TAJUDIN Vs. DISTRICT COLLECTOR KANNUR

JUDGEMENT

(1.) PETITIONER is aggrieved by the order of exemption granted by the first respondent, District Collector, in exercise of powers conferred on him by the Government of Kerala vide G. O. MS. No. 70/95/lad dated 29. 4. 1995. By the said order, Government delegated the power to grant exemption from the kerala Building Rules. 1984, hereinafter called the 'rules', and Zoning regulations to the District Collectors in so far as it relates to any building with total floor area not exceeding 500 sq. meters, and with not more than 3 stores. Government also vide circular No. 17814/d1/95/lad dated 29. 4. 1995 issued guidelines to be followed by District Collectors while granting exemption. As per circular, the Municipal secretary/ corporation Secretary or the Panchayat Secretary will forward the applications for exemption to the district/ Regional Town Planner of the Town Planning Department having jurisdiction over the respective Municipal, Corporation or Panchayat area with specifion recommendations of the Secretary. Office of the Town Planner will scrutinise every application and after recording the recommendation of the district/ Regional Town Planner on the application will forward the file to the district Collector for orders. Reasons shall also be recorded for recommending sanction or rejection, as the case may be. District Collector will then pass orders and return the file to the Town Planner for issuing formal orders. District/ Regional Town Planner will approve the draft order as passed by the district Collector unless the letter specifically directs that it is to be approved by District Collector,

(2.) DISTRICT/ Regional Town Planner should scrutinise every application with utmost care with reference to the Rules and only in deserving cases should recommend to the DISTRICT Collector the exemption applied for. Circular also authorises the Chief Town Planner and the Vigilance cell of the Local Administration Department, Secretariat, to inspect the offices of the DISTRICT/ Regional Town Planner periodically and make random check of the applications for exemption, disposed of, to see that the exemption has not been availed of in undeserving cases. It also empowers the DISTRICT collector to review his own orders granting exemption, if a review petition is made to that effect, on valid grounds. Review Petition should also be scrutinised by the DISTRICT/ Regional Town Planner. 2a. Application dated 1. 8. 1995 was submitted by the fifth respondent before the first respondent for exemption under the Rules. Request of the fifth respondent is seen -not accepted by the Kannur Development authority and Azhikode Grama Panchayat. Kannur Development Authority vide their letter dated 4. 8. 1995 informed the said fact to the first respondent. Azhikode grama Panchayat also rejected the request of fifth respondent and sent a letter-dated 18. 10. 1995 to the first respondent. First respondent after considering the entire matter was pleased to reject the application of fifth respondent for exemption vide his letter dated 27. 11. 1995 since the proposed construction is in violation of R. 15 (3) (a) and (b ).

(3.) COUNTER affidavit has been filed on behalf of the fifth respondent. Fifth respondent submitted that the District Collector is perfectly justified in issuing the order of exemption, which is in compliance with S. 410 of the Kerala Municipalities Act, 1994, hereinafter referred to as the 'act'. According to him, the Rules do not bar filing a review petition under R. S. It was pointed out that first respondent had only rectified material irregularity in this earlier order. It was argued that power has been properly delegated to the first respondent. However, petitioner is not entitled to invoke the jurisdiction of this Court, since he has already moved the Civil court by filing O. S. No. 133 of 1996 for a permanent injunction against fifth respondent from trespassing into his property and proceeding with the construction of the building in violation of the Rules.