Noorjahan (W/o Abdul Majeed) v Kalamassery Municipal Council and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **WP(C).No.16952 OF 2014(T)** ## **PETITIONER:** **NOORJAHAN AGED 35 YEARS W/O.ABDUL MAJEED, RESIDING AT 24/189, ELLIKAL HOUSE, VAIKKOM MUHAMMED ROAD, PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI, REPRESENTED BY HER POWER OF ATTORNEY HOLDER AND HER HUSBAND SHRI.ABDUL MAJEED, RESIDING AT DO. DO** **BY ADVS. SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.SAIJO HASSAN SRI.VISHNU BHUVANENDRAN** ## **RESPONDENTS:** **1 KALAMASSERY MUNICIPAL COUNCIL KALAMASSERY MUNICIPALITY OFFICE, KALAMASSERY, COCHIN - 682 033, REPRESENTED BY THE SECRETARY 2 A.K.NAZAR ANJIKKAD, PATHADIPALAM, KALAMASSERY, COCHIN - 682 033** **R2 BY ADV. SRI.P.B.KRISHNAN R2 BY ADV. SRI.P.M.NEELAKANDAN R2 BY ADV. SRI.P.B.SUBRAMANYAN R2 BY ADV. SRI.SABU GEORGE R2 BY ADV. SRI.MANU VYASAN PETER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON, 24.10.19 THE COURT ON 19.12.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.16952/14 2 ## **JUDGMENT** ## **Dated this the 19th day of December 2019** 1. The writ petition is filed challenging Exhibit P5 order of the Tribunal for Local Self Government Institutions rejecting an application preferred by the petitioner for appointing an Advocate Commission for local investigation with the assistance of the Taluk Surveyor and expert Engineer on the ground that the same is not maintainable. 2. The petitioner herein is the petitioner in Exhibit P2 Revision Petition on the file of the Tribunal. The respondents herein are the respondents therein. The petitioner had complained of violation of the provisions of the Kerala Municipality Building Rules (“Rules” for short) in the construction of building by the 2[nd] respondent. The Secretary of the Municipality by order dated 1.6.2011 rejected the complaint. Petitioner preferred an appeal to the Municipal Council, which was also rejected. In the revision petition filed before the Tribunal, the petitioner has challenged the decision of the 1[st] respondent in rejecting the appeal. The petitioner filed Exhibit P3 petition for W.P.(C).No.16952/14 3 appointing an advocate commission for local investigation with the assistance of Taluk Surveyor. The 2[nd] respondent filed Exhibit P4 objection to the said petition. The Tribunal, dismissed Exhibit P3 petition on the ground that the Tribunal has no power or authority to issue a commission for local investigation vide Exhibit P5 order, which is under challenge in this writ petition. - 3.Heard Sri.Nagaraj Narayanan, learned counsel for the petitioner, Sri.M.K.Aboobacker, learned standing counsel appearing for the 1[st] respondent and Sri.P.B.Krishnan, the learned counsel for the 2[nd] respondent. 4. The learned counsel for the petitioner would rely on Rule 25 of the Rules and contend that the Tribunal has the power to regulate its procedure and that the contention that an application for local inspection cannot be considered is completely misconceived. Reliance is also placed on the provisions of 271 S (3) of the Kerala Panchayat Raj Act and it is contended that there is no express prohibition against W.P.(C).No.16952/14 4 issuing a commission for local inspection. The decision of a Division Bench of this Court in Jomi C.Nidheeri v. Elanji Grama Panchayat [2007 (2) KLT 345] is relied on to contend that the Appellate Tribunal is vested with ample powers to hear appeals on merit and the power is not restricted to inspection of procedural matters only. It is stated that powers that are not expressly withheld should be presumed to exist. 5. The learned counsel for the petitioner places reliance on decisions in Associated Cement Companies Ltd. v. P. N. Sharma [AIR 1965 SC 1595], Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Others [1980 (Supp) SC 420], New India Assurance Co. Ltd.v. Srinivasan [2000 KHC 385], Ouseph v. Kunjipathumma [1981 KHC 130], Aliyar v. Pathu [1988 KHC 475] , Vasantha Bhagavalsingh and Others v. Anthony and Others [2012 (2) KHC 571] and G. K. Granties Ltd. v. Vellavoor Grama Panchayath and Others [2012 (3) KHC 775] in support of the contention that ancillary and incidental powers should be assumed to exist in a Tribunal to enable it to decide a question in accordance with law. The decision of the W.P.(C).No.16952/14 5 Apex Court in Dhani Devi v. Santh Bihari Sharma and others [1970 KHC 679] is relied on to contend that even in administrative action, the authority is free to adopt any reasonable method to carry out its functions provided there is no statutory interdiction. It is further submitted that the decision reported in Dr.P.V.Thomas v. M.V.Rajan and others [1984 KLT 147] which was relied on by the Tribunal has been impliedly overruled by the decision in Vasantha Bhagavalsingh 's case (supra) and that the reliance was therefore not proper. 