Dr. Jithu George v. Aluva Municipality (represented by its Secretary) and Tribunal for Local Self Government Institutions, Thiruvananthapuram

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 WP(C) NO. 10801 OF 2013 ``` ## **`PETITIONER:`** ``` DR. JITHU GEORGE S/O. GEORGE, KODIYIL HOUSE, IRINJALAKUDA, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.M.P.ASHOK KUMAR SRI.S.A.ABDUL SALEEM ``` ## **`RESPONDENTS:`** - **`1 THE ALUVA MUNICIPALITY REPRESENTED BY ITS SECRETARY, ALUVA, PIN-683101.`** - **`2 TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS TRIVANDRUM, PIN - 695001.`** ``` BY ADVS. SRI.MATHEW B. KURIAN ``` ``` SRI. B.S. SYAMANTAK, GP ``` ``` SRI.K.T.THOMAS, SC - R1 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 10801 OF 2013 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 10801 of 2013** **---------------------------------------------Dated this the 12[th] day of February, 2024** ## **JUDGMENT** The above writ petition is filed with the following prayers: “i. Issue a writ of certiorari or other appropriate writ or order quashing Ext. P 10 order passed by the Tribunal for Local self Government institutions. ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the Tribunal For Local Self Government Institutions, Thiruvananthapuram to consider Ext. P-9 appeal filed by the petitioner in accordance with law; iii. Direct the tribunal for self government institutions to condone the delay in filing Ext. P-9 appeal. ``` WP(C) NO. 10801 OF 2013 ``` 3 iv. Declare that Rule 8(3) of Tribunal for Local Self Government Institutions Rules in not a bar to the Tribunal in condone the delay. v. issue a writ of mandamus or other appropriate order directing the respondent to regularize the deviation if any in the extension of the existing building numbered 17/484-and 17/485 situated in Aluva Municipality. vi. issue a writ of certiorari or other appropriate writ or order quashing Ext. P-7 order passed by the secretary. vii. Pass such other order, as this Hon'ble court deems fit, proper, and necessary in the circumstances of the case.”[SIC] 2. Petitioner along with his wife purchased an item of property in Aluva Municipality. It is the case of the petitioner that there were two old dilapidated building in that land. Petitioner submitted a plan for the renovation of the buildings. Municipality approved the Building Plan and issued building permit. Thereafter the petitioner completed the 4 ``` WP(C) NO. 10801 OF 2013 ``` construction of the building as per the approved building plan, is the submission. But notice was issued by the respondent alleging that there are certain projection in violation of the building permit. According to the petitioner, he demolished main slab and a portion of the building based on the above notice. But it is submitted that, because of political reasons the Secretary without conducting any inspection with notice to the petitioner issued another notice to the petitioner. According to the petitioner, there is no violation and the demolition notice was issued without any basis. The contention of the petitioner is that, he constructed the building strictly in accordance with the building permit and plan. But the Municipality issued an order under Sec. 406 of the Kerala Municipalities Act ordering demolition of the building. Thereafter, the petitioner filed an appeal before the Tribunal for Local Self ``` WP(C) NO. 10801 OF 2013 ``` 5 Government Institutions. The Tribunal allowed the appeal and set-aside the demolition order. Thereafter the Secretary again issued a demolition order alleging new violation, is the submission. Challenging Ext.P7 demolition order, the petitioner filed a writ petition before this Court. Since the petitioner has got a right of appeal, this Court had not entertained the writ petition. Even though the writ appeal was filed, the same was also not entertained. Hence the petitioner filed Ext.P9 appeal before the Tribunal. The Tribunal dismissed the matter stating that there is delay in filing the appeal. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Standing counsel appearing for the 1[st] respondent. 4. The counsel appearing for the 1[st] respondent took a preliminary objection regarding 6 ``` WP(C) NO. 10801 OF 2013 ``` the maintainability of the writ petition against Ext.P10 order of the Tribunal. The counsel submitted that, in **Thomas Thomas v. Kottayam Municipality** [2008 (3) KLT 964], the learned Single Judge had taken a view that once an appeal before the Tribunal has been dismissed on the ground of delay, it is not open for the appellant to invoke the power under Article 226 of the Constitution of India and bypass statutory restrictions and get the delay condoned. But the counsel appearing for the petitioner submitted that, without considering the legality of Ext.P10 order this Court can consider the validity of Ext.P7 independently invoking the powers under Article 226 of the Constitution of India. The counsel also relied on the judgment of the Division Bench of this Court in **Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd.** [2016 (2) KLT 219]. ``` WP(C) NO. 10801 OF 2013 ``` 7 5. This Court considered the contentions of the petitioner and the Standing counsel appearing for the Municipality. There is some force in the argument of the 1st respondent that there is nothing to interfere with Ext.P10 order passed by the Tribunal. The Tribunal held that the appeal is time barred and the delay cannot be condoned because it is beyond the powers of the Tribunal. But it is a fact that the petitioner was prosecuting a writ petition before this Court and thereafter a writ appeal against Ext.P7 order and subsequently an appeal filed against the same order before the Tribunal. In **Ramapuram Grama Panchayat** 's case (supra), the Division Bench of this Court observed that, in an extra ordinary circumstance which requires consideration by a Constitutional court, a different view can be taken in the matter and in such circumstance, the court can not dismiss ``` WP(C) NO. 10801 OF 2013 ``` 8 merely for the reason that the appeal was dismissed on the ground of delay. It will be better to extract the relevant portion of the above judgment: “21. The learned Single Judge considered the matter in great detail. In Thomas Thomas (supra), in fact this Court was considering an almost similar issue. That was a case in which petitioners filed an application for building permit at a stage when they were issued with notices for demolition of the structure. They filed appeal before the Tribunal for Local Self Government Institution challenging the notice of demolition. As per directions of the Tribunal, again an order was passed by the Municipality which was again challenged in appeal before the Tribunal. Again the matter was remitted back and again the Municipality passed an order to demolish the structure. The petitioner submitted a representation to the Municipality to recall the order of demolition which was not considered. The petitioner preferred a writ petition before this Court which was disposed holding that his remedy is to prefer an appeal before the Tribunal. Petitioner therefore preferred an appeal before the Tribunal with an application to condone delay which came to be rejected on the ground of delay. It is seeking to quash the said order that the present writ petition ``` WP(C) NO. 10801 OF 2013 ``` 9 was filed. The learned Single Judge placing reliance on Krishna Poduval (supra), which was followed in Krishnan T and Others v. State of Kerala (ILR 2007 (1) KER 233), held that the writ petition has to be dismissed. But in this case, the learned single Judge found that the petitioner was seeking to enforce his fundamental right to carry on business as provided under Article 19(1)(g) of the Constitution of India. Petitioner's contention is that the rejection of the permit/licence was not on account of any valid reason which would have come to the aid of the Panchayat in terms of Section 233, whereas they have virtually entrenched into the area which are to be considered by other competent authorities and had rejected the application. Therefore, this is a case where the petitioner was not challenging the rejection of licence on factual material but taking a contention that the Panchayat has rejected the licence based on matters extraneous for consideration by the Panchayat and therefore, it violates Art.19(1)(g) of the Constitution of India. Viewed in that manner, and as rightly held by the learned Single Judge placing reliance on the judgment in Olga Tellis (supra), there was justification in entertaining the writ petition. The petitioner has taken a specific ground in the writ petition, clearly indicating the manner in which the Panchayat has rejected the licence, ignoring the ``` WP(C) NO. 10801 OF 2013 ``` 10 expert opinion given by the competent authorities. The learned Single Judge therefore having found that this is an extra ordinary circumstance which requires consideration by a Constitutional Court, we do not think that a different view is to be taken in the matter and therefore, we are of the view that the writ petition was rightly entertained by the learned Single Judge and cannot be dismissed merely for the reason that the appeal was dismissed on the ground of delay. In fact, each case will have to be decided on its own facts. Thomas Thomas (supra) was decided on its own facts. It is trite that power of Constitutional Court cannot be denuded merely for the reason that, alternate remedy could not be availed by the suitor. ” (Underline supplied) 6. In the peculiar facts and circumstances of this case, this Court considered the validity of Ext.P7 order. I am of the considered opinion that, Ext.P7 is not a speaking order. In Ext.P7, it is only stated that there is violation of Rules 100, 24, 25 and 26 of the Kerala Municipality Building Rules (K.M.B.R). The details of the illegal construction is also not 11 ``` WP(C) NO. 10801 OF 2013 ``` mentioned. Why there is violation of Rules, 100, 24, 25 and 26 of the K.M.B.R is not specifically mentioned in Ext.P7 order. I am of the considered opinion that, Ext.P7 is not a speaking order. For that simple reason, I am of the opinion that Ext.P7 is to be set aside in the peculiar facts and circumstance of the case, even though the challenge against Ext.P7 is not entertained by the Tribunal as per Ext.P10 order. Therefore, this Writ petition is disposed of in the following manner: 1. Ext.P7 is set aside. 2. The 1st respondent is directed to reconsider the matter, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a stamped certified copy of this judgment. ``` WP(C) NO. 10801 OF 2013 ``` 12 3. Till final orders are passed, the status quo as on today shall continue. 4. I make it clear that I have not considered the matter on merit and the 1st respondent is free to - pass appropriate orders, in accordance with law. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO. 10801 OF 2013 ``` 13 ## **`APPENDIX OF WP(C) 10801/2013`** ``` PETITIONER ANNEXURES ``` ``` EXT.P9 PHOTOCOPY OF THE APPEAL MEMORANDUM WITHOUT ANNEXURE ``` ``` EXT.P1 PHOTOCOPY OF THE BUILDING PERMIT DATED 19-1-11 ``` ``` EXT.P2 PHOTOCOPY OF THE ORDER DATED 11-5-11 ``` ``` EXT.P3 PHOTOCOPY OF THE 2ND NOTICE DATED 16-6-11 ``` ``` EXT.P4 PHOTOCOPY OF THE DEMOLITION ORDER DATED 17-10-11 ``` ``` EXT.P5 PHOTOCOPY OF THE ORDER PASSED BY THE TRIBUNAL IN APPEAL NO. 37/12 ``` ``` EXT.P6 PHOTOCOPY OF THE ORDER ISSUED BY THE SECRETARY ON 8-6-12 ``` ``` EXT.P7 PHOTOCOPY OF THE DEMOLITION ORDER DATED 18-9-12 ``` ``` EXT.P8 PHOTOCOPY OF THE JUDGMENT IN WPC NO. 27066/12 ``` ``` EXT.P10 PHOTOCOPY OF THE ORDER DATED 5-3-12 PASSED BY THE TRIBUNAL ``` ## `RESPONDENTS EXHIBITS : NIL` ``` //TRUE COPY// PA TO JUDGE ```