IMPORTANT POINTS
Judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing interbranch interference by the judiciary- In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activisms unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of inter branch equality.

JUDGMENT :

S. Manikumar, J.

Challenge in this appeal is to the judgment passed in W.P.(C) No.30577 of 2016 dated 18.10.2019, by which the writ court set aside Exhibit-P10 order dated 27.05.2016 issued on behalf of the State of Kerala, represented by Secretary to the Government, Local Self Government Department, Thiruvananthapuram, respondent No.2 herein, regularising the unauthorised construction, after accepting a compound fee of Rs.45,475/-. Writ court further directed that report of the Secretary of Vilappil Grama Panchayat along with recommendations of the Chief Town Planner shall be considered afresh by the Government and the petitioner, 2nd respondent as well as 4th respondent therein shall be put on notice, heard and appropriate orders shall be passed within a period of two months from the date of receipt of a copy of the judgment, after considering the contention of all the parties. They were also directed to appear before the Secretary to Government in the Local Self Government Department at 11 am on 30.10.2019 for hearing.

2. Being aggrieved, respondent No.4 therein has filed the instant writ appeal.

3. Before the writ court, respondent No.1 submitted that she is the owner and in possession of 4 cents of property in Vilappil village in Kattakada taluk at Thiruvananthapuram. Respondent No.4/appellant has 5.5 cents of property adjacent to the petitioner's property. Said land was purchased on 21.12.2009. Thereafter on 23.12.2009, another extent of 2.80 cents of property was purchased by the 4th respondent adjacent to the property purchased on 21.12.2009. Application for building permit for construction of three storeyed building in the 2.8 cents of property was submitted by the 4th respondent/appellant. Taking note of Rules 61 and 62 of the Kerala Municipality Building Rules, 2018 with regard to construction in small plots, Exhibit-P1 building permit was issued by the Secretary of Vilappil Grama Panchayat, respondent No.2 therein.

4. Being aggrieved, Smt. K.R. Moniamma, respondent No.1, challenged the building permit before the Tribunal for Local Self Government Institutions. The Tribunal after considering the pleadings and submissions, found that the benefit of proviso to Rule 60 would not be applicable in respect of buildings in small plots, if the applicant has another plot, abutting the proposed plot.

5. The Tribunal found that 4th respondent's other property was abutting the property in respect of which, Exhibit-P1 building permit was applied for, and therefore, the plot in which construction was proposed, cannot be considered as a small plot. The Tribunal also found that the building permit was not legal and valid and accordingly, set aside the same. The Tribunal further directed the Secretary of Vilappil Grama Panchayat to conduct a site inspection to verify whether the building put up by 4th respondent/appellant is in conformity with the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Building Rules, 2019 and whether there is any possibility to regularise the construction, if an application is submitted by the 4th respondent.

6. Said order of the Tribunal was challenged before this Court by respondent No.4/appellant herein. Vide judgment in O.P.(C) No.2388 of 2011 dated 4.2.2013, this Court found that since the 4th respondent has a plot adjacent to the small plot with or without a building, he cannot be considered as a small plot holder and would not be entitled to the benefits of building permit in respect of the building in small plots and thus, the order of the Tribunal was upheld and the original petition was dismissed.

7. Thereafter, Exhibit-P8 application dated 28.03.2015 for regularization was submitted by the 4th respondent before the Panchayat. According to the writ petitioner, without hearing and behind her back, inspections were conducted and by Exhibit-P9 dated 30.11.2015, the Secretary of the Panchayat recommended regularization and forwarded proposal to the District Town Planne