THE KERALA BUILDING (REGULARISATION OF UNAUTHORISED CONSTRUCTION) RULES, 2010

[THE KERALA BUILDING (REGULARISATION OF UNAUTHORISED CONSTRUCTION) RULES, 2010][1]

PREAMBLE

In exercise of the powers conferred by section 565 read with section 407 of the Kerala Municipality Act 1994 (20 of 1994) and section 254 read with section 235 AB of the Kerala Panchayat Raj Act, 1994 (13 of 1994) and in supersession of the Kerala Building (Regularisation of Unauthorised Construction and Land Development) Rules, 1999, issued under notification No. G.O.(Ms) 196/99/LSGD dated 14th October, 1999, and published as S.R.O. No. 827/99 in the Kerala Gazette No. 1877 dated 15th October, 1999, the Government of Kerala hereby make the following rules, namely:-

Rule - 1. Short title, commencement and applicability.

(1)     These rules may be called the Kerala Building (Regularisation of Unauthorised Construction) Rules, 2010.

(2)     These rules shall come into force at once.

(3)     These rules shall apply to all unauthorised constructions carried out or completed on or before the 31st day of December 2008 in any Municipal area or in any Grama Panchayat area.

Rule - 2. Definitions.

(1)     In these rules, unless the context otherwise requires,-

(a)      "Act" means the Kerala Municipality Act, 1994 (20 of 1994) or the Kerala Panchayat Raj Act, 1994 (13 of 1994) as the case may be;

(b)      "Building Rules" means the Kerala Municipality Building Rules, 1999;

(c)      "Licensee" means the Architect, Building Designer, Engineer, Town Planner, Supervisor etc. registered under Chapter XXI of the Building Rules, who can certify and perform functions as per Appendix L of the Kerala Municipality Building Rules, 1999;

(d)      "Secretary" means the Secretary of a Municipality or a Grama Panchayat as the case may be;

(e)      "Structural Engineer" means a Civil Engineer with post graduate degree in Structural Engineering with minimum five years' experience in structural design and supervision;

(f)       "Town Planner" means the Town Planner or the Senior Town Planner of the Department of Town and Country Planning having jurisdiction over the District concerned.

(g)      "Town Planning Act" means the Town Planning Act 1108 and/or the Madras Town Planning Act 1920 and/or the Travancore Town and Country Planning Act 1120 ME as the case may be;

(h)     "Town Planning Scheme" means any Town Planning Scheme prepared under the Town Planning Act(s) in force;

(i)       "Unauthorised construction" means any construction or reconstruction carried out or completed on or before the 31st day of December 2008, which the Secretary has no power to regularise under Section 406 of the Kerala Municipality Act, 1994 or Section 235W of the Kerala Panchayat Raj Act, 1994 and Chapter XX of the building rules.

(2)     Words and expressions used and not defined in these rules, but defined in the Act or the Building Rules shall have the same meaning assigned to them in the Act or the Building Rules.

Rule - 3. Submission of application for regularisation of unauthorisedconstruction.

(1)     Application for regularisation of unauthorised construction shall be submitted to the Secretary concerned in Form-1 appended to these rules, within [2][180 days] of the date of notification of these rules in the Kerala gazette.

(2)     The application shall be accompanied by the following documents namely:-

(a)      Receipt for payment of application fee, if any paid to the Municipality or the Grama Panchayat as per Rule 4 of these rules;

(b)      Four copies each of the floor plans, elevations and sections of the building(s) constructed, the site plan and wherever applicable the service plans, parking plans, drawn as provided in sub rule (9) of rule 7 of the Building Rules and specifications thereunder,-

(i)       duly signed by the owner;

(ii)      certified by licensee, to the effect that "all the measurements are verified and the drawings conform to actual constructions made in the site" and

(iii)     certified by a Structural Engineer to the effect that the unauthorised construction(s) is/are structurally stable in the case of highrise building, telecommunication tower and building if any above which such telecommunication tower is erected:

Provided that in the case of huts, a site plan showing the outline of the built-up area, the boundaries of the plot and nearby streets, duly signed by the owner is only required:

Provided also that in the case of constructions under approved schemes as mentioned in rule 73 of the Building Rules with total floor area of building upto 60 sq. metres and number of floors limited to two and a stair room, where the construction has to be done by individuals separately, a site plan showing the outline of the built-up area, the boundaries of the plot and nearby streets, duly signed by the owner only is required:

Provided further that the unauthorised construction applied for regularisation shall be indicated in red colour outline in all the drawings submitted.

