M.P. Narayanan Nambisan v Kozhikode Corporation, The Tribunal for Local Self Government Institutions, and V. Radhakrishnan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935 WP(C).No. 3404 of 2013 (A) --------------------------- PETITIONER: ----------- M.P.NARAYANAN NAMBISAN, AGED 71 YEARS, S/O P. KRISHNAN NAMBISAN, KOUSTHUBAM, VENGERI P.O KOZHIKODE - 673 010. BY ADVS.SRI.NIRMAL. S SMT.VEENA HARI RESPONDENTS: ------------ 1. KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY, KOZHIKODE 673001. 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. V. RADHAKRISHNAN NAIR, VAZHAYIL HOUSE, VENGERI P.O, KOZHIKODE 673 010. R3 BY ADV. SRI.YASH THOMAS MANNULLY R BY SRI.K.D.BABU, SC, KOZHIKODE CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3404 of 2013 (A) **A P P E N D I X** PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE ORDER IN APPEAL NO.456/2010 DATED 26.06.2010. EXHIBIT P2: TRUE COPY OF THE APPEAL NO.280/2011. EXHIBIT P3: TRUE COPY OF THE STAY ORDER IN I.A.411/2011 IN APPEAL NO.280/2011 DATED 25.04.2011. EXHIBIT P4: TRUE COPY OF THE PETITION FILED IN APPEAL NO.280/2011 DATED 03.11.2012. /TRUE COPY/ P.A TO JUDGE ## **“CR”** **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.3404 of 2013-A ---------------------------------------------------Dated this the 23[rd] October, 2013** ## **J U D G M E N T** The petitioner is the owner of an item of property within the 1[st] respondent Corporation. He is residing therein, in his residential house. The 3[rd] respondent owns another property in the same survey number. According to the petitioner, the 3[rd] respondent has reconstructed a building in his property. The said construction is stated to be in violation of the Building Rules that are applicable. It is alleged by the petitioner that the 3[rd] respondent has not maintained the required open space at the sides of his construction. On a complaint made by the petitioner, the Kozhikode Corporation initiated action against the 3[rd] respondent and an order directing demolition of the unauthorised construction was passed under Section 406(3) of the Kerala Municipality Act, 1994 (hereinafter referred to as `the Act' for short). Though the 3[rd] respondent had challenged the said order by filing Appeal No.456 of 2010 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram 2 (hereinafter referred to as `the Tribunal' for short), the same was dismissed by Ext.P1 order. Thereafter, the 3[rd] respondent sought for regularisation of his construction. However, his application has been dismissed. He has also been issued with a notice under Section 406(3) of the Act directing demolition of his unauthorised construction. The said order has been challenged by the 3[rd] respondent before the Tribunal by filing Appeal No.280 of 2011. The petitioner is the 2[nd] respondent in the said appeal. 2. The petitioner has filed this Writ Petition complaining that though he has got himself impleaded in the appeal and had sought for an early hearing thereof, the same has not been heard or disposed of till date. It is contended that, the 3[rd] respondent has constructed a septic tank, leach pit and soak pit, close to his house, in violation of the provisions of the Kerala Municipality Building Rules, 2009 (hereinafter referred to as `the Building Rules' for short). Therefore, the said constructions have been directed to be removed by the order passed by the 1[st] respondent, Corporation. The delay in disposal of the appeal, according to the petitioner, is causing him a lot of hardships, nuisance and inconvenience. Therefore, he has sought for the issue of appropriate directions for an early disposal of the 3 appeal. 3. This Writ Petition has not been admitted. Advocate K.D.Babu, the Standing Counsel for the 1[st] respondent, as well as Sri Yash Thomas, Advocate, have entered appearance respectively for respondents 1 and 3. 4. A report was called for from the 2[nd] respondent, through the Registrar General of the High Court. Accordingly, a report dated 11.02.13 has been placed on board. According to the Tribunal, the writ petitioner had personally appeared before the Tribunal and on seeing him, it was realised that he was the elder brother of the sister's husband of the Presiding Officer of the Tribunal. Since the Tribunal felt that it was not proper on his part to hear the appeal or to pass any orders thereon, he wrote a letter to the High Court seeking necessary directions in the matter. A copy of his letter is also appended to the report. A perusal of his letter shows that the writ petitioner, who was not originally a party to the appeal, had not only filed an impleading petition to get himself impleaded, but had also personally appeared before the Tribunal. Thereupon, it was realised that he was none other than the elder brother of the sister's husband of the Presiding Officer. It is also stated in the letter that since 4 there is only one such Tribunal in the State of Kerala, there is no other Forum to which the case could be transferred. It is in view of the above peculiar circumstances that he has sought for the directions of this Court on the administrative side. 5. The learned counsel for the 1[st] respondent does not have any objections to the appeal being heard by the Tribunal. The learned counsel for the 3[rd] respondent admits that the 3[rd] respondent had had no knowledge of the fact that the writ petitioner was related to the Presiding Officer of the Tribunal. The learned counsel admits that there is no other Tribunal to which the case could be transferred. He submits that the 3[rd] respondent would abide by any order that may be passed by this Court. According to the learned counsel for the petitioner, this is a case in which the `doctrine of necessity' applies and therefore, it is contended that the petitioner is entitled to the reliefs sought for in the Writ Petition. 