IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WA.No. 314 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.15555/2007 Dated 12/11/2007 .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- N.RAJASEKHARAN NAIR, SOUTH OVER-BRIDGE, M.G.ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE SRI.MANU TOM SRI.M.H.HANIS RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2 --------------------------------------------- 1. ARASI VIJAYAKUMAR, "DHRUVAM", THIRUVALLAM P.O., THIRUVANANTHAPURAM, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, K.KRISHNANKUTTY. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R3 SRI.P.K.MANOJKUMAR FOR R3 SRI.P.GOPALAKRISHNAN NAIR FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2010, ALONG WITH WA NO. 1153 OF 2008 THE COURT ON 07/09/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.Nos.314 & 1153 of 2008 ----------------------------------------- Dated this the 7th day of September, 2010 JUDGMENT Ravindran,J. The common appellant in these appeals is the third respondent in W.P.(C)No.15555 of 2007. The first respondent is the petitioner and respondents 2 and 3 are respondents 1 and 2 respectively therein. W.A.No.314 of 2008 arises from the judgment delivered by the learned single Judge on 12.11.2007 allowing the writ petition and W.A.No.1153 of 2008 arises from the order passed by the learned single Judge on 18.3.2008 in I.A.No.3019 of 2008 by which the last sentence in the judgment delivered on 12.11.2007 was corrected. The brief facts of the case are as follows. 2. A parcel of land, approximately 2 cents in extent, wherein building bearing door Nos.TC 38/1607 and TC 38/1608 were situated, originally belonged to Smt.Rajalakshmi. A substantial portion thereof, lying adjacent to M.G.Road, Trivandrum, was acquired for the purpose of widening the said road and Smt. Rajalakshmi was left with 600 Sq. links of land. She assigned the said parcel of land to Sri.Antony Fernandez as per sale deed No.2030/1997 of SRO, Trivandrum. Later, W.A.Nos.314 & 1153 of 2008 -:2:- as per the originals of Ext.R3(a) and R3(b) sale deeds, dated 24.2.1999, the appellant purchased the said parcel of land from Sri.Antony Fernandez. According to the appellant, shop buildings bearing door Nos.TC 38/1607 and 38/1608 were left out of the acquisition and were situated in the said parcel of land. The appellant states that after he purchased the land, he repaired and renovated the buildings and started running a tea shop and a cool bar therein. He thereafter applied to the Secretary of the Trivandrum Corporation for effecting transfer of registry. The said application was rejected by order passed on 26.3.1999. The Secretary, Trivandrum Corporation had in the meanwhile issued Ext.R3(i) provisional order dated 9-3-1999 under section 406(1) of the Kerala Municipality Act, 1994 alleging that the appellant has constructed the building without obtaining the permission of the Corporation. The appellant was called upon to refrain from proceeding with the construction and to dismantle the unauthorised construction within three days. He was also called upon to show cause why the said order should not be confirmed. The Secretary, Trivandrum Corporation thereafter passed Ext.R3(j) order dated 23.6.1999 confirming the provisional order and directing demolition of the W.A.Nos.314 & 1153 of 2008 -:3:- building. The appellant challenged these orders by filing an appeal before the State Government under section 509 of the Kerala Municipality Act, 1994. He thereafter filed O.P.No.23629 of 1999 in this Court. By judgment delivered on 29.9.1999 the said writ petition was disposed of with a direction to the Government to dispose of the appeal after affording the appellant and the first respondent in that writ petition, a reasonable opportunity of being heard. 3. While matters stood thus, the Government issued the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999 in exercise of the power conferred on it under section 407 of the Kerala Municipality Act, 1994. The said rules came into force on 14.10.1999. In section 407 of the Kerala Municipality Act, 1994 as substituted with effect from 24-3-1999, it was stipulated that notwithstanding anything contained in the Act, if any person or institution has unlawfully, developed any land or constructed any building on or before 15th October, 1999 the Government may after consultation with the concerned Municipality on realisation of a compounding fee as prescribed, regularise such land development or building construction. It was further stipulated that such regularisation shall not adversely affect any town planning W.A.Nos.314 & 1153 of 2008 -:4:- scheme or master plan approved under the existing provisions of the Town Planning Act and that no building construction shall be regularised, which is done in contravention of the provisions in respect of the security arrangements provided in the Act or in the rules made thereunder. It was also stipulated that applications for regularisation shall be submitted within