IMPORTANT POINT
There is no unauthorised construction to be regularised, as the Bitumen Mixing Plant has been removed even before the consideration of the application. The stand of the Panchayath is that unauthorised construction must exist in all respect at the time of filing of the application, consideration and approval by the Town Planner.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. The short issue, in this case, is about the legality of the decision on application for regularisation filed under the Kerala Panchayath Building (Regularisation of Unauthorised Construction) Rules, 2018 (hereinafter referred to as the “Regularisation Rules 2018”). The application submitted by the petitioners has been rejected by the Panchayath. Challenging this decision, the petitioners approached this Court.

2. The first petitioner appears to have established the Hot Mix Plant without permission from the Panchayath. Thereafter, he submitted an application for building permit. He was informed the construction can be regularised only under Rule 134 of the Kerala Panchayath Building Rules, 2011 (hereinafter referred to as the “Building Rules 2011”) and taking note of hazardous nature of occupancy, layout approval from the Chief Town Planner is required under Rule 61 of the said Building Rules.

3. The petitioners challenged the proceedings of the Panchayath before this Court. This Court upheld the decision of the Panchayath. In the reported decision of the Division Bench in Jilmon John and Another vs. Manakad Grama Panchayath, Idukki and Others, 2017 KHC 163, it was held that the proceedings of the Panchayath is legal and at para-69 of the judgment it was observed as follows:

69. As discernible from Ext.P16, the construction of the hot mix plant, building, etc. has already been completed. Since, as per Note (ii) to Rule 34(2) of the Building Rules, minor occupancy incidental to operations in another type of occupancy shall be considered as part of the main occupancy and shall be classified under the relevant group for the main occupancy, the application for building permit made by the 1st appellant falls under Group I hazardous occupancy. Since the area of the plot exceeds one hectare, layout approval by the Chief Town Planner is required as provided under Rule 61 of the Building Rules. Accordingly, by Ext.P16 proceedings of the 2nd respondent, the 1st appellant was directed to resubmit the application after rectifying the deficiencies/defects noted therein, with reference to the mandatory requirements under Rule 61 of the Building Rules. Similarly, vide Ext.P19 proceedings of the 2nd respondent, the 1st appellant was informed that, since he has already made permanent construction of the plant, building, etc. in the plot in question, such constructions will have to be regularised as per W.A. No. 2462 of 2016, 44 the provisions of Rule 134 of the Building Rules and the Panchayat has to issue occupancy and assign building number, before considering his application for D&O licence.

The judgment of the Division Bench was rendered on 13.2.2017. Thereafter, the Government of Kerala issued Regularisation Rules 2018 as above to regularise unauthorised constructions carried out on or before 31.7.2017. The application has to be submitted within 90 days of the date of notification of the Rules. The petitioner applied within time. The notification came into force on 15.2.2018.

4. As per the Building Rules 2011, there must be width of 7 mts. access to the plot. The available width of access available to the first petitioner's Plant is below 6 mts. His unauthorised construction cannot be regularised except through the Regularisation Rules 2018.

5. The first petitioner appears to have made a huge investment in erecting this Bitumen Mixing Plant. Taking note of the delay involved, the first petitioner removed the Bitumen Mixing Plant to another Panchayath. The Panchayath considered his application. The Secretary conducted an inspection and found that there is no Bitumen Mixing Plant exist in the plot and, therefore, the application cannot be forwarded for regularisation to the District Town Planner.

6. The structure now remains in the plot is essentially part of the Bitumen Mixing Plant. The Bitumen Mixing Plant is removable. The point, therefore, to be considered is whether in the absence of Bitumen Mixing Plant, w