Sree Narayana Dharma Sanghom Trust Sivagiri Mutt v. Varkala Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY ,THE 21ST DAY OF AUGUST 2018 / 30TH SRAVANA, 1940** **WP(C).No. 11628 of 2017** ## **PETITIONERS:** **1 SREE NARYANA DHARMA SANGHOM TRUST SIVAGIRI MUTT, VARKALA, THIRUVANANTHAPURAM DISTRICT,REP.BY THE GENERAL SECRETARY,SWAMI SANDRANANDA.** **2 THE PRESIDENT SREE NARYANA DHARMA SANGHOM TRUSTSIVAGIRI MUTT, VARKALA,THIRUVANANTHAPURAM DISTRICT,** ## **BY ADV. SRI. V. JAYAPRADEEP** ## **RESPONDENTS:** - **1 VARKALA MUNICIPALITY VARKALA, THIRUVANANTHAPURAM DISTRICT,REP.BY THE SECRETARY.** - **2 THE SECRETARY VARKALA MUNCIPALITY,VARKALA, THIRUVANANTHAPURAM DISTRICT.** > **R1 & R2 By SRI.RENJITHKUMAR, SC FOR VARKALA MUNICIPALITY R3 BY ADV.SRI. G.S.RAGHUNATH** **R3 BY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.8.2018, ALONG WITH WP(C).30797/2017 & WP(C).18847/2018, THE COURT ON 21.8.2018 DELIVERED THE FOLLOWING:** **WP(C).No. 11628 of 2017 2 & CON.CASES** ## **JUDGEMENT** Aforesaid writ petitions are materially connected in respect of Ext.P18 order passed by the 1[st] respondent Municipality dated 19.9.2016 directing the petitioner in W.P.(C) No.30797/2017 to remove the construction carried out, attached to a building at a length of 27 meters, and 6.40 meters width, apparently under section 406(3) of the Kerala Municipality Act, 1994. Therefore, I heard them together and propose to pass a common judgment. 2. Facts and documents available from W.P.(C) No.30797/2017 are relied upon to dispose of the writ petitions. According to the petitioner therein, petitioner is conducting a 'sadhyalayam' in the name of “Tunnel View SNV Sadhyalayam” in an extent of 24.5 cents of property in Varkalala from 1963 onwards. On the said extent of land, which is a portion of Government land, a building was constructed for the 'sadhyalayam' and also a small shed as a lean to the main building for storing vessels. The said building was assessed to property tax and the same was paid to the Varkala Panchayat and later to the Varkala Municipality. While so, 2[nd] respondent attempted to forcibly evict the petitioner from the property and the building mentioned by force, which was resisted by the petitioner by filing O.S.No.200/2009 before the Munsiff's Court, Varkala seeking injunction, in which an interim injunction was granted. It is further **WP(C).No. 11628 of 2017 3 & CON.CASES** submitted that, since the illegal attempt of the 2[nd] respondent to forcibly evict the petitioner from the building mentioned above did not succeed at the influence of the 2[nd] respondent, 1[st] respondent refused the licence to the building in question. So also the property tax assessment of the aforesaid building, which was assessed in the name of the petitioner, was transferred in the name of the 2[nd] respondent behind the back of the petitioner. 3. In the meanwhile on the influence exerted by the 2[nd] respondent, 1[st] respondent issued Ext.P16 notice dated 10.2.2016 stating that, petitioner has constructed a shed in the property belonging to the 2[nd] respondent and thereby calling upon the petitioner to submit his explanations, if any. It is the further case of the petitioner that, even though Ext.P17 objection to the said notice was filed by the petitioner in time, without considering the same, Ext.P18 order was passed by the 1[st] respondent, directing the petitioner to remove the unauthorised construction carried out by the petitioner. Since the petitioner was a chronic cardiac patient, aged 81 years, and continuously ill since 2016, he could not file appeal before the Tribunal for Local Self Government Institutions. Even though Ext.P21 appeal was submitted under section 509 of the Municipality Building Rules along with an application to condone the delay of 275 days, the Tribunal refused to accept the appeal on account of the delay and on the basis of the special limitation prescribed under proviso to rule 8(3) of the Tribunal for Local Self Government Institutions Rules, 1999. **WP(C).No. 11628 of 2017 4 & CON.CASES** 4. First respondent has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner, wherein it is contended that, Ext.P21 appeal preferred by the petitioner is not maintainable under law and therefore, the writ petition now filed by the petitioner after the statutory period of filing an appeal