVERNMENT PLEADER MR. P. RAVEENDRA BABU ADV. MR.B.HARISHKUMAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).25703/05 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF COMPLAINT SUBMITTED BEFORE R1. EXT.P2:- TRUE COPY OF SHOW CAUSE NOTICE ISSUED TO R3 BY R1 EXT.P3:- TRUE COPY OF THE ORDER DT.27.1.05 PASSED BY R1. EXT.P4:- TRUE COPY OF THE ORDER DT.21.6.05 PASSED BY R4 IN APPEAL 60/05 RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge CR C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 25703 of 2005 ------------------------------ Dated this the 24th day of June, 2009 J U D G M E N T ---------------------- 1. This writ petition is filed challenging Ext.P4 order of the 4th respondent Tribunal, by which an appeal filed by the petitioner against Ext.P3 order of the 1st respondent Corporation is dismissed. The complaint of the petitioner is that construction made by the 3rd respondent on the neighbouring property is in deviation from the approved plan, based on which building permit was issued. There is no sufficient space left on the southern side of the 3rd respondent's building as required under the Kerala Muncipality Building Rules (hereinafter referred as Building Rules for short). The specific allegation is that the sunshade on the southern side of the 3rd respondent is constructed in such a manner that rain water will splash into the petitioner's building causing inconvenience to him. On the basis of Ext.P1 complaint in this regard, the 1st respondent initiated action as contemplated under Section 406 of the Kerala Muncipality Act 1994 (hereinafter referred as the Act for short) against the 3rd respondent and a provisional order along with a W.P.(C).25703/05 2 show cause notice was issued. Eventhough Ext.P2 is referred as the show cause notice, copy of Ext.P2 produced in the writ petition is not a notice issued to the 3rd respondent. 2. Ext.P3 is the order passed by the Secretary of the 1st respondent Corporation after hearing objections of the 3rd respondent. From Ext.P3 it is evident that a previous order issued in this regard was already set aside in Appeal No:34/04 of the 4th respondent and the matter was remanded for fresh consideration. The 1st respondent in Ext.P3 found that, the construction made by the 3rd respondent is not in accordance with the approved plan as much as the basement floor as shown in the plan is not constructed and instead of clearance shown on the southern side ranging from 110 cm to 100 cm the actual clearance provided is only ranging from 104 cm to 112 cm. Further on the back side also instead of 1 M to 2.60 M shown in the plan the clearance left is only 1.30 M to 2.20 M. Inspite of findings arrived about the irregularities, without pursuing any action as provided under S.406(3) of the Act, the 1st respondent arrived at a conclusion that construction can be regularised because the construction does not contravene any of the provisions and specifications contained in the Building Rules. Therefore the 3rd respondent was directed to submit application for regularisation along with fresh plan, after providing some W.P.(C).25703/05 3 measures on the southern sunshade in order to prevent falling of water into the property of the petitioner. 3. Being aggrieved by Ext.P3 order, the petitioner preferred appeal before the 4th respondent. The main contention against Ext.P3 is that the findings of the Secretary that the construction is not violative of any provision of the Building Rules, is not correct. According to the petitioner there is no set backs provided as required under the Building Rules, especially on the southern side which is the common boundary of both parties. The further contention is that such a finding arrived in a proceedings initiated under Section 406 was not proper, especially without considering merits of any regularisation application submitted along with fresh plan, and without collecting any compounding fee thereon. On the contrary respondents 1 and 3 contended before the Tribunal that the construction in question will not in any way violate the provisions of Building Rules and therefore the directions issued by the 1st respondent to regularise the construction was perfectly legal and in order. 4. The petitioner placed reliance on Ext.C1 commission report filed by an Advocate Commissioner appointed from the 4th respondent Tribunal, in order to contend that there is no clearance on the southern side of the 3rd respondent's building as W.P.(C).25703/05 4 required under the Building Rules. But the Tribunal found that the descriptions about the compound wall in Ext.C1 report is unintelligible regarding its alignment and further found that all the measurements stated therein are only approximate. Therefore it is found that placing reliance on the report for entering into any conclusion will be unsafe. Hence the Tribunal found that there is no satisfactory evidence adduced by the petitioner to prove that the building of the 3rd respondent is lacking from statutory clearance from boundaries of the property. However, the Tribunal found that there exist a dispute, which is pending in a civil court, with respect to the alignment of the boundary line separating the properties of the petitioner and 3rd respondent. Therefore it is held that conclusions in Ext.P3 to the effect that there is sufficient open space on the southern side of the 3rd respondent's building, as stipulated in the Building Rules, is not acceptable, because such a finding is based only on the position of the boundary wall as it exist now, which may change when the actual boundary line is fixed. Hence the Tribunal found that conclusions regarding sufficiency of open space on the southern side can be fixed only by a competent civil court. The Tribunal ultimately dismissed the appeal reserving right of the petitioner to move before the Secretary of the 1st respondent Corporation, after disposal of the W.P.(C).25703/05 5 civil suit, in case if there is any change in the alignment of the common boundary as fixed by the civil court. It is clarified that decision if any taken by the Secretary with respect to regularisation will be subject to the petitioner's right to move for re-consideration, on the basis of the decision of the civil court as stated above. 