RAJASEKHARAN NAIR N Vs. ARASI VIJAYKUMAR

JUDGEMENT

(1.) The common appellant in these appeals is the third respondent in WP (C) No. 15555 of 2007. The first respondent is the petitioner and respondents 2 and 3 are respondents 1 and 2 respectively therein. WA No. 314 of 2008 arises from the judgment delivered by the learned Single Judge on 12/11/2007 allowing the writ petition and WA No. 1153 of 2008 arises from the order passed by the learned Single Judge on 18/03/2008 in IA 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, as per the originals of Ext. R3(a) and R3(b) sale deeds, dated 24/02/1999, 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 26/03/1999. The Secretary, Trivandrum Corporation had in the meanwhile issued Ext. R3(i) provisional order dated 09/03/1999 under S.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 23/06/1999 confirming the provisional order and directing demolition of the building. The appellant challenged these orders by filing an appeal before the State Government under S.509 of the Kerala Municipality Act, 1994. He thereafter filed OP No. 23629 of 1999 in this Court. By judgment delivered on 29/09/1999 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 S.407 of the Kerala Municipality Act, 1994. The said rules came into force on 14/10/1999. In S.407 of the Kerala Municipality Act, 1994 as substituted with effect from 24/03/1999, 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 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 R.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 22/01/2000 the Government rejected the appeal filed by the appellant under S.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 08/09/2000 the Secretary of the Corporation rejected an application submitted by the appellant on 06/11/2000 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 OP No. 33093 of 2000 in this Court. By Ext. P2 judgment delivered on 27/03/2001 the said writ petition was dismissed.