before the Tribunal, cannot be sustained under law. That apart it is stated that, as per Ext.P16 provisional order passed on 10.2.2016, petitioner was apprised of the situation and directed to file objections to the same. Accordingly, Ext.P17 reply was submitted by the petitioner on 3.3.2016 through an Advocate. Based on Ext.P17 reply, personal hearing was notified by serving notice on the petitioner and the 2[nd] respondent, evident from Ext.R1(a). It is also pointed out that, from Ext.R1(a) it is evident that, signatures were affixed by the petitioner and the 2[nd] respondent, however, both parties filed adjournment petitions. Hence the hearing was again scheduled on 8.4.2016. On 8.4.2016, 2[nd] respondent along with his counsel appeared and produced some documents and submission of the 2[nd] respondent was also recorded. Since the petitioner was absent, again a notice was issued on 16.4.2016, evident from Ext.R1(b). Pursuant to Ext.R1(b), petitioner appeared in person and produced some documents. Thereupon, the statement of the petitioner was recorded and subsequently Ext.P18 order was passed taking into account the contentions advanced by the parties and complying with the principles of natural justice. Therefore, according to the 1[st] respondent, the writ petition filed by the petitioner is not **WP(C).No. 11628 of 2017 5 & CON.CASES** maintainable under law. 5. Second respondent has also filed a counter affidavit refuting the allegations and claims and demands raised by the petitioner. According to the 2[nd] respondent, 2[nd] respondent is a public charitable trust functioning in accordance with the scheme framed as per the decree of this court dated 26.3.1959 in A.S No.14/1956 and approved by the Apex Court. That apart it is stated that, the version now put forth by the petitioner in the writ petition that, he is the owner of the building, was considered by the Munsiff's Court, Varkala in O.S No.200/2009 and has rendered Ext.P8 judgment dated 31.7.2015. Vide Ext.P8 judgment, 2[nd] respondent was restrained by a permanent prohibitory injunction, from evicting the petitioner otherwise than under due process of law from the building in question. It was also found that, on going through Ext.A76, it can be seen that, petitioner's father occupied the plaint schedule property after making a clear understanding that, he was entering into the property only as a tenant and agreeing to pay monthly rent to the 2[nd] respondent. Further it was found that, it was also agreed in the said document that, the predecessor in occupation will vacate the plaint schedule premises after 11 years without seeking anything from the 2[nd] respondent and since the title is now not a question before the court, the court is not inclined to delve any more with respect to the said aspect. Other contentions are also raised by the 2[nd] respondent to the effect that, construction was carried out by the petitioner, who is the tenant in the building, without securing any ## **WP(C).No. 11628 of 2017 6 & CON.CASES** permission from the 2[nd] respondent or from the Municipality in accordance with the Kerala Municipality Building Rules, 1999. That apart it is submitted that, Ext.P21 appeal submitted by the petitioner is only an eyewash and the petitioner knew very well that, an appeal with a delay of 275 days is not maintainable under law in view of the special limitation prescribed under the Rules specified above. 6. W.P.(C) No.11628/2017 is filed by the 2[nd] respondent seeking to implement the order passed by the Municipality produced as Ext.P18 in the other writ petition, in which a detailed counter affidavit is filed by the 2[nd] respondent, wherein it is stated that, Ext.P18 order is passed by the Municipality absolutely in violation of the principles of natural justice and petitioner was not heard and none of the documents produced were considered before passing the order impugned. Therefore, even if the appeal is found to be not maintainable, the impugned order is liable to be interfered with by this court since it is arbitrary and illegal. 7. W.P.