(c)      Copy of plans approved and/or permit issued, if any, by the Secretary as per the provisions contained in the Act or Building Rules;

(d)      Documents to prove ownership of land;

(e)      Proof of having completed or carried out the construction on or before the 31st day of December 2008 viz.;

(i)       any dated evidence issued by the Municipality or Grama Panchayat or Government with respect to the unauthorised construction and/or any similar documentary evidence to this effect.

and

(ii)      photographs of the unauthorised building signed by the owner, with dated certificate of the licensee to the effect that "this is the unauthorised building under reference which was carried out on or before the 31st day of December 2008";

(f)       Proof of having stopped the construction before 31st December 2008 on account of any communication from the Municipality or Grama Panchayat or Government directing to stop the unauthorised construction viz.;

(i)       any dated evidence issued by the Municipality or Grama Panchayat or Government with respect to the unauthorised construction and/or any similar documentary evidence to this effect directing the applicant/owner to stop the unauthorised construction

and

(ii)      photographs of the unauthorised building signed by the owner, with duly filled dated certificate of the licensee to the effect that "this is the unauthorised building under reference which was carried out on or before the 31st day of December 2008 and construction was stopped immediately on receipt of the written communication number:.......................................... dated.................... from......................... Panchayat/Municipality/Government, directing to stop the unauthorised construction";

(g)      Orders if any, granting exemption from the provisions of the Kerala Building Rules, obtained earlier; and

(h)     Details of action, if any, taken by the Municipality or Grama Panchayat concerned against this unauthorised construction.

(i)       Documentary evidence if any to prove that the unauthorised construction was commenced prior to enforcement of Kerala Municipality Building Rules in the case of Grama Panchayats, if applicable.

Rule - 4. Application fee.

Application fee shall be paid to the Municipality or Grama Panchayat along with the application for regularisation of unauthorised construction as indicated below:-

Provided that the area for this purpose shall be the total floor area of all floors of the unauthorised building(s).

Rule - 5. Procedure for disposal of the application.

(1)     The Secretary shall, verify the application, inspect or cause to inspect the location, site and the buildings and after detailed verifications and scrutiny, prepare detailed report in Form I appended to these rules duly signed in quadruplicate stating:-

(a)      whether the unauthorised construction was commenced prior to enforcement of the Kerala Municipality Building Rules or after the commencement of the Kerala Municipality Building Rules in the case of Grama Panchayats;

(b)      whether the unauthorised construction was carried out or completed on or before 31st day of December 2008 or not;

(c)      details of any building permit issued earlier, any conditions stipulated therein and reference to any orders granting exemption from the Kerala Building Rules, 1999 or Town Planning Scheme, any regularisation granted earlier and any other relevant details;

(d)      the extent of violation of the provision of Building Rules and Town Planning Schemes in force, if any;

(e)      the extent of violation of the provisions under the Ancient Monuments and Archaeological Sites and Remains Act 1958 and rules 1959 and the Kerala Conservation of Paddyland and Wetland Act 2008 or any notification issued under Coastal Zone Regulations by the Ministry of Environment and Forests, Government of India;

(f)       details of violations if any with respect to the criteria for regularisation as per Appendix I or Appendix II to these rules as the case may be;

(g)      The compounding fee as per Appendix III to these rules, to be remitted in case regularisation is allowed with detailed calculation note and;

(h)     Specific recommendations for regularisation with reasons:

Provided that, for the purpose of these rules, in the case of Grama Panchayats, if the Secretary is not satisfied after enquiry and appreciation of evidence that the unauthorised construction was commenced prior to enforcement of the Kerala Municipality Building Rules as in item clause (a) above, the construction shall deemed to be commenced when the building rules were in force and he shall note the reason thereof in his detailed report.

(2)     (a) The Secretary shall forward his detailed report appended to Form I in triplicate along with the application to Government through Town Planner within 45 days from the date of receipt of application in the case of Municipal Corporations and within 30 days in other cases.

(b) The Town Planner shall consider the technical aspects of the report of the Secretary and shall forward the application to the Government with his recommendation through the Chief Town Planner within 30 days from the date of receipt of application, together with the report of the Secretary in duplicate, if they are in order. The Town Planner may, if necessary, inspect or cause to inspect the location and/or site and/or the buildings.

(c) The Chief Town Planner shall consider the technical aspects of the report and recommendations of the Town Planner and shall forward the application to the Government with his recommendation within 30 days from the date of receipt of application, together with the reports of the Secretary and recommendations of the Town Planner.