such time and in such manner as prescribed. In rule 3 of the aforesaid rules it was stipulated that applications for regularisation of unauthorised construction and unauthorised land development shall be submitted to the Secretary concerned on or before 31st October 2000 in Form-I appended to the rules. The appellant thereupon submitted Ext.R3(k) application dated 31.12.1999 in the prescribed form to the Secretary to Government Local Self Government Department through the Secretary of the Trivandrum Corporation. While the said application was pending, by Ext.P1 order passed on 22-1-2000 the Government rejected the appeal filed by the appellant under section 509 of the Kerala Municipality Act. The Government however, directed that the question whether the building should be demolished or whether it should be regularised, has to be decided as per the rules and that the said question is left open. Thereafter, on 8.9.2000 the Secretary W.A.Nos.314 & 1153 of 2008 -:5:- of the Corporation rejected an application submitted by the appellant on 6.11.2000 for regularisation of the construction on the ground that the construction of the building was completed after 15.10.1999. Aggrieved by the said order, the appellant filed O.P.No.33093 of 2000 in this Court. By Ext.P2 judgment delivered on 27.3.2001 the said writ petition was dismissed. 4. In the meanwhile, the first respondent/writ petitioner purchased the parcel of land lying adjacent to the land belonging to the appellant as per the original of Ext.R3(c) sale deed dated 27.1.2003 from the former owner Smt.Dhanalakshmi. She thereafter filed Ext.P3 petition dated 8.4.2003 before the Hon'ble Minister for Local Self Government requesting that an order directing demolition of the building constructed by the appellant be issued. She also requested that the appellant should be granted permission to construct a building only after providing the requisite set back from the western boundary. It appears that thereafter, the application dated 31.12.2009 submitted by the appellant for regularisation of the unauthorised construction was placed before the Government. By Ext.P5 order passed on 16.7.2003 the Government allowed the said application. The first respondent thereupon filed W.P(C)No.27946 of W.A.Nos.314 & 1153 of 2008 -:6:- 2003 in this Court challenging Ext.P5. By Ext.P6 judgment delivered on 11.12.2006 a learned single Judge of this Court quashed Ext.P5 and directed the Government to take a fresh decision in the matter after affording the first respondent and the appellant herein a reasonable opportunity of being heard. This Court also directed that while deciding the issue the Government shall take into account Ext.P1 Government order and Ext.P2 judgment of this Court. The appellant sought a review of Ext.P2 judgment by filing R.P.No.49 of 2007. By Ext.P7 order passed on 6.3.2007 the review petition was dismissed. The Government thereafter considered Ext.R3(k) application for regularisation submitted by the appellant and passed Ext.P8 order dated 28.4.2007 allowing the application for regularisation, subject to the terms and conditions stipulated therein. Consequently, the Secretary of the Trivandrum Corporation issued Ext.P9 order regulariing the disputed construction. The instant writ petition was thereupon filed challenging Exts.P8 and P9 orders and seeking the following reliefs:- “(i) to issue a writ of certiorari or other appropriate writ, direction or order quashing Exts.P8 and P9 [Ext.R3(o)] and directing the 2nd respondent to demolish the illegal W.A.Nos.314 & 1153 of 2008 -:7:- construction made by the 3rd respondent in the 600 Sq.Links in Sy.No.1032/1-2-2 of Vanchiyoor Village which is made mention of in Exts.P1 & P2 and ordered to be demolished by the 2nd respondent.” The first respondent contended that the Government had no jurisdiction to allow the application for regularisation filed by the appellant, as the very same petition was rejected by the Secretary of the Corporation and the said order was upheld by this Court in Ext.P2 judgment. It was also contended that the procedure prescribed under the rules was not followed before the Government passed the impugned order and that the Government have not while passing the impugned order taken note of Ext.P1 Government order and Ext.P2 judgment of this Court. 5. The appellant resisted the writ petition by filing a counter affidavit. He contended that the disputed building was constructed prior to 15.10.1999 and that the application for regularisation was filed within time. The appellant also contended that the application that was rejected by the Secretary of the Corporation was another application, which was submitted as the original of the application dated 31.12.1999 was deliberately removed from the files and that W.A.Nos.314 & 1153 of 2008 -:8:- the Secretary had rejected the second application on the ground that the application is belated. The appellant contended that the application dated 31.12.1999 was later traced out and that after following the prescribed procedure and enquiry, Ext.P8 order was passed regularising the construction. 