Institute of Social Welfare v. State of Kerala, Reported in 2006 (2) KLT 871 (2006)

 N THE KERALA HIGH COURT

Chief Justice V.K.Bali and Justice J.B.Koshy

Reported in 2006 (2) KLT 871.

Institute of Social Welfare

vs

State of Kerala.

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. 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. 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.

Fecha del Recurso: 
2006
Países y Regiones: 
Tipo de recurso: 
Tema de recursos: