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Judgment
N. Nagaresh, J
The writ petitioner seeks to quash Ext.P3 order of rejection of regularisation of building and to direct the 3rd respondent to regularise the building in
question. The petitioner further seeks to direct the 1st respondent to provide building number considering Ext.P2.
The petitioner constructed two shop rooms in his property of 11.80 Ares comprised in Re-survey No.148/6 of Cherunniyoor Village,
Thriuvananthapuram District. Permission from the Panchayat was not obtained before construction. After the construction, the petitioner submitted an
application along with building plan before the 1st respondent-Secretary to Panchayat and sought to assign building number to the new construction.
The 1st respondent instead of numbering the building, directed the petitioner to submit an application for regularisation of the building, contends the
petitioner. The petitioner accordingly submitted an application for regularisation.
The 1st respondent forwarded the application to the 2nd respondent-Town Planner. The 2nd respondent informed the 1st respondent that the
application for regularisation submitted by the petitioner is not in accordance with the relevant rule. The petitioner states that he submitted another
application after curing all the defects pointed out by the Town Planner along with a building plan. The petitioner states that the 2nd respondent has
forwarded the application along with his report to the 3rd respondent, who is the Secretary to Government, Local Self Government Department. The
3rd respondent rejected the claim for regularisation on the ground that the construction of the building violates Rule 3(2)(e) of the Kerala Panchayat
Building (Regularisation of Unauthorised Constructions) Rules, 2010 and Section 220(b) of the Kerala Panchayat Raj Act, 1994, as per Ext.P3.
The petitioner contends that the construction of the building in question was in the year 1997 and the Building Rules came into force only in the year
2010. The Panchayat has issued Ext.P4 certificate stating that the building in question was constructed before the promulgation of relevant building
rules. The petitioner states that Ext.P3 therefore is absolutely illegal and unsustainable. Section 220(b) of the Panchayat Raj Act and Rule 3(2)(e) of
the Kerala Panchayat Building (Regularisation of Unauthorised Constructions) Rules, 2010 do not apply to this case. In the circumstances, the 3rd
respondent is compellable to regularise the building of the petitioner.
The 2nd respondent-Town Planner contested the writ petition filing counter affidavit. The 2nd respondent stated that the petitioner's building was
stated to be constructed in 1997 and the KMBR, 1999 was made applicable to all Panchayats after 06.06.2007. Even though the building was
constructed before 06.06.2007, constructions were required to be made in accordance with the Kerala Panchayat Raj Act, 1994. As the building
violates Section 220(b) of the said Act, which came into force in the year 1994, the construction is illegal.
I have heard the learned counsel for the petitioner, the learned Standing Counsel for the 1st respondent and the learned Government Pleader
representing respondents 2 and 3 and.
It is not in dispute that the petitioner has made the construction subsequent to the year 1994, in which year the Kerala Panchayat Raj Act came into
force. As per Section 220(b) of the Kerala Panchayat Raj Act, no person shall construct any building or structure other than a compound wall in any
land abutting any national highway, State High way, District Roads, or any other roads notified by the Village Panchayat within a distance of 3 metres
from the boundary of the land abutting the road. The respondents would submit that the construction made by the petitioner offends Section 220(b) of
the Act, 1994.
It may be true that when the petitioner started the construction of a building, the KMBR, 1999 was not extended to the Panchayats, nor the Kerala
Panchayat Building Rules were in existence. Therefore, even though buildings rules were not applicable to the petitioner, Section 220(b) of the Kerala
Panchayat Raj Act was in the statute book and the petitioner could not have constructed the building ignoring the mandate of Section 220(b).
Therefore, the 1st respondent was justified in not numbering the building.
According to the 2nd respondent, as per Rule 7(1) of the Kerala Panchayat Building (Regularisation of Unauthorised Constructions) Rules, 2010,
any person aggrieved by an order under the provisions of the Rules can file a petition for review to the Government against rejection of request for
regularisation. The petitioner has not availed the said remedy.
In the circumstances, the writ petition is disposed of permitting the petitioner to invoke Rule 7(1) of the Kerala Panchayat Building (Regularisation of
Unauthorised Constructions) Rules, 2010, by filing a petition for review before the 3rd respondent. If the petitioner prefers such a petition for review
within a period of one month, the 3rd respondent shall consider such petition for review on its merits, condoning delay if any on the part of the
petitioner to file petition for review since the petitioner has been bona fide prosecuting this case before this Court.