6. The official respondents did not file counter affidavits. By the judgment under challenge the learned single Judge held that in view of the finality attained by the order rejecting the appellant's application for regularisation by reason of Ext.P2 judgment of this Court, Ext.P8 order cannot be sustained. The writ petition was accordingly allowed, Ext.P8 was quashed and the Corporation of Trivandrum was directed to demolish the building put up by the appellant within two months from the date of receipt of a copy of the judgment. Writ Appeal No.314 of 2008 was thereupon filed on 31.1.2008 challenging the said judgment. After the said writ appeal was filed, the first respondent filed I.A.No.3019 of 2008 to correct the judgment by quashing Ext.P9 also. By order passed on 18.3.2008 the said application was allowed. Writ Appeal No.1153 of 2008 was thereupon filed challenging the said order. 7. We heard Sri.K.Ramakumar, learned Senior Counsel W.A.Nos.314 & 1153 of 2008 -:9:- appearing for the appellant, Sri.P.Gopalakrishnan Nair, learned counsel appearing for the first respondent, Smt.K.Meera, learned Government Pleader appearing for the second respondent and Sri.N.Nandakumara Menon, learned Senior Counsel appearing for the third respondent. We have also gone through the pleadings and the materials on record. It is evident from Exts.R3(a) and R3(b) sale deeds dated 24.2.1999 that the appellant purchased lands where the disputed buildings are situated before 15.10.1999. The schedules to the aforesaid sale deeds refer to buildings bearing door Nos.TC 38/1607 and 38/1608. In the body of the sale deeds also reference is made to the aforesaid shop rooms. It is recited that consideration is paid for the land and the building. According to the appellant, after purchasing the lands he renovated the building, portions of which had been demolished pursuant to the acquisition of the land for widening the road, but such renovation was without obtaining any permission or permit from the Trivandrum Corporation. The Corporation thereupon issued Ext.R3(i) provisional order dated 9.3.1999 under section 406(1) of the Kerala Municipality Act, 1994 directing demolition of the unauthorised construction. It was followed by a final order dated 23.6.1999 (Ext.R3(j) issued W.A.Nos.314 & 1153 of 2008 -:10:- under section 406(3) of the Kerala Municipality Act, 1994. The appellant challenged the said order before the State Government by filing an appeal under section 509 of the said Act. By Ext.P1 order passed on 22-1-2000 after hearing the appellant and Smt.Dhanalakshmi, the predecessor in interest of the first respondent on 27-12-1999, the Government dismissed the said appeal. However, while dismissing the appeal filed by the appellant, the Government observed that the question whether the building should be demolished or should be regularised is a matter which will have to be decided as per the provisions of the Act and the Rules. By the time Ext.P1 order was passed, the appellant had admittedly filed an application dated 31.12.1999 before the Secretary of the Trivandrum Corporation in accordance with section 407 of the Kerala Municipality Act, 1994 and the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999 for regularisation of the construction. As per the provisions of section 407 of the Kerala Municipality Act, 1994 the authority competent to regularise the construction of a building unauthorisedly constructed on or before 15.10.1999 is the Government. The period of time within which the application for regularisation had to be submitted W.A.Nos.314 & 1153 of 2008 -:11:- and the manner in which such application has to be filed are laid down in the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999. As per rule 3 thereof, applications for regularisation of unauthorised construction are to be submitted to the Secretary of the Municipality or Grama Panchayat concerned before 31.10.2000 in the form prescribed therein. The application is to be accompanied by the receipt evidencing payment of the application fee stipulated in rule 4 together with a plan and service plan of the building, documents to prove ownership and proof of having completed the construction before 15th October 1999 and such other documents referred to therein. Rule 3 reads as follows:- “3. Submission of application for regularisation of unauthorised construction and unauthorised land development.