IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 2274 of 2006(U) ------------------------------------- PETITIONER(S): --------------------- V.A. GEORGE, AGED 55, S/O.AVIRA, VALIYA VEETTIL, ETTUMANNOOR, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) MR.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (E) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. ATHIRAMPUZHA GRAMA PANCHAYATH (SPECIAL GRADE), ATHIRAMPUZHA, PIN- 686 562, KOTTAYAM, REP. BY ITS SECRETARY. 3. V.A. SIMON, VATAKARA HOUSE, AMALAGIRI P.O. KOTTAYAM. R1 BY GOVERNMENT PLEADER MR.V. MANU. R2 BY ADV. SRI.RAJESH THOMAS,SC,ATHIRAMPUZHA G.PAN. R3 BY ADV. MR.V.C.JAMES . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, ALONG WITH WPC NO. 20684 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2274/2006-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PHOTOGRAPH OF THE BUILDING OF THE PETITIONER AND PORTION OF THE PROPERTY OF THE 3RD RESPONDENT. EXT.P2: COPY OF THE ORDER NO.G.O.(RT)NO.2205/03/LSED DATED 21/06/2003 OF 1ST RESPONDENT. EXT.P3: COPY OF THE CHALAN RECEIPT NO.565 DATED 21/08/2003. EXT.P4: COPY OF THE ENQUIRY REPORT OF THE SUB COMMITTEE OF 2ND RESPONDENT PANCHAYATH DATED 24/11/2003. EXT.P5: COPY OF THE RESOLUTION NO.VII(3) OF 2ND RESPONDENT PANCHAYATH DATED 24/11/2003. EXT.P6: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 18/01/2004. EXT.P7: COPY OF THE REQUEST NO.3977/E3/04/LSGD DATED 13/12/2004. EXT.P8: COPY OF THE JUDGMENT IN WP(C) NO. 23884/05 DATED 17/08/2005. EXT.P9: COPY OF THE NOTICE NO.A3-394/00 DATED 26/10/2005 ISSUED BY 2ND RESPONDENT TO THE PETITIONER. EXT.P10: COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P11: COPY OF THE ORDER NO.A3-399/00 DATED 09/01/2006 ISSUED BY 2ND RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.2274/2006-U & 20684/2008-K = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of July, 2009. JUDGMENT 1.These writ petitions are by persons who had carried out certain constructions in violation of the Kerala Municipality Building Rules, hereinafter referred to as the "KMBR". By virtue of the provisions under Section 407 of the Kerala Municipality Act, 1994, hereinafter referred to as the "Act" and the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999, hereinafter referred to as the "Regularisation Rules" framed by the Government in exercise of authority under the Act, the Government have granted orders for regularising the said unauthorised constructions. One of the conditions imposed by the Government in both the matters is that the respective builder should get the consent of the immediate WP(C)2274/06 & 20684/06 -: 2 :- neighbour who could be affected by the regularisation. The imposition of that condition is under challenge. 2.It is pointed out that Section 407 does not provide the authority to impose any condition. It does not make any prescription in that regard. While the Regularisation Rules provide that regularisation may be ordered on such conditions as the Government may fix, the Regularisation Rules to that extent are not under challenge. Obviously, therefore, the Government has the power to impose conditions while issuing regularisation orders. Not only that, even in the absence of a specific inclusion in Section 407 in that regard, such power to impose a condition is inbuilt and implied in Section 407 in as much as the power to condone an illegality carries with it the power to issue such condonation orders by imposing conditions. Essentially, the power of the Government to impose conditions, therefore, stands. WP(C)2274/06 & 20684/06 -: 3 :- 3.But, more importantly, every condition has necessarily to be reasonable unless, of course, they are made in terms of the statutory mandates. Quite often, the condition regarding the set back from a common boundary gives rise to disputes between parties and those disputes could also generate objections to grant of permits. Therefore, when an order of regularisation is being issued conditional on the obtaining of a consent, it is appropriate that the Government, first, issues notice to the person from whom such consent may be required, to give an opportunity of pre-decisional hearing and then take a pragmatic and practical decision on the conditions to be imposed. The Government would also be the proper authority to swing in the parties to a settlement. For the aforesaid reasons, these writ petitions are allowed to the extent of quashing the impugned decisions and resultantly, relegating WP(C)2274/06 & 20684/06 -: 4 :- the parties to the Government for consideration and decision on the question of regularisation de novo, after hearing the necessary parties. The petitioners and the contesting private respondents are directed to appear before the competent officer in the Government on the 4th August, 2009 so that appropriate date of hearing could be fixed and the matter expedited. Let a final decision follow in both the cases within an outer limit of four months from the date of receipt of a copy of this judgment and appearance of parties, whichever is later. All other issues are left open. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/160709