5. Heard Sri. K. Ramakumar, learned senior counsel appearing for the petitioner, Sri.B. Harish Kumar, learned counsel appearing for the 3rd respondent and the standing counsel appearing for the 1st respondent Corporation. The factual dispute regarding the alignment of the common boundary, which is pending adjudication in civil court, and the dispute regarding actual clearance available cannot be adjudicated and resolved by this Court. But the main thrust of argument of the learned senior counsel is regarding the irregularity and impropriety in Ext.P3 order, to the extent it arrived at a finding to the effect that there is required clearance on all sides of the 3rd respondent's building, and the construction does not in any way infringe the provisions of the Building Rules, and the same can be regularised. Such a decision, according to the petitioner, is highly premature. The question whether a construction made in deviation from the approved plan can be regularised or not and whether such deviated construction will W.P.(C).25703/05 6 infringe the provisions of the Building Rules, are matters to be considered and adjudicated on the basis of the application for regularisation to be submitted along with fresh plan containing the altered constructions effected. It is not a matter which can be decided in a proceedings initiated under Section 406, even before receipt of an application for regularisation, is the contention. 6. Section 406 of the Act contemplates procedure for demolition or alteration of building unlawfully commenced, carried on, or completed, in violation of an approved plan. The said provision contemplate issuance of a provisional order requiring the owner to demolish the work unlawfully executed or made in violation of the approved plan or to bring such work in conformity with the plan and specifications on which the permission is granted, or to show cause against confirming such provisional order. After hearing objections, the Secretary of the Corporation is empowered either to confirm the order or to modify the same to such extent he may think fit. Therefore the normal procedure in a proceedings under Section 406 of the Act, should culminate in a finding as to whether there is unauthorised or deviated construction and as to whether it is to be demolished, removed or altered. But the proviso to Section 406(1)(iii) give discretion to the Secretary for regularising such W.P.(C).25703/05 7 construction on realisation of the prescribed compounding fee, if such construction is not in contravention of the provisions of the Building Rules. Chapter XX of the Building Rules deals with Regularisation of unpermitted constructions and deviations. Rule 143 of the Building Rules deals with the powers of the Secretary to regularise certain constructions. The procedure to be adopted for the purpose of considering regularisation is enumerated in Rule 144. Rule 145 deals with the Application fee to be collected. Rule 146 prescribe detailed procedure to be adopted when a decision is taken either to grant or to refuse regularisation. It provides about determination of compounding fee to be collected, its rates, method of collection etc. Intimation to be given in a case of refusal is also contemplated therein. Again Rule 147 of the said Rules enumerate steps to be followed for demolition of buildings which are not regularised. 7. From a scanning of the above quoted provisions it is evident that a comprehensive scheme is provided to deal with applications for regularising unauthorised or deviated constructions. Therefore the question mooted for consideration is as to whether a decision permitting regularisation can be taken by the Secretary, without complying with the procedure contemplated in Chapter XX of the Building Rules, straight away in proceedings initiated under Section 406 for demolition of an W.P.(C).25703/05 8 unlawfully completed construction. Whether it is proper to drop any proceedings initiated under Section 406, merely on the finding that the unauthorised or deviated construction can be regularised. Basically, the right to approach the Secretary for regularisation is an option provided under the statute to the owner of the building which is constructed unauthorisedly or deviated from the approved plan. Only when the person, against whom an action under S.406(1) is initiated, approaches the Secretary with an application as contemplated under the proviso to Section 406(1)(iii) complying with all the procedure contemplated in Chapter XX of the Building Rules, the Secretary need to examine the scope for granting regularisation. Then only the Secretary can take an appropriate decision based on the particulars furnished in the application for regularisation and revised plan submitted therewith, as to whether regularisation can be granted or refused. While considering a question as to whether a provisional order issued for demolition of the unauthorised construction need be confirmed or not, the Secretary is not expected to arrive at any conclusion regarding regularisation, without there being any such request submitted in accordance with the Building Rules. Any decision with respect to grant of regularisation if taken without compliance of the procedure in Rule 143 to 147 contained in Chapter XX of the W.P.(C).25703/05 9 Building Rules cannot be sustained as proper and regular. 8. Under the above mentioned position of law Ext.P3, to the extent it held that the construction made in deviation of the approved plan is liable to be regularised, cannot be sustained. Since the appellate authority had not looked into the matter in the above perspective, Ext.P4 also requires reversal. Hence the findings in Ext.P3 to the above extent, which is confirmed in Ext.P4, is hereby set aside. But the 1st respondent is restrained from taking any further steps against the 3rd respondent based on the findings regarding the unauthorised construction made in deviation from the approved plan, provided the 3rd respondent submits proper application for regularisation accompanied with plan and drawings along with remittance of required fee, as provided under Rule 143 to 145 of the Kerala Muncipality Building Rules, 1999, within a period of one month from today. If such an application is received, the Secretary of the 1st respondent Corporation shall consider and dispose of the same on its merits, following the procedure contemplated in Rule 143 to 147 of the Building Rules, untramelled by any observations in Ext.P3 or P4 orders. Since the petitioner herein was pursuing her complaint in the matter, she should be afforded with an effective opportunity of personal hearing before any decision is taken in this regard. The decision in this regard will be taken by W.P.(C).25703/05 10 the Secretary as early as possible, at any rate within a period of six weeks from the date of receipt of such application. It is made clear that, considering the pendency of the civil dispute regarding alignment of the common boundary wall of the parties, the decision if any taken by the Secretary as above will be subject to the final outcome of the civil suit and either parties are at liberty to work out their remedies against such decision based on the final outcome of the civil suit. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb