HEMALATHA K.V., D/O. LATE KANNAN NAMBIAR Vs. TALIPARAMBA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, OFFICE OF THE TALIPARAMBA MUNICIPALITY, TALIPARAMBA

JUDGEMENT

(1.) The petitioner has approached this Court challenging Ext.P13 order passed by the 5th respondent, whereby, the 5th respondent allowed an application preferred by the 3rd respondent, for regularisation of unauthorised constructions that were put up by the said respondent, in premises adjacent to the premises of the petitioner. The facts in the writ petition would indicate that, acting on a complaint filed by the petitioner, before the 2nd respondent Panchayat, alleging unauthorised constructions effected by the 3rd respondent, the 2nd respondent Panchayat issued Ext.P2 show cause notice dated 30.5.2013 to the 3rd respondent. Although the 3rd respondent submitted a reply to the said show cause notice, the 2nd respondent Panchayat proceeded to issue Ext.P4 stop memo and Ext.P5 notice under Section 406(1) of the Kerala Municipality Act, 1994, to the 3rd respondent, asking her to remove the unauthorised constructions put up in the property. The said notice was followed by Ext.P6 notice, which required the 3rd respondent to remove the unauthorised constructions. Thereafter, pending disposal of a writ petition that was filed by the petitioner in the meanwhile, Ext.P8 final order dated 5.10.2013 was passed against the 3rd respondent, directing the 3rd respondent to demolish the unauthorised constructions that were noticed by the respondent Municipality. It would appear that, against the final order passed by the respondent Municipality, the 3rd respondent preferred an appeal before the Tribunal for Local Self Government Institutions. It is stated that, by an interim order dated 28.11.2013, that was passed in the said appeal, the operation of Ext.P8 final order was stayed by the Tribunal during the pendency of the appeal. Later, by Ext.P10 final order dated 9.1.2015, the Tribunal set aside Ext.P8 order, and directed the respondent Municipality to pass fresh orders in the matter, after affording the 3rd respondent sufficient opportunity to comply with the directions in the notice issued to her, and after hearing the said respondent. Ext.P11 show cause notice dated 5.6.2015 was thereafter issued to the 3rd respondent, pursuant to Ext.P10 order of the Tribunal, directing the 3rd respondent to show cause as to why action should not be initiated against her for demolishing the unauthorised constructions pointed out in the said notice. Apparently, in the meanwhile, the 3rd respondent preferred an application before the respondent Municipality, seeking to regularise the alleged unauthorised constructions that were put up by her. The respondent Municipality, on receipt of the application for regularisation, forwarded the same to the Chief Town Planner, after routing the same through the District Town Planner. The Chief Town Planner appears to have acted upon the application forwarded to him by the respondent Municipality, and together with his recommendations, forwarded the same to the 5th respondent, for passing orders on the application submitted by the 3rd respondent, for regularisation of the unauthorised constructions. Ext.P13 is the order passed by the 5th respondent, regularising the unauthorised construction of the 3rd respondent. In the writ petition, the challenge against Ext.P13 is premised mainly on the ground of non-application of mind by the 5th respondent while passing the said order. It is, in particular, pointed out that the 5th respondent could not have acted upon an application submitted by the 3rd respondent, which itself was defective, in that, it did not contain the necessary particulars as also the documents which were stipulated under the Kerala Building (Regularisation of Unauthorised Construction) Rules, 2014. It is also pointed out that the procedural aspects, such as the conduct of an inspection by the Secretary, before forwarding the application to the Chief Town Planner/Government, were also not complied with by the 5th respondent. It is further pointed out that, the fact that the Tribunal for Local Self Government Institutions had, in the interregnum, already disposed the appeal by passing Ext.P10 order, was not noticed by the 5th respondent, while passing Ext.P13 order, since the latter order makes the directions therein subject to the order to be passed by the Tribunal in the appeal that was stated to be pending before the said Tribunal. The learned counsel for the petitioner would point to the reference in Ext.P13 order, to the pendency of an appeal before the Tribunal, to suggest that there was a patent non-application of mind by the 5th respondent, since, by the time the 5th respondent passed Ext.P13 order, the appeal before the Tribunal has already been finally disposed, and there was no appeal pending consideration before the said Tribunal.

(2.) Counter affidavits have been filed on behalf of 1st and 2nd respondents, 3rd respondent as also the 4th respondent. In the counter affidavit filed on behalf of respondents 1 and 2, the sequence of events, which led to the issuance of Ext.P11 show cause notice to the 3rd respondent, is detailed. In the counter affidavit filed on behalf of the 3rd respondent, Ext.P13 order of the 5th respondent is sought to be justified on the ground that the application submitted by the said respondent was for regularisation of the unauthorised constructions that were pointed out to it by the respondent Municipality, and therefore, the consideration by the 5th respondent was valid, and after taking note of the recommendations of the Chief Town Planner. It is stated that, in Ext.P13 order, as also in the recommendations of the Chief Town Planner, notice was taken of the submission on behalf of the 3rd respondent that, if the pillars that were directed to be demolished, were in fact demolished, it would affect the stability of the first floor of the building. The counter affidavit filed on behalf of the 4th respondent essentially justifies Ext.P13 order for the reasons contained in the said order.

(3.) I have heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2, the learned counsel for the 3rd respondent as also the learned Government Pleader for the 4th respondent. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the complaint of the petitioner against the 3rd respondent generally refers to the alleged unauthorised constructions that were put up by the 3rd respondent in her property, but was essentially motivated by the fact that, during the monsoon season, water from the roof of the porch, that was unauthorisedly constructed by the 3rd respondent, overflowed into the property of the petitioner, thereby, inundating the said property. It is no longer in dispute that the constructions put up by the 3rd respondent, as detailed in Ext.P11 show cause notice that was issued to the said respondent, were, in fact, unauthorised, in the sense that they were in deviation of the building permit that was issued to the said respondent. As a matter of fact, the 3rd respondent has also accepted the same, since, she has preferred an application for regularisation of the said unauthorised constructions before the respondent Municipality. The only issue that arises for consideration in the instant writ petition is whether Ext.P13 order passed by the 5th respondent can be legally sustained, it being the case of the petitioner that, while passing Ext.P13 order, the 5th respondent did take into account the facts that were relevant/germane to a consideration of the issue of regularisation of the unauthorised constructions put up by the 3rd respondent. It is relevant in this context to note that, in Ext.P13 order, the 5th respondent goes by the recommendations of the Chief Town Planner, which, in turn, appear to be based on an application submitted by the 3rd respondent in the year 2014. It is apparent that, in the application submitted in the year 2014, there could have been any reference to subsequent events that transpired in the year 2015, including the disposal of the appeal that was pending before the Tribunal for Local Self Government Institutions, at the instance of the 3rd respondent. I find, therefore, that Ext.P13, to the extent, it does take into account the facts that occurred in 2015, is vitiated by a non-application of mind, and a non-consideration of relevant facts. Taking note of the apprehension of the petitioner with regard to the nuisance that would be caused on account of the unauthorised constructions put up by the 3rd respondent, and with a view to allaying the same, I feel that the ends of justice would be met by disposing the writ petition with the following directions: