INSTITUTE OF SOCIAL WELFARE Vs. STATE OF KERALA

JUDGEMENT

(1.) In all these Writ Petitions, challenge is regarding the power of the Government under the-Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999 (for short 'the Rules'). The above Rules grant power to the Government for regularising the unauthorised constructions and land developments made in violation of the Building Rules under the Kerala Municipalities Act and Kerala Panchayat Raj Act. It is the contention of majority of the petitioners that the above Rules are invalid and ultra vires of the powers of the Government. Some of the petitioners approached this Court stating that their applications are not considered as per the provisions of the Rules for no reason at all. We note that the above Rules are made only for regularising the unauthorised constructions and land development earned out before 15-10-1999. The power of the Government to make such provisions are upheld by the Apex Court in Consumer Action Group and Anr. v. State of Tamil Nadu and Ors. . Further, unbridled power is not given to the Government as per the Rules in regularising the unauthorised constructions. As soon as the application is filed, inspection and verification have to be given by the Town Planner and give a detailed report to the Government and Government is to consider the application after examining the plans and other documents and recommendations of the Secretary of the local authority and the Town Planner and then issue orders. Detailed procedure for disposal of the applications are mentioned in Rule 5 of the Rules and there are enough guidelines also for passing such orders. Sub-rule (7) of Rule 5 is as follows:

(2.) In Consumer Action Group's case (supra), the Apex Court also held that apart from public safety, public convenience and public health also should be considered. It is also held that the order regularising such unauthorised constructions should be a speaking order considering all aspects of the case and it should be exercised very carefully and with great circumspection. The Apex Court held as follows:

(3.) Again, it was observed as follows: