Ext.P5, by which the petitioner's application for regularisation of the construction of a building was rejected by the third respondent, is under challenge.
2. The petitioner, who is the owner in possession of 3 cents of property situated within in the local limits of Keezhur amsom, constructed a three storeyed building on the basis of a permit granted by the second respondent on 24.2.2003. However, when the construction was completed there were some trivial variations from the plan approved by the second respondent. The petitioner would allege that as the Government have issued Kerala Building (Regularisation of Unauthorised Construction) Rules, 2010 (hereinafter referred to as the Rules, for short), the construction of the petitioner's building could be regularised in terms of the Act, as the same would come within the purview of the Rules. Therefore, the petitioner submitted Ext.P2 application in the prescribed form for regularisation of the alleged unauthorised construction. Pursuant to the same, the fourth respondent sought a report from the fifth respondent, who in turn, submitted Ext.P3 report stating that there was no serious violation in the construction of the building and the same could be regularised on accepting compounding fees.
3. The grievance of the petitioner is that the fourth respondent without considering Ext.P3 report and without considering the relevant provisions of the Kerala Municipality Building Rules submitted Ext.P4 stating that the construction is against the provisions of Section 220(b) of the Kerala Panchayat Raj Act and Rules 61 and 62(3) of the Kerala Municipality Building Rules as it violates the regularisation Criteria Nos.1 and 3 as per Appendix I of the Rules. Based on Ext.P4, the third respondent issued Ext.P5 rejecting the petitioner's application for regularisation. It is with this background, the petitioner has approached this Court.
4. The first respondent filed a counter wherein they have re- iterated the stand that the construction violates the regularisation Criteria Nos.1 and 3 as per Appendix I of the Rules. They have contended that the construction was clearly in violation of Rules 61 and 62(3) of the Kerala Municipality Building Rules.
5. The fifth respondent also filed a counter almost in tune with the counter of the first respondent.
6. Arguments have been heard.
7. The definite case of the petitioner is that the fifth respondent, who is the Town Planner, has categorically reported that there were no serious violation of the Building Rules and the same could be regularised on accepting the compounding fees. According to the petitioner, there is no violation of Section 220(b) of the Kerala Panchayat Raj Act and Rule 61 of the Kerala Municipality Building Rules. According to him, Ext.P5 issued by the third respondent was on the basis of an illegal, incorrect and improper recommendations of the fourth respondent.
8. It is also relevant to note that the only official who visited the spot was the fifth respondent. The petitioner's request was rejected by Ext.P5 on the basis of Ext.P4 recommendations which evidently was not based on an independent enquiry conducted by the fourth respondent, so as to come to the conclusion that the petitioner's building violates Section 220(b) of the Kerala Panchayat Raj Act.
9. As per Appendix-I of the Rules, the unauthorised construction should be considered for regularisation subject to satisfying all the criteria provided in the Appendix. As per Clause III of the Appendix I, open space/yards from the boundaires of the plot to the construction and the minimum clearance with access to the building and the plot as well as the width of the street giving access to the plot from the main street should not be less than 2/3rd of the mandatory requirement as per the Building Rules. In otherwords, if the building has to be regularised as per the Rules, the space provided should be 2/3rd, stipulated as per Rules 62(2) and 62(3) of the Municipality Building Rules.
10. The definite case of the petitioner is that since he has provided more than the 2/3rd of the mandatory values required as per the Kerala Municipality Building Rules, his building could be regularised. None of the respondents have a case that the petitioner has not left so much space. It is also relevant to note that Appendix I applies only to the buildings which come within the municipal area. In the present case, the petitioner's building is coming within the panchayat area. Therefore, Appendix II is applicable.
11. I would hasten to add that as per Section 5(2) of the Rules, while considering the application for regularisation of unauthorised building, the 3rd and 4th respondent should have considered the report and recommendations of the 5th respondent. On a perusal of Exts.P4 and P5, it is revealed that they have not considered Ext.P3 report of the 5th respondent. The 5th respondent has categorically reported that there was no serious violation of the Building Rules and the building could be regularised on acceptance of compounding fees. It is also relevant to note that in the case on hand the deviations as pointed would not endanger public safety and the deviations are not intentional.
12. The learned Senior Government Pleader as well as the learned Standing counsel for the respondent Panchayat would submit that the order under challenge is subject to review and, therefore, the writ petition is maintainable. However, this Court is of the definite view that it is not necessary to drive the petitioner to the risk of contesting the case once again before the respondents.
On a consideration of the entire facts and circumstances of the case, the Writ Petition is disposed of quashing Exts.P4 and P5. The respondents are directed to allow Ext.P2 application submitted by the petitioner for regularisation of construction of the building, as the respondents 3 and 4 cannot overlook the report of the 5th respondent while considering the application for regularisation. This exercise shall be completed within a period of three months from the date of receipt of a copy of this judgment.
krj Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE /True Copy/ P.A to Judge