6. A counter affidavit has been placed on record by the 2[nd] respondent. It is contended therein that the 2[nd] respondent is in possession of 30.62 cents of land by partition deed dated 3.2.1997 and sale deed dated 20.12.2004 and that all the factual aspects of the matter had been properly considered by the Secretary and the Municipality while dealing with the complaint raised by the petitioner. It is submitted that what is pending before the Tribunal is a revision petition and there is no provision under Section 271S (3) of the Panchayat Raj Act enabling the deputation of a Commission to conduct a local W.P.(C).No.16952/14 6 inspection. It is submitted that a Commissioner's report in O.S.No.830 of 2010 on the file of the Munsiff's Court, Ernakulam filed by the petitioner is available in the case records. It is further submitted in the counter affidavit as follows:- “At least on 38 occasions my property and building were measured by various authorities on the complaint made by the Writ Petitioner and her relatives. All the complaints of the Petitioner and her relatives were malicious and frivolous. Respondent No.1 Municipality and its officers conducted inspection and measurements of the building and the land for about 16 times. The officers from the Chief Town Planner’s office and the Senior Town Planner (Vigilance) inspected and measured the building on three occasions each. The Vigilance and Anticorruption bureau conducted inspection with the help of engineers from various municipalities and surveyors for about seven times. None of those measurements revealed any unauthorized construction.” 7. It is further submitted that the complaints are raised at the instance of the husband of the petitioners and his brothers, who are accused in a CBI case with regard to land grabbing. The learned counsel also places reliance on the decision of the Andhra Pradesh High Court in M/s.Sivashakthi Builders, W.P.(C).No.16952/14 7 Hyderabad v. A.P. State Consumer Disputes Redressal Commission, Hyderabad [AIR 2009 AP 84] and M/s.Yogendra Builders and Another v. Vidya Paradise Owners' Welfare Association and Another [AIR 2008 Andhra Pradesh 31] in support of the contention that there was no provision for appointment of commission to make a local inspection, orders to that effect could be completely unjustified. The learned counsel for the respondent also places reliance on the decision of the Apex Court in State of Kerala v. K.M.Gharia Abdulla [AIR 1965 SC 1585] to contend that the remedy of revision is completely separate and distinct from the remedy of appeal. Where the right of appeal and a discretionary remedy of revision are provided by the same statute. It must be deemed that two separate jurisdictions distinct in scope and content had been created and that the nature of the adjudication required is also distinct and separate. 8.After the writ petition had been taken for orders, the learned counsel for the petitioner sought leave to produce additional documents. The matter was posted and reopened and Exhibits W.P.(C).No.16952/14 8 P6 and P7 additional documents have been produced. Exhibit P6 is the order dated 1.6.2011 from which appeal had initially been preferred by the petitioner before the Municipal Council. Exhibit P7 is a reply received under the Right to Information Act, which is relied on to contend that mutation had not been carried out in pursuance to Exhibit R2(b) document and that as such, the construction carried out is illegal. 9. The learned counsel appearing for the 1[st] respondent Municipality submits that Section 271S(3)(e) of the Panchayat Raj Act is very clear as to the nature of the power and that the attempt of the petitioner is only to delay the disposal of the revision petition. It is submitted that records of local inspection are available in the files which have been produced before the Tribunal and that a further local inspection is completely unnecessary in view of the fact that several inspections had been conducted and the reports of the said inspection are available with the Tribunal. It is further stated that all factual aspects of the matter have been considered in the order of the Tribunal. Paragraph 11 of the order refers to W.P.(C).No.16952/14 9 commission report of the civil case and the records available in the files with regard to the inspections already conducted. It is contended that the allegations raised against the members of the Municipality and its officers are malicious in nature and are completely unsupported by any material and that the writ petition is liable to be dismissed with exemplary cost. 10.The learned counsel for the petitioner would contend that there was no separate procedure prescribed for dealing with appeals and revisions filed before the Tribunal. Referring to Rule 16 of the Rules of Procedure, it is submitted that procedure for considering appeal and revision is the same and is not summary in nature. It is stated that the time limit for disposal of matters before the Tribunal is not mandatory in nature. It is further contended that the Tribunal is the court of first instance where evidence is adduced in matters relating to illegal grant of building permits and that as such, the petitioner's request for deputing an Advocate Commission for local inspection ought to have been considered favourably. W.P.