-- (1) Application for regularisation of unauthorised construction and unauthorised land development shall be submitted to the Secretary concerned on or before 31st October, 2000 in Form-I appended to these rules. (2) The application shall be accompanied by the following documents, namely:- (a) A receipt for payment of application fee, if any paid to the concerned Panchayat or the W.A.Nos.314 & 1153 of 2008 -:12:- Municipality as per rule 4; (b) The plan and service plan of the building constructed or the land development carried out; Provided that in the case of huts of any area or buildings with area not exceeding 20m2, only site plan showing the boundaries of the land, access, abutting road and location, area and set back etc. is required. (c) Copy of plans, if any, earlier approved by the Secretary; (d) Documents to prove ownership of land; (e) Proof of having completed the construction before 15th October, 1999; (f) Details of application/exemption application, if any, filed earlier, (g) Exemption order, if any, obtained earlier; and (h) Details of action, if any, taken by the concerned local body against his construction.” Rule 5 of the rules sets out the procedure for disposal of the application. The said rule is quoted below for easy reference:- “5. Procedure for disposal of the application.-- (1) The Secretary shall, after necessary inspections and verifications forward the application to the Town Planner of the Town and Country Planning Department having jurisdiction in the District within 30 days of the receipt, stating W.A.Nos.314 & 1153 of 2008 -:13:- whether the construction was completed before 15 th October, 1999 or not . (2) Details of any building/land development permit earlier issued, any conditions stipulated therein and reference to any orders granting exemption from the building rules for the time being in force or Town Planning Scheme shall be verified and noted by the Secretary. (3) The Secretary shall note the extent of violations of any provisions of the building rules, for the time being in force and Town Planning Scheme, if any, in the report. The compounding fee as in Table-I appended herein, to be remitted in case it is allowed, may be calculated and noted in the report. (4) The Town Planner concerned shall examine the application in detail and forward the same with recommendation to the Government within 30 days of its receipt. The amount of compounding fee to be paid should be reported to the Government. (5) The Government, after examining the plans, other documents and also the recommendation of the Secretary and the Town Planner, shall issue orders according sanction to the Secretary for regularisation with or without conditions or rejecting the same and copies of the said order shall be sent to the applicant, the Secretary and the Town Planner concerned. The W.A.Nos.314 & 1153 of 2008 -:14:- Government Order according sanction for regularisation shall specify the amount of compounding fee to be remitted in the Government Treasury, the Head of account and the period within which fee is to be remitted in the Government Treasury. (6) If the applicant fails to remit the specified compounding fee or fails to comply with the conditions on or before the date specified in the regularisation order, the regularisation order issued by Government shall cease to operate from the said date. (7) 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 for the area or if the construction grossly violates any safety provisions in the building rules for the time being in force or any safety condition specified in the exemption order or permit. (8) The Secretary shall maintain a register of all treasury remittances towards compounding fee and shall forward quarterly reports thereon to the Government. (9) Secretary shall also maintain a permanent register of all constructions or developments regularised under these rules containing the details such as name and address W.A.Nos.314 & 1153 of 2008 -:15:- of the applicant, nature of the unauthorised construction or land development, number and date of the Government Order by which regularisation was granted, amount of compounding fee remitted with chalan receipt particulars, conditions, if any, stipulated in the order and action taken and the result thereof.” (emphasis supplied) Rule 6 prescribes the procedure in cases where the application for regularisation is rejected. Rule 6 is extracted below:- “6. Procedure in case the application for regularisation is rejected.-- (1) In case the application for regularisation of any unauthorised construction is partly allowed by Government and the applicant does not comply with the conditions including non-remittance of compounding fee within the time specified, it shall be the responsibility of the Secretary to take appropriate action for the demolition of such part of the building which is not regularised so as to render the remaining part of the construction to be in conformity with the order or conditions stipulated in the Government Order for regularisation. (2) If the owner of any unauthorisedly constructed building fails to submit any application for regularisation on or before 31 st October, 2000 or if the application for regularisation is rejected in W.A.Nos.314 & 1153 of 2008 -:16:- toto or if the compounding fee is not remitted within the time specified in the Government Order, the Secretary shall take appropriate action for the demolition of the said unauthorised construction, after the said date or after rejection of the application or after the expiry of the time specified, as the case may be. (3) The Secretary shall have the power to recover the cost for demolition from the owner or person responsible as if it were an arrear of property tax. (4) The Secretary shall have the power to initiate prosecution against the owner or the person responsible for the unauthorised construction or land development for not complying with the provisions of the Act or these rules or any order issued thereunder.” (emphasis supplied) Rule 7 empowers the Government to review its own orders. Rule 7 is extracted below:- “7. Review by Government of its own orders.