JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner had constructed a building in a Panchayat area at a time when Building Rules were not applicable to the Panchayat. After the Building Rules were made applicable, petitioner wanted to construct the first floor and accordingly he submitted Ext. P1 building plan and Ext. P2 is the building permit issued. According to the petitioner, building has already been constructed. In the meantime, the Panchayat was merged with the Municipality. The Municipality has issued a notice Ext. P3 under S. 406(1) of the Kerala Municipalities Act (hereinafter referred as the Act) calling upon the petitioner to demolish the structure on account of violation of the Building Rules as there is no proper set back in regard to the open area as provided under R. 24(4) of the Kerala Municipality Building Rules (hereinafter referred as the Rules). Ext. P5 is the final order by which the petitioner is called upon to demolish the said structure. The petitioner preferred an appeal before the Tribunal for Local Self Government Institutions. Ext. P6 is the order of the Tribunal. Having regard to the facts and circumstances involved in the matter, the Tribunal found that the permit was not in accordance with the Building Rules prescribed and the Municipality has the jurisdiction to direct demolition of the structure. However, the Tribunal directed the petitioner to approach the Municipality for regularisation of the construction as per the scheme applicable.

(2.) The learned senior counsel appearing for the petitioner contended that there is no violation of the Rules as such and the reasons stated for not taking action in terms of S. 406 is bad in law. Further it is contended that R. 24(4) of the Rules does not apply in respect of the construction of the existing ground floor building as the ground floor building was in existence even prior to the commencement of the Rules. In fact R. 24(4) reads as under:

(3.) There are four provisos to the above Rules which provides for certain adjustments on certain conditions which we are not concerned with. Even if the 1st and 2nd provisos are made applicable the minimum depth shall be one metre. It is stated in Ext. P3 that the first floor is not constructed in accordance with the permit conditions since on the northern side of the existing building the set back is only 0.50, the front set back is 2.50. As per the permissible distance of depth it ought to have been 1.20 metres and 3.04 metres respectively. The Tribunal has considered this matter in detail and has formed an opinion that the appellant has admitted about the violations committed by him and that there is slight deviation from the approved plan. According to the petitioner, he was entitled to construct the first floor covering the entire upper portion of the ground floor. The Tribunal found that the appellant could have constructed only on the basis of the approved plan whereas he has encroached into areas which was left as vacant in the approved plan and had made construction. The Tribunal therefore proceeded on the basis that there is nothing illegal on the part of the Municipality in taking proceedings under S. 406(1) of the Act.