IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 WP(C).No. 31606 of 2003(K) -------------------------- PETITIONER(S): --------------- VALIYAKATH RIYAS, S/O.AHAMMED KOYA, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.A.A.ABUL HASSAN RESPONDENT(S): --------------- 1. SECRETARY, CALICUT CORPORATION, CALICUT-673 001. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (M) DEPARTMENT, THIRUVANANTHAPURAM. 3. VADAKKATHODIKAYIL KOYA (V.T.KOYA) S/O.ABDULRAHMANKUTTY, V.T.HOUSE, NEAR KARANTHOOR SERVICE BANK, P.O.ELATHOOR, KOZHIKODE TALUK. ADV. SMT.K.V.RESHMI FOR R3 GOVERNMENT PLEADER SRI. M.R. SABU FOR R2 SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP FOR R1 SRI.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/ 11/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31606 of 2003 EXT.P1: COPY OF THE APPROVED PLAN OF THE GROUND FLOOR SUBMITTED ALONG WITH APPLICATION FOR SANCTION FOR THE CONSTRUCTION OF THE FIRST FLOOR. EXT.P2: COPY OF THE JUDGMENT DATED 7.11.2000 IN O.P.NO.31218/2000 PASSED BY THIS HON'BLE COURT. EXT.P3: COPY OF THE G.O.(RT)NO.2923/2001/LSG DATED 19.9.2001 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE LICENCCE DATED 7.6.1991 ISSUED BY R1. EXT.P5: COPY OF THE JUDGMENT DATED 3.4.2002 IN O.P.NO.29694/2001 PASSED BY THIS HON'BLE COURT. EXT.P6: COPY OF THE PLAN SUBMITTED FOR REGULARISATION OF UNAUTHORISED CONSTRUCTION. EXT.P7: COPY OF THE ORDER NO.E4/450/2001 DATED 1.6.2002 ISSUED BY R1. EXT.P8: COPY OF THE REPRSENTATION DTD 25.10.2002 SUBMITTED BY THE PETITIONER BEFORE R2. EXT.P9: COPY OF THE REPORT NO.C2/1701/02/L.DIS. DATED 13.9.2002 ISSUED BY THE REGL. TOWN PLANNER, KOZHIKODE. EXT.P10: COPY OF THE REPORT NO.C-2/3399/02 DATED 30.11.2002 ISSUED BY THE TOWN PLANNER, KOZHIKODE. EXT.P11: COPY OF THE REPORT NO.E4/71510/2000 DATED 20.11.2002 ISSUED BY R2. EXT.P12: COPY OF THE G.O.(RT)NO.3259/2003/LSGD DATED 12.09.2003. EXT.P13: COPY OF THE G.O.(MS)NO.264/2000/LSGD DATED 19.9.2000 ISSUED BY R2. EXT.P14: COPY OF THE REPRESENTATION DATED 10.10.2003 FILEED BY THE PETITIONER BEFORE THE GOVT. WP(C).No. 31606 of 2003 EXT.P15: COPY OF THE REPRESENTATION DATED 15.10.2003 AND A RECEIPT OF ACKNOWLEDGMENT. EXT.P16: COPY OF THE ORDER G.O.(RT) NO.3902/2003 DATED 31.10.2003 ISSUED BY THE GOVERNMENT. EXT.P17: COPY OF THE PETITION DATED 20.3.2003 SUBMITTED BY THE PETITIONER BEFORE R1. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.31606 OF 2003 ---------------------------------------- Dated this the 14th day of November, 2008 JUDGMENT The petitioner is conducting two shop rooms at P.M. Taj Road, Kozhikode. The said shop rooms are part of a larger building which is called Asha Shopping Complex. At the time of construction of the shopping complex on the eastern side of the shop rooms belonging to the petitioner, a parking area was provided. The building is a two storied building, which as per the Building Rules would require parking space at least for four cars. The petitioner alleges that during July 2000, the 3 rd respondent converted the parking space into two shop rooms and fitted rolling shutters thereto, as a result of which there was no space for car parking. On a complaint from the petitioner to the 1 st respondent, a prohibitory order of further construction and demolition of the illegal construction already made, was issued. However, since the 1 st respondent did not take any steps to implement that order, the petitioner filed O.P.No.31218/2000, in which this Court passed Ext.P2 judgment, wherein this Court W.P.(c)No.31606/2003 2 directed the Corporation to forward Ext.P4 complaint filed by the petitioner to the Government with a further direction that the Government shall pass appropriate orders thereon, after hearing the parties. This Court further directed therein that if it was ultimately found that the 3 rd respondent herein had carried out unauthorized constructions, appropriate orders should be passed to see that such unauthorized structures are not permitted to remain. Pursuant thereto, the Government heard all parties and passed Ext.P3 order dated 19.9.2001, in which, after perusing the relevant records, the Government found that as per the original plan, there was open space in between the shop rooms and a room shown as store room, which was closed with shutters and used as a shop room. A specific finding was entered into to the effect that the car parking area in the approved plan was converted into shop room, which was unauthorized. After holding so, by Ext.P3 order, the Government directed the 1 st respondent Corporation to verify the plans originally approved by the Corporation for the construction of the shopping complex and proceed with action against the unauthorized construction as per Rules. W.P.(c)No.31606/2003 3 2. The 3 rd respondent herein is stated to have filed an application for regularization of the unauthorized construction. He also filed O.P.No.29694/2001 challenging Ext.P3 Government Order, in which this Court passed Ext.P5 judgment, wherein this Court directed the 1 st respondent Corporation to take steps pursuant to Ext.P3 order with notice to the petitioner and respondents 4 and 5. Pursuant thereto, the 1 st respondent Corporation passed Ext.P7 order dated 1.6.2002, in which it was stated that on a perusal of the original plan, there was car parking area, which has been closed and was being used to as a shop room. Accordingly, by Ext.P7 order, the Corporation directed the 3 rd respondent herein to restore the parking area as well as the store room. The 3 rd respondent challenged that order before the Government. In respect of the same, the Town Planner of the 1 st respondent Corporation reported to the Government that the stay of demolition of the uauthorised structures should be cancelled. He further recommended that in view of the increasing traffic congestion in Kozhikode area, for avoiding such traffic congestion, the Corporation should be directed to W.P.(c)No.31606/2003 4 ensure that the Building Rules are strictly complied with, by Ext.P9 report dated 13.9.2002. The Town Planner submitted Ext.P10 report dated 30.11.2002, in respect of the construction by the 3 rd respondent and pointed out seven violations of Building Rules. The 1 st respondent Corporation also conducted a verification, report of which is Ext.P11 dated 20.11.2002, in which it is stated that the 3 rd respondent had been informed that the construction made by the 3 rd respondent is in violation of the original approved plan and therefore the space should be restored as per the original plan within 14 days. But the same could not be implemented because of a stay order issued by the Government. Thereafter, it appears that an application for regularization stated to have been submitted by the 3 rd respondent was forwarded by the Corporation to the 2 nd respondent. The 2 nd respondent considered the same and passed Ext.P12 order dated 12.09.2003 regularising the unauthorized construction made by the 3 rd respondent, in exercise the powers under the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules 1999, which gave powers to the W.P.(c)No.31606/2003 5 Government to regularize the unauthorized constructions made before 15.10.1999 on applications submitted on or before 31.10.2000. Ext.P12 order dated 12.9.2003 was passed pursuant thereto directing the Corporation to regularize the unauthorized construction made by the 3 rd respondent on conditions mentioned therein. As per the same, the car parking area shown in the approved plan was directed to be restored as per the approved plan or one car parking space should be provided within the plot. 3. The petitioner would submit that the very act of the Government itself considering the application for regularization is suspicious in so far as by Ext.P13 order dated 19.9.2000 the Government had delegated the powers under the Rules to the District Collector and there were apparently no reason for the Government themselves to consider the application deviating from the usual procedure of the District Collector considering such applications. The petitioner submits that this is on account of the political pressure exerted by the 3 rd respondent through certain political bigwigs, whose names are specifically mentioned in paragraph 16 of the writ petition. Thereafter, W.P.(c)No.31606/2003 6 the 3 rd respondent filed an application for review of Ext.P12 order, which was allowed by Ext.P16 order dated 31.10.2003 giving further regularization to the 3 rd respondent in respect of the unauthorized construction. The petitioner is now challenging Exts.P12 and P16 orders in this writ petition. 4. The petitioner contends that at every step, Rules have been freely relaxed in favour of the 3 rd respondent in the matter. As per the Regularization Rules, only constructions made on or before 15 th October 1999 could have been regularized. As per Rule 3 of the Regularisation Rules, the application for regularization was to be submitted before the Secretary of the Corporation before 31.10.2000 and the same should be accompanied by the documents mentioned in Sub Rule 2 thereof, which includes proof of having completed the construction before 15.10.1999. According to the petitioner, no proof whatsoever for having completed the construction before 15.10.1999 was produced by the 3 rd respondent before the 1 st respondent. He further submitted that without production of that proof, which is one of the most important documents for the purpose of regularization, the Secretary of W.P.(c)No.31606/2003 7 the Corporation could not have forwarded the application for regularization of the unauthorized construction to the Government, which has been done in this case which would go to show the enormous political clout wielded by the 3 rd respondent over all authorities including the Corporation and the Government. The petitioner would further contend that the powers under the Regularisation Rules could not have been exercised to the detriment of the petitioner’s right. As an owner of the shop rooms in the particular shopping complex, the petitioner had a right to use the parking area provided, which right could not have been taken away by the Government, by regularising the unauthorized construction made by the 3 rd respondent. The petitioner further points out that admittedly, the application for regularization did not contain any date. However, the statement of the 3 rd respondent that it was submitted before 31.10.2000 was accepted without any supporting materials. He also points out that in so far as the 3 rd respondent had not produced any evidence to show that the construction was before 15.10.1999, the essential condition for granting regularization was not W.P.