(C) No.18847/2018 is filed by a third person seeking direction to the Secretary, Varkala Municipality Revenue Divisional Officer, Trivandrum and the Principal Secretary, Local Self Government Department of Kerala, to demolish the buildings situated in the property in question and also to cut and remove dangerous trees standing close to those buildings with Police assistance. The 4[th] respondent therein viz., The Sree Narayana Dharma Sanghom Trust has filed a detailed counter affidavit virtually supporting the **WP(C).No. 11628 of 2017 7 & CON.CASES** version raised by the petitioner in the said writ petition stating that, the buildings are unfit and dilapidated and therefore, they are liable to be demolished and appropriate directions may be issued by this court in the said writ petition. 8. I have heard learned counsel for petitioners, respective counsel appearing for respondents and perused the pleadings and documents on record. 9. On evaluating the submissions made across the Bar, two questions arise for consideration; (1) Whether any manner of interference is warranted against the rejection of Ext.P21 appeal submitted by the petitioner before the Tribunal for Local Self Government Institutions on the ground of delay exceeding one month prescribed under Rules, 1999 specified above. (2) Whether any manner of interference is required to Ext.P18 order passed by the Secretary of the 1[st] respondent Municipality dated 19.9.2016 as per section 406(3) of the Kerala Municipality Act, 1994 ? 10. Learned counsel for petitioner in W.P.(C) No.30797/2017 has relied heavily upon the judgement in **Gopalan v. Aboobacker** [ _1995(2) KLT 205(SC_ )] to canvass the proposition that since under Rules, 1999 there is no express exclusion made excluding the Limitation Act, 1963, the Tribunal is vested with ample powers to condone the delay exceeding one month prescribed under Rules 1999 taking into account the reasons assigned in the delay petition. It is also contended that, the Municipality has passed Ext.P18 without taking into account the documents produced by the petitioner along with Ext.P17 **WP(C).No. 11628 of 2017 8 & CON.CASES** objection/reply filed to the provisional order dated 10.2.2016 and therefore, the order is passed violative of the principles of natural justice and accordingly interference of this court is required under Article 226 of the Constitution of India. 11. On the other hand, learned counsel appearing for Municipality as well as the Sree Narayana Dharma Sanghom Trust submitted that, the question with respect to the condonation of delay by the Tribunal exceeding one month was considered by a Division Bench of this Court in **Rermal Padmanabhan v. Tribunal for Local Self Government Institutions** [ _2015(3)KLT 201_ ] and laid down the law that delay exceeding one month cannot be condoned by the Tribunal. It is also submitted that, the said decision was followed by a learned Single Judge of this court in **Vasudeva Panicker v. State of Kerala** [2016(1)KLT 206]. That apart, another learned Single Judge considered the very same question and adopted the same view in **Thankappan. K.N. and others v. Tribunal for Local Self Government Institutions and other** [ _ILR 2015(3) Kerala 991_ ]. 12. I have considered the rival submissions. In **Gopalan** _(supra)_ , it is true, judgment of a Full Bench of this court was overruled by the Apex Court holding that, since the appellate authority under Kerala (Buildings Lease and Rent Control) Act, 1965 is a court sections 4 to 24 of the Limitation Act will apply and the delay occurred in filing the appeal after 30 days can be condoned accordingly. However, the issue with respect to the special limitation prescribed under any statute was never under consideration **WP(C).No. 11628 of 2017 9 & CON.CASES** in **Gopalan** _supra_ . 13. On evaluating the rival submissions made across the Bar, I am of the considered opinion that, the said question was elaborately considered by this court in **Rermal Padmanabhan** _(supra_ ) also taking into account various judgments of the Apex Court vis-a-vis special limitation prescribed under various statutes like Indian Electricity Act, 2003, Arbitration and Conciliation Act, 1996 and also Central Excise Act, 1944 and held that, since a special limitation is prescribed as per the proviso to rule 8(3) of the Tribunal for Local Self Government Institutions Rules, 1999, there is no power vested with the Tribunal to condone the delay. The Division Bench has also approved the judgment rendered by a learned Single Judge of this court in **Thomas Thomas v. Kottayam Municipality** [2008(3)KLT 964] and further held that, the judgment rendered by a Division Bench of this Court in **Pushpakaran v. Union of India** [2008(1) KLT 161] vis-a-vis the provisions of Railway Claims Tribunal Rules has no bearing to the issue in question. 14. Therefore, I am of the considered opinion that, the proposition of law laid down by the Apex Court in **Gopalan** (supra) has no bearing to the facts and circumstances of the case on hand at all. Even though learned counsel for petitioner has a case that, as per the stipulations contained under section 29(2) of the Indian Limitation Act, 1963, an express exclusion is required under law excluding the Limitation Act from the purview of the Tribunal, I am unable to subscribe to the said view. In this context the phraseology **WP(C).No. 11628 of 2017 10 & CON.CASES** 'express' defined under the Black's Law Dictionary, Nineth Edition would be worthwhile; **==> picture [334 x 11] intentionally omitted <==** _communicated; directly stated.”_ 15. Now a reference to rule 8(3) of the Tribunal for Local Self Government Institutions Rules, 1999 and the proviso thereto would make the legal position clear. “8(3) Petitions under sub-rules (1) and (2) shall be in Form 'C' and the same shall be submitted before the Tribunal within thirty days from the date of the notice or order or proceedings against which the petition is filed or within ninety days in cases where decision has not been taken within sixty days of filing appeal before the Local Self Government Institutions. Provided that the Tribunal may admit a petition submitted within one month after the said time limit, if the Tribunal is satisfied that there is sufficient reason for not submitting the petition within the time limit.” 16. Therefore, sub-section (3) makes it clear that, an appeal is to be preferred within 30 days from the date of the notice or order or proceedings against which the petition is filed and the proviso makes it explicit that, if it is not preferred within the time limit of 30 days, it can only be submitted within one month after the said time limit. A reference to section 29 of the Limitation Act dealing with savings make the legal situation crystal clear; “29(2): Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by **WP(C).No. 11628 of 2017 11 & CON.CASES** the Schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only insofar as, and to the extent, they are not expressly excluded by such special or local law.” 17. Therefore, on an appreciation of Rule 8(3) and proviso thereto, harmoniously with section 29(2) of the Limitation Act, it is quite clear and evident that, a special limitation is prescribed in accordance with Rules, 1999 and therefore, the provisions of the Special Law will apply. In my considered view, since it is evident from the provisions of section 29(2) of Limitation Act that, if under the special law a limitation is prescribed expressly, then the provisions of the special enactment will come into force. 18. Taking into account the factual and legal circumstances, I have no hesitation to hold that, the Tribunal is not vested with powers to condone the delay after one month prescribed under the proviso to rule 8(3). Accordingly, I do not find any illegality or arbitrariness justifying interference in the action of the Tribunal rejecting Ext.P21 appeal. 19. Next question to be considered is whether any manner of interference is warranted to the order passed by the Secretary of the Municipality dated 19.9.2016 ? The sum and substance of the contentions advanced by the learned counsel for petitioner as well as counsel for the respondents is that, a provisional order was **WP(C).No. 11628 of 2017 12 & CON.CASES** passed and the petitioner has admittedly submitted Ext.P17 objection. According to the petitioner, no hearing was provided to the petitioner and none of the documents relied upon by the petitioner in Ext.P17 was considered by the Secretary of the Municipality. However, from the order passed by the Secretary of the 1[st] respondent Municipality, it is evident that, the objection submitted by the petitioner was considered. Even though on one of the dates posted for hearing petitioner was not present before the Secretary, a further notice was issued on 16.4.2016, which is produced by the petitioner as Ext.P16 and on the hearing date, petitioner appeared in person, his statement was recorded and thereafter only Ext.P18 order was passed. The said specific averment made in the counter affidavit is also not under dispute. 