(C).No.16952/14 10 11.Having considered the contentions advanced on either side, I am of the opinion that the general legal proposition argued that a Tribunal, which has the trappings of a civil Court should be deemed to be vested with all ancillary and incidental powers to decide the disputes raised before it, is not required to be considered in the instant case. The reasons are two fold. The application filed before the Tribunal by the petitioner in the writ petition was only a revision petition. An appeal is provided under Section 509 of the Municipalities Act from orders of the Secretary to the Tribunal. Orders passed by the Secretary can also be subjected to an appeal before the Municipal Council in terms of the provisions of the Act. Where such an appeal is resorted to, the appellate order can be subjected to a further revision before the Tribunal. It is not in dispute that what was filed by the petitioner before the Tribunal was a revision petition from an appellate order passed by the Municipal Council. There is an apparent distinction between the powers of appeal and revision. An appeal is a continuation of the original proceedings, while a revision is only an exercise of examining an order to determine W.P.(C).No.16952/14 11 whether it suffers from any patent illegality. The application filed before the Tribunal at Exhibit P2 seeks the following prayers:- “For these and other reasons to be urged at the time of hearing this Hon'ble Tribunal for LSGI may be pleased to call for the records and decision No.17 dated 29.12.2012 referred in the order dated 02.01.2013 passed by the Kalamassery Municipal Council may be set aside and the order dated 01.06.2011 by the Secretary may also be quashed. This Honourable Tribunal may also pass an order directing the 1[st] counter petitioner to take steps to demolish the illegal and un-authorised construction and to proceed against the second counter petitioner for illegal and unauthorised construction and also proceed for obtaining permit and licence by practicing mis-representation or remand the matter for de nova disposal.” 12.In view of the limited nature of the power of revision, I am of the opinion that a roving enquiry and gathering of further evidence is not warranted while considering a revision, be it under the Civil Procedure Code or any other enactment, unless the statute specifically provides so. In the above view of the matter, the question whether the Tribunal would in an W.P.(C).No.16952/14 12 appropriate case, have the power to issue a Commission for local inspection does not require to be decided in the instant case. 13.The second reason is that the 2[nd] respondent as well as the Municipality have repeatedly averred that as many as 38 local inspections have been conducted by the Municipality, Taluk Surveyor, the Vigilance and Anti-corruption Bureau and several other authorities and reports of all these inspections were available in the file which was made available before the Tribunal. A commission report in a civil case has been specifically adverted to and it has been considered as being adequate for the purpose of deciding the disputed questions of fact. In the said factual situation, I am of the opinion that the prayer for issuing a local commission is only intended as a part of the dilatory tactics and that no useful purpose will be served by issuing such an order. In the above view of the matter, I refrain from answering the question as to whether the Tribunal was right in holding that the ancillary power to issue a Commission for local inspection is not provided in the W.P.(C).No.16952/14 13 Act or the Rules and that as such, the Tribunal has no power to issue a Commission for local inspection. However, the rejection of Exhibit P3 application is found to be just and proper in the facts and circumstances of the instant case. I, therefore, refrain from interfering with the impugned order. It is made clear that the legal questions raised is left open. The writ petition is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY DT. 01.09.12 OF THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF THE REVISION PETITION NO. 18/13 DT. 4.2.13 FILED BY THE PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE COMMISSION APPLICATION AS IA 1125/14 IN RP 18/13 DT. 29.4.14** - **EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT DT. 15.5.14 SUBMITTED BY THE 2ND RESPONDENT TO EXT. P3IA** - **EXHIBIT P5 TRUE COPY OF THE ORDER DT. 03.6.14 OF THE LEARNED TRIBUNAL** - **EXHIBIT P6 TRUE COPY OF THE RELEVANT DOCUMENTS PROCURED THROUGH RIGHT TO INFORMATION ACT.** - **EXHIBIT P7 TRUE COPY OF THE RELEVANT DOCUMENT PROCURED THROUGH RIGHT TO INFORMATION ACT.** ## **RESPONDENTS' EXHIBITS:** - **EXHIBIT R2 A TRUE PHOTOCOPY OF THE PARTITION DEED DATED 03-02-1997 REGISTERED AS DOCUMENT NO.481 OF 1997 IN SRO, EDAPPALLY.** - **EXHIBIT R2 B TRUE PHOTOCOPY OF THE SALE DEED REGISTERED AS DOCUMENT NO.8782 OF 2004 DATED 20-122004 IN SRO, EDAPPALLY.** - **EXHIBIT R2 C TRUE PHOTOCOPY OF FINAL REPORT/CHARGE SHEET NO.01/GJ/2015/TVPM DATED 22-07-2015 ON THE FILE OF THE HON'BLE SPECIAL JUDGE-III, CBI, ERNAKULAM.** True copy PS to Judge