(d) The Government, after examining the reports of the Secretary and the technical recommendations of the Town Planner and the Chief Town Planner and considering the merit of the application, shall issue orders according sanction to the Secretary for regularisation, with or without conditions or decline regularisation and forward the same to the Secretary concerned, with copy to Town Planner. Any Government order according sanction for regularisation shall specify,-

(i)       the name of applicant, survey number/resurvey number of the land, occupancy of the building(s), total floor area, number of floors in each building(s);

(ii)      conditions if any under which sanction for regularisation is granted;

(iii)     period within which the conditions if any stipulated for regularisation is to be complied with;

(iv)    the amount of compounding fee to be remitted in the Government Treasury;

(v)      the Head of Account to which the compounding fee is to be remitted in the Government Treasury; and

(vi)    the period within which the compounding fee is to be remitted in Government Treasury,

(e) Once the government orders are received, the Secretary shall issue formal orders accordingly on each application, according sanction for regularisation with or without conditions or rejecting the same complying with the Government order; and copies of the said order shall be sent to the applicant. The formal order issued by the Secretary according sanction for regularisation, shall specify items (i) to (vi)as stipulated in sub-clause (d) to sub-rule (2) of Rule 5. The Secretary shall, publish the list of such orders issued in the office notice board every month and in the official website of the Municipality or Grama Panchayat concerned which shall include number and date of the orders issued, together with the name of applicant, survey/Resurvey number(s) and name of village and taluk pertaining to the land, the notice of violations and whether the construction was regularized or not regularised or regularised with conditions.

(3)     It shall be the responsibility of the owner and the engineer or licensee concerned registered under Chapter XXI of the building rules as the case may be, who had issued the structural stability certificate as per the provisions contained in these rules to ensure the structural stability of the building.

(4)     The owner and the licensee shall be equally responsible for the conformity of the drawings to actual constructions made in the site and the structural stability of the unauthorised construction(s). However, in the case of highrise buildings, telecommunication towers and building if any above which such telecommunication tower is erected, the owner and the structural engineer who had issued the structural stability certificate as per these rules shall be responsible for the structural stability of such unauthorised construction(s).

(5)     If the applicant fails to remit the specified compounding fee and/or fails to comply with the conditions on or before the date specified in the regularisation order, the regularization order issued by the Government shall cease to operate from the next day of the said date.

(6)     The Secretary shall maintain a register of all treasury remittances towards compounding fee and shall forward quarterly reports thereon to the Government through the Director of Urban Affairs or Director of Panchayats as the case may be.

(7)     The Secretary shall also maintain a permanent register of all unauthorised constructions regularised under these rules containing details such as name and address of the applicant, survey number(s) and name of village, occupancy, number of storeys, floor area of each floor, violation of rules regularised, number and date of the Government order by which regularisation was granted, amount of compounding fee remitted with challan receipt particulars, conditions, if any, stipulated in the order and action taken and the result thereof.

(8)     Under any circumstances, the compounding fee once remitted, will not be reimbursed.

Rule - 6. Procedure in case the application for regularisation is rejected.

(1)     In case the applicant does not fully comply with any of the condition(s) stipulated in the regularisation order including non-remittance of compounding fee within the time specified, it shall be the responsibility of the Secretary to take appropriate action for the demolition of the building or part there of as the case may be.

(2)     If the owner of any unauthoirsed construction fails to submit any application for regularisation duly filled in the prescribed form with relevant details within the stipulated time or if the application for regularisation is rejected in toto, the Secretary shall take appropriate action for the demolition of such unauthorised construction.

(3)     The Secretary shall have the power to recover the cost for demolition from the owner as if it were arrears of property tax.

(4)     The Secretary shall have the power to initiate prosecution against the owner or the person responsible for the unauthorised construction for not complying with the provisions of the Act or these rules or any orders issued thereunder as per the provisions of the Act.

Rule - 7. Review by Government.

(1)     Any person aggrieved by an order issued under the provisions of these rules, may file a petition for review, to the Government:

Provided that there shall be only one review against any order issued.

(2)     A petition for review under sub-rule (1) shall be presented within thirty days from THE date of service of the order, allowing or rejecting the application.

(3)     When a petition for review has been presented under these rules, the Government may, if found necessary, stay operation of the order, pending consideration of the petition.

(4)     The review petition shall be in transparent paper typed or written in ink, affixed with court fee stamp worth Rs. 5, and shall also contain true copy of the order to be reviewed.

(5)     The Government shall, after considering the review petition, pass appropriate orders there on and forward the same to the Secretary concerned, with copy to Town Planner.

(6)     In case the review petition is rejected, the secretary shall initiate action as provided under rule 6.

(7)     The government may cancel or modify or revise any orders issued earlier under these rules at any time, if found necessary that any building regularised is of serious safety and security concerns.

(8)     The government may, at any time cancel any order issued under these rules, if any wrong information was furnished by the applicant or the licensee who had certified the plans and in application in form I or the structural engineer who had issued structural stability certificate, after hearing the applicant once. Action as laid in rule 6 shall be taken by the secretary in such cases.