6. Heard. The factual position is not in dispute. It is not disputed that the writ petitioner is related to the Presiding Officer in the manner stated in the report of the Tribunal. There is also no dispute that the Tribunal being the only Tribunal that is exercising the particular jurisdiction extending over the entire 5 State of Kerala, there is no other Forum to which the case could be transferred. Therefore, the only two alternatives available are, either to wait until there is a change in the Presiding Officer of the Tribunal, or to permit the present Presiding Officer to consider the appeal despite the fact that he is related to the writ petitioner. The writ petitioner complains of the acute nuisance caused by the delay in finally disposing of the appeal. Therefore, there is no point in delaying the disposal of the appeal indefinitely. The Tribunal has stated in its report that if this Court permits, it could dispose of the appeal within a period of one month of the date of receipt of such a direction. 7. The question that arises for consideration therefore is, whether the Tribunal can be permitted to hear and finally dispose of Appeal No.280 of 2011, in spite of the fact that the Presiding Officer is related to one of the parties thereto. 8. No man shall be a Judge in his own cause, is a cardinal principle of Natural Justice. Justice should not only be done, but should also seem to be manifestly and undoubtedly done. The presumption is that, justice cannot be said to have been done where a man acts as a Judge in his own cause or is interested in the outcome of the case. It is not whether there 6 has actually been bias that is important, but, whether there was a reasonable likelihood of bias. Any likelihood of bias is required to be eliminated in order to ensure that justice also appears to have been done. The principle applies equally to judicial, quasi judicial as well as administrative proceedings. An exemption to the above rules is the `doctrine of necessity'. 9. In **J.Mohapatra and Co. v. State of Orissa** [(1984) 4 SCC 103], the apex Court had to consider whether the presence of authors of books in a Committee constituted for selecting books to be purchased for school Libraries in the State of Orissa was proper or not. The principle has been set out by the Apex Court in the following passage: “12: There is, however, an exception to the above rule that no man shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the 7 matter and the machinery of justice or administration would break down. Thus, in **The Judges v. AttorneyGeneral for Saskatchewan** , the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act ex necessitate. The doctrine of necessity applies not only to judicial matters, but also to quasi-judicial and administrative matters.” 10. In **Election Commission of India v.** **Dr.Subramaniam Swamy** [(1996) 4 SCC 104], the Honourable Supreme Court has reiterated the principle. Speaking for the Court, A.M.Ahmadi, C.J, has set out the principle in the following words: “16: We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other 8 authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making.” 11. The above authoritative pronouncements clearly support the proposition that, where necessity requires an act to be done, by a particular person, the requirements of judicial propriety must yield to the needs of necessity. When the said principle is applied to the facts of the present case, it is only appropriate that the Tribunal hears the appeal and finally disposes of the same without further delay. As already noticed, it is the only Tribunal available for the entire State of Kerala. Therefore, there is no other Tribunal or alternative Forum to 9 which the appeal could be transferred. The Presiding Officer has expressed his willingness to decide the appeal, if a direction were issued by this Court. The expression of willingness by the Presiding Officer is a clear indication of his personal conviction that he would be able to hear and decide the matter impartially, without allowing his relationship with the writ petitioner to taint his decision. For the above reasons, I am satisfied that the 2[nd] respondent Tribunal can be directed to take up the appeal and to dispose of the same finally, within the time limit that is requested for in the report. For the above reasons, this Writ Petition is allowed. The 2[nd] respondent is directed to take up Appeal No.280 of 2011, to hear the parties and to finally dispose of the same, as expeditiously as possible and at any rate, within a period of one month of the date of receipt of a copy of this judgment. ## _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/