-- (1) Any person aggrieved by an order issued or action taken by or on behalf of the Government under the provisions of these rules, may file a petition for review, to the Government: Provided that there shall be only one review against any order issued or action taken. W.A.Nos.314 & 1153 of 2008 -:17:- (2) A petition for review under sub rule (1) shall be presented within 30 (thirty) days from the date of the order or the service of the order complained of. (3) When a petition for review has been presented under these rules, the Government may, if felt necessary, stay operation of the order or the action complained against, pending consideration of the petition. (4) The application shall be in white paper typed or written in ink, affixed with Court fee stamp worth Rs.5, and shall also contain true copy of the order to be reviewed. (5) The Government shall, if found so necessary, after hearing the petitioner, the Chief Town Planner and the Secretary, pass appropriate orders on the review petition.” Going by the scheme of the rules, the authority competent to take a decision on the application for regularisation of unauthorised constructions is the Government. No doubt, the Government will have to take into account the recommendations of the Secretary of the Municipality or the Grama Panchayat and the Town Planner while issuing orders on the application for regularisation. 8. It is not in dispute that the appellant had submitted an application in the prescribed form on 31.12.1999, well within the W.A.Nos.314 & 1153 of 2008 -:18:- period stipulated in rule 3 of the aforesaid rules. Ext.R3(k) is a copy of the said application. Ext.R3(k) discloses that it is a copy issued by the Town Planning Officer of the Corporation of Trivandrum. The respondents herein do not dispute the authenticity and genuineness of the said application. However, it appears that the said application was not forwarded to the Government immediately. The appellant has stated in paragraphs 9 and 10 of the counter affidavit dated 8.10.2007 sworn to by him that the said application was removed from the files and was not considered and thereupon he was compelled to submit a fresh application for regularisation and that the said application was rejected as belated. The first respondent has not traversed the said averment by filing an affidavit in reply. By order passed on 8.9.2000, the Secretary of the Corporation rejected that application for regularisation on the ground that the construction was completed after 15-10-1999. The appellant was informed that for that reason his application dated 6.11.2000 for regularisation cannot be considered. The appellant challenged the said order dated 8.9.2000 by filing O.P.No.33093 of 2000 wherein it was produced and marked as Ext.P7. The English translation thereof reads as follows:- W.A.Nos.314 & 1153 of 2008 -:19:- “Corporation of Thiruvananthapuram T.P.3/13300/99. Thiruvananthapuram 8.9.2000 NOTICE Sub: Thiruvananthapuram Corporation – Regularisation of unauthorised construction – rejection of application – intimation reg. As the unauthorised construction made by you close to Azad Hotel, adjacent to the six line – Kizhakkekotta Over-bridge road in Chenthitta Division of Trivandrum Corporation was completed after 15.10.1999, it cannot be regularised under the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999. You are therefore informed that your application for regularisation dated 6.11.2000 cannot be considered. Sd/- Secretary. Sri.N.RajasekharanNair, T.C.37/936(1), Kottakkulam, Fort.” 9. It is evident from the notice dated 8.9.2000 that what was rejected was an application dated 6.11.2000 for regularisation and that the rejection was not by the Government but by the Secretary of the Trivandrum Corporation. The reason stated by the Secretary for taking the stand that the application cannot be considered is that the building was constructed after 15.10.1999. The challenge to the said W.A.Nos.314 & 1153 of 2008 -:20:- notice was repelled by this Court by Ext.P2 judgment delivered on 27.3.2001 on the ground that when the application per se is not maintainable, the Corporation will be competent to reject it. The relevant portion of paragraph 11 of Ext.P2 judgment reads as follows:- “It is for the Government to pass orders. But advertence to the Rule shows that it is not so. When per se the application is not maintainable, it will be competent for