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2006 DIGILAW 200 (KER)

Institute of Social Welfare v. State of Kerala

2006-03-22

J.B.KOSHY, V.K.BALI

body2006
Judgment :- J.B. Koshy, J. In all these Writ Petitions, challenge is regarding the power of the Government under the Kerala Building (Regularization of Unauthorized Construction and Land Development) Rules, 1999 (for short 'the Rules'). The above Rules grant power to the Government for regularizing the unauthorized 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 regularizing the unauthorized constructions and land development carried 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 another v. State of Tamil Nadu & Ors. (AIR 2000 SC 3060). Further, unbridled power is not given to the Government as per the Rules in regularizing the unauthorized 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 R.5 of the Rules and there are enough guidelines also for passing such orders. Sub-r.(7) of R.5 is as follows: “(7) No unauthorized construction shall be regularized if the construction so carried out affects adversely the proposals of any sanctioned General Town Planning Scheme (Master Plan) or Detailed Town Planning Scheme for the area or if the construction grossly violates any safety provisions in the Building Rules for the time being in force or any safety condition specified in the exemption order or permit." In Consumer Action Group 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 regularizing such unauthorized constructions should be a speaking order considering all aspects of the case and it should be exercised very carefully and with great circumspection. It is also held that the order regularizing such unauthorized 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: "29. Whenever any statute confers any power on any statutory authority including a delegate under a valid statute, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of powers must stand the test to (sic) judicial scrutiny When such a wide power is given to any statutory authority including a delegate then it is obligatory on the part of such authority to clearly record its reason in the order itself for exercising such a power. Application of mind of such authority at that point of time could only be revealed when order records its reason. Even if Section is silent about recording of reason, it is obligatory on the Government while passing orders under S.113 to record the reason." Again, it was observed as follows: "30. When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act land while granting relief has to equate the resultant effect of such a grant on both viz., the public and the individual. So long it does not materially effect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public, health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may be in a given case, be justified but in no case effecting the public at large. But where it erodes the public safety, public convenience, public, health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may be in a given case, be justified but in no case effecting the public at large. So every time Government exercises its power it has to examine and balance this before exercising such a power.” So, orders passed by the Government under the above Rules should be a speaking order and Government should see that such orders of exemption shall not affect public health, public safety and public convenience and orders can be given only for very valid reasons. Therefore, any application or any review petition pending before the Government shall be considered by the Government taking into the directions of the Supreme Court quoted above. With that direction, these writ petitions are disposed of. C.M.P.Nos. 1635, 25960 and 40171 of 2000 in O.P.No. 16295 of 1999, C.M.P.No.48124 of 2000 in O.P.No.6615 of 2000, C.M.P.No. 12500 of 2000 in O.P.No.7500 of 2000 and C.M.P.No.16687 of 2000 in O.P.No.10018 of 2000 will not survive.