IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 OP.No. 6453 of 2001(R) ---------------------- PETITIONER: ------------ P.K.JAYARAJ, S/O. P.K.RAGHAVAN, AGED 50 YEARS, RESIDING AT GEETH BHAVAN,KALPETTA. BY ADV. SMT.SUMATHY DANDAPANI (SR.) RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, KALPETTA MUNICIPALITY, WAYANAD DISTRICT. 3. THE DISTRICT TOWN PLANNER, KALPETTA, WAYANAD DISTRICT. ADDL. RESPONDENT: *4. DISTRICT COLLECTOR, WAYANAD. * (IMPLEADED AS ADDL. 4TH RESPONDENT IN OP 6453/01 VIDE ORDER DT. 26.3.08) BY ADV. SRI.A.K.SRINIVASAN FOR R2 SRI.N.S.MOHAMMED USMAN FOR R2 SRI.A.S.BENOY FOR R2 SR. GOVT. PLEADER SRI.BENJAMIN PAUL. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP 6453/2001 ORDER ON CMP NO. 10623/2001 DISMISSED 7.8.2008. SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- M.C.HARI RANI, JUDGE. APPENDIX PETITIONER'S EXTS. EXT.P1 - PHOTO COPY OF NOTICE NO.BA 161/99-2000 DATED 25.9.99 OF THE 2ND RESPONDENT ISSUED TO THE PETITIONER. EXT.P2 - PHOTO COPY OF LETTER NO.BA 161/99-2000 DATED 26.10.99 OF THE 2ND RESPONDENT ISSUED TO THE PETITIONER. EXT.P3 - PHOTO COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 22.2.2000. EXT.P4 - PHOTO COPY OF ORDER NO.15639/2000/LSGW DATED 26.6.2000 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER. EXT.P5 - TRUE COPY OF NOTICE NO.BA 161/99-2000 DATED 11.7.2000 OF THE 2ND RESPONDENT ISSUED TO THE PETITIONER. EXT.P6 - PHOTO COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 16.8.2000. EXT.P7 - PHOTO COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 16.8.2000. EXT.P8 - PHOTO COPY OF NOTICE NO.PW 161/99-2000 DATED 4.12.2000 OF THE 2ND RESPONDENT ISSUED TO THE PETITIONER. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- O.P. NO. 6453 OF 2001-R ----------------------------------------- Dated 7th August, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner has approached this Court, challenging Ext.P8 notice dated 4.12.2000 issued by the Kalpetta Municipality, directing demolition of a building constructed by him. The petitioner submits, he applied for a building permit in Sy. No.98/2 of Kalpetta Village in Vythiri Taluk. The construction of the building was completed in June, 1998. Though he submitted an application for permit, the same was not granted and therefore, on the expiry of the 30 days of the submission of the application, he started the construction and completed the same in June, 1998. While so, the Municipality issued Ext.P1 notice dated 25.9.1999, directing the petitioner to demolish the said building. He submitted a reply to it, pointing out the correct facts before the Municipality. Subsequently, he was served with Ext.P2 OP 6453/2001 2 communication, again calling upon him to demolish the building. Against Exts.P1 and P2, the petitioner filed Ext.P3 appeal before the 1st respondent Government. The said appeal was rejected by Ext.P4 communication. On the basis of Ext.P4, he was further served with Ext.P5 notice, calling upon him to demolish the building. Later, the petitioner submitted Ext.P6 application before the 1st respondent for regularisation of the construction made by him, on the ground that its construction was over by 15.10.1999. He also filed Ext.P7 representation before the Municipality, to stop the proceedings for demolition of the building, till his application Ext.P6 is considered by the Government. Now, he has been served with Ext.P8 communication by the Municipality, directing him to demolish the building, as his application for regularisation of the construction was already rejected by the Government. The petitioner challenges Ext.P8 on various grounds. 2. The Municipality has filed a counter affidavit, in which it is submitted that the petitioner submitted an application for permit for the construction of a residential building, on 17.8.1999. Immediately, OP 6453/2001 3 thereafter, he started construction of a commercial building. So, Ext.P1 notice was issued to him. The Parent Teacher Association of the neighbouring L.P. School, Kalpetta filed a complaint before the Municipality on 27.9.1999, alleging that the construction of the building will result in blocking the pathway leading to the school. Based on that petition, the site was inspected and it was found that the petitioner started digging the ground for laying foundation for the building and the construction started by him was undertaken in violation of Rule 24 of the Kerala Municipality Building Rules, 1999. So, the petitioner was served with Ext.P1 provisional order, which, after hearing him, was finalised as per Ext.P2. The claim of the petitioner that he completed the construction of the building before 31.12.1998 is false. He submitted the application for permit only on 17.8.1999. The claim of the petitioner regarding deemed permit is also unsustainable, as the petitioner has not moved the Council by a written request as contemplated under Section 392 of the Kerala Municipality Act. Therefore, the Municipality prayed for dismissal of the original petition. OP 6453/2001 4 3. We heard the learned counsel on both sides. As per the direction of this Court, the learned counsel appearing for the Municipality produced the file leading to the impugned notice Ext.P8, before us. A perusal of the file would show that the petitioner started digging for laying the foundation only on 17.8.1999. So, the contention of the petitioner that he had completed the construction before 15.10.1999 and therefore, he is entitled to get regularisation, is plainly untenable. 4. If a construction is made in accordance with the Building Rules, but without obtaining the permit, the same can be regularised by the Secretary. There is no point in demolishing the entire building and thereafter reconstructing it, after obtaining the necessary permit. Likewise, in the case of the petitioner, if the building can be modified to make it in conformity with the Building Rules, that portion of the building, which will survive, need not be demolished. In view of the above position, the 2nd respondent is directed to inspect the petitioner's building and find out the violations which have to be removed, to make the same in conformity with the Rules. The 2nd respondent shall do this OP 6453/2001 5 within one month from the date of receipt of a copy of this judgment. The petitioner shall be given three months' time to cure the defects pointed out and to make the construction in conformity with the Building Rules. Thereafter, the 2nd respondent shall again inspect the building and if the directions issued by the Municipality are obeyed, take further steps to regularise the construction in accordance with law. The petitioner shall co-operate with the 2nd respondent by producing the judgment of this Court before him within one month from today and also providing all facilities for the inspection of the building. If the construction is not modified to make it in conformity with the Rules/directions issued by the Secretary within the time granted, the Municipality shall demolish the building without any further delay. The Original Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/ OP 6453/2001 6 K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. --------------------------------------- O.P. NO.6453/2001-R --------------------------------------- JUDGMENT 7.8.2008.