(c)No.31606/2003 8 complied with by the 3 rd respondent and therefore, the Government could not have validly granted regularization of unauthorized construction by the 3 rd respondent. It is also pointed out that since a stop memo was issued long after 15.10.1999 the irresistible conclusion is that the construction was complete long after that date. 5. The 3 rd respondent has not chosen to file any counter affidavit. Respondents 1 and 2 have filed counter affidavits supporting the impugned orders. 6. I have considered the rival contentions in detail. 7. As pointed out by the learned counsel for the petitioner, Regularisation Rules postulate regularization of those constructions only which were completed before 15.10.1999. Therefore, without proof of that fact, the Government could not have entertained the application for regularization of the unauthorized construction made by the 3 rd respondent. Either in Ext.P12 order or in Ext.P16 order, I do not find any categoric finding that the 3 rd respondent has proved that the construction was before 15.10.1999. As seen from Rule 3(2) (e) every application for regularization of W.P.(c)No.31606/2003 9 unauthorized construction shall be accompanied by proof of having completed the construction before 15.10.1999. It is not disputed before me that the 3 rd respondent had not produced any proof of having completed the construction before 15.10.1999, either along with his application or before the Government. Under Rule 5, application submitted by an applicant before the Secretary of the Corporation shall, after necessary inspections and verifications, be forwarded to the Town Planner of the Town stating whether the construction was completed before 15.10.1999 or not, who in turn has to examine the application and forward the same with recommendations to the Government. That being so the Secretary can forward only those applications, which are accompanied by the documents mentioned in Rule 3(2), which includes proof of having completed the construction before 15.10.1999. The stipulation in the rules regarding forwarding of the application to the Town Planner under Rule 5 within the time limit prescribed therein also does not appear to have been complied with. Admittedly, the 3 rd respondent did not produce any proof of having completed the construction before W.P.(c)No.31606/2003 10 15.10.1999. Therefore, the Secretary could not have forwarded the application at all. 8. Secondly, before the Government also no proof of having completed the construction before 15.10.1999 was produced by the 3 rd respondent. On the other hand, in spite of Exts.P2 and P5 judgments, which categorically directed the Corporation to take steps for demolition of the unauthorized structure as per Ext.P3 order without any freedom to move for regularisation of the unauthorised construction, the 3 rd respondent has not cared to challenge those judgments at all. Further there is evidence to show that the Corporation had in fact issued a stop memo on 12.11.2000, after inspecting the premises in question. That also would go to show that the completion of the building was not before 15.10.1999. Therefore, when the 3 rd respondent had not completed the construction before 15.10.1999, the Government could not have exercised its powers under the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules 1999 at all. W.P.(c)No.31606/2003 11 9. Apart from the same, the very fact that the rules prescribed elaborate procedure for considering the applications for regularization of unauthorized construction would show that the same was not to be granted on mere application. According to me, such regularisation could have been granted only after ensuring that such regularisation will not affect the rights of other persons and public as a whole. Here, the petitioner had a right to use the parking area which has been closed by the 3 rd respondent as a shop room. Therefore, that unauthorized construction directly affects the right of the petitioner to have a parking space in the building. That right of using the parking space was taken away by the impugned orders of the Government regularizing the unauthorized construction made by the 3 rd respondent. Further the Town Planner had reported to the Government that the unauthorised construction would add to the traffic congestion in the city. I am satisfied that the Government could not have passed the impugned order disregarding the rights of the petitioner to have the use of the parking area in question and the rights of the public as well. For this reason also, the impugned orders W.P.(c)No.31606/2003 12 are bad. In view of my above findings, I am not going into the allegations of malafides raised by the petitioner which going by the events noted cannot be said to be totally unfounded. In the above circumstances, Exts.P12 and P16 orders are quashed and the 1 st respondent – Corporation is directed to implement Ext.P3 order of the Government and Ext.P7 order passed by the Corporation, in letter and spirit, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.31606/2003 13