20. Therefore, the said contention advanced by learned counsel for petitioner cannot be sustained under law, there being no arbitrariness or illegality. Further it is a well settled proposition in law that after the appeal period is over, the discretionary power conferred on this court under Article 226 of the Constitution of India cannot be invoked. I am also of the view, the action initiated by the Municipality under sections 406(1) and 406(2) followed by order under section 406(3) of Act, 1994 is in accordance with law. So also 'building' is defined under the Kerala Municipality Building Rules, 1999 to mean “any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, **WP(C).No. 11628 of 2017 13 & CON.CASES** walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures.” so also section 387 of Act, 1994 makes it clear that, in order to carry out any construction as is contemplated under the Act, an application shall be submitted to the Secretary of the Municipality and section 389 of the Act prohibits commencement of work without permission. Therefore, on an appreciation of the aforesaid provisions also, it is clear that, the construction carried out by the petitioner was not in accordance with law. 21. Therefore, upshot of the above discussion is, W.P.(C) No.37097/2017 is dismissed and petitioner is not entitled to get any reliefs as is sought for in the writ petition. However, I make it clear that, the observations and findings contained above shall not be treated or construed as any expression of opinion on the issue with respect to the ownership of the building by and between the petitioner and the Sree Narayana Dharma Sanghom Trust pending before any authority. 22. In view of the findings rendered in the aforesaid writ petition, W.P.(C) No.11628/2017 will stand allowed. So far as W.P.(C) No.18847/2018 is concerned, it is for the Municipality to consider the issue with respect to the condition of the building in question, as also trees in the property and take appropriate action in accordance with law, after issuing notice to all interested **WP(C).No. 11628 of 2017 14 & CON.CASES** parties. ## **Sd/-** ## **SHAJI P.CHALY** **Judge** smv 17.8.2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1:** **TRUE COPY OF THE COMPLAINT DATED 11.09.2015 SUBMITTED BEFORE THE FIRST RESPONDENT.** **EXHIBIT-P2: TRUE COPY OF THE PROCEEDINGS DATED 19.09.2016 PASSED BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS :** **R3(a) : TRUE COPY OF THE LICENCE FOR THE PERIOD 2016- 2017 ISSUED BY VARKALA MUNICIPALITY TO THE 3RD RESPONDENT.** **R3(b) : TRUE COPY OF THE RENEWAL APPLICATION SUBMITTED BY 3RD RESPONDENT BEFORE VARAKALA MUNICIPALITY.** **R3(c) : TRUE COPY OF THE CONSENT TO OPERATE THE SADYALAYAM FROM POLLUTON CONTROL BOARD DATED 4.5.2016.** **R3(d) : TRUE COPY OF THE JUDGMENT DATED 31.7.2015 IN O.S.NO.200/2009 OF THE MUNSIFF'S COURT, VARKALA.** **R3(e) : TRUE COPY OF THE ORDER IN W.P.(C) NO.37768/2015 DATED 23.12.2015.** **R3(f) : TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE 3RD RESPONDENT DATED 11.10.67** **R3(g) : TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE 3RD RESPONDENT DATED 7.8.74.** **R3(h) : TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE 3RD RESPONDENT DATED 12.8.74.** **R3(i) : TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE 3RD RESPONDENT** **WP(C).No. 11628 of 2017 15 & CON.CASES** **DATED 12.11.82.** **R3(j) : TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE 3RD RESPONDENT DATED 28.1.85.** **R3(k) : TRUE COPY OF THE BUILDING TAX RECEIPTS DATED 6.9.1973 AND 26.6.82 ISSUED BY VARKALA MUNICIPALITY.** **R3(l) : TRUE COPY OF THE PROFESSIONAL TAX RECEIPTS ISSUED BY VARKALA MUNICIPALITY DATED 14.10.85 AND 27.2.2017.** **R3(m) : TRUE COPY OF THE PROPERTY TAX RECEIPTS DATED 31.3.86 & 3.1.1991 ISSUED TO THE 3RD RESPONDENT BY VARKALA MUNICIPALITY.** **R3(n) : TRUE COPY OF THE NOTICE DATED 5.1.1985 ISSUED FROM VARKALA MUNICIPALITY TO THE 3RD RESPONDENT.** **R3(o) : TRUE COPY OF THE COMPLAINT GIVEN BY 3RD RESPONDENT BEFORE THE 1ST RESPONDENT DATED 6.4.2016.** **R3(p) : TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.8939/2017 DATED 16.3.2017** _//TRUE COPY//_ _P.A. TO JUDGE_