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2020 Supreme(Online)(KER) 45779
HIGH COURT OF KERALA
N. NAGARESH, J
T.C.NOUSHAD – Appellant
Versus
THE ALUVA MUNICIPALITY – Respondent
WP(C)/37541/2009
SRI.T.U.ZIYAD, SMT.RAMEENA.P.K, SRI.V.M.KURIAN
A demolition order cannot be executed until a pending application for regularization is considered, ensuring fairness in administrative proceedings.
Headnote:
Demolition - Local Self Government - Kerala Municipality Act - Section 406(3) - The court analyzed the directive of the Tribunal that mandated execution of a demolition order before considering a regularization application, ultimately ruling that such execution should be deferred until the regularization application is adjudicated.
Fact of the Case:
The petitioner operated a bakery and restaurant and received a notice from the Municipality to remove an alleged illegal construction. The Municipality confirmed this order, leading the petitioner to appeal. The Tribunal allowed the appeal but directed execution of the previous order without delay.
Finding of the Court:
The court found merit in the petitioner's argument that demolition should not proceed before the Municipality considered the regularization application. It emphasized the potential loss to the petitioner if demolition occurred prior to resolving the regularization matter.
Issues: Whether the Tribunal erred in directing immediate execution of the demolition order while a regularization application was pending.
Ratio Decidendi: The court held that the Municipality must prioritize consideration of the regularization application before proceeding with demolition, balancing the rights of the petitioner against administrative expedience.
Final Decision: The court set aside the Tribunal's directive to execute the demolition order and required the Municipality to resolve the regularization application first.
JUDGMENT
The petitioner is before this Court aggrieved by Ext.P11 order of the Tribunal for Local Self Government Institutions, Thiruvananthapuram to the extent it directs the Secretary to the first respondent Municipality to see that the confirmation order already issued under Section 406 (3) of Kerala Municipality Act and which has become final is executed without any necessary delay.
2. The petitioner is engaged in the business of production and sale of bakery items and restaurant respectively in a shopping complex at Aluva. The petitioner was served Ext.P3 notice dated 19.04.2008 of the respondent - Municipality, directing the petitioner to remove the alleged illegal construction made by the petitioner. Subsequently, the respondent confirmed Ext.P3 proposal as per Ext.P6 order dated 27.09.2008. By Ext.P6 order, the petitioner was required to remove the alleged illegal construction and report the same before the respondent-
Municipality, failing which the Municipality was to take necessary steps to demolish the illegal construction and recovering expenses therefor from the petitioner.
3. Aggrieved by Exts.P3 and P6, the petitioner filed Appeal No. 809/2009 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. The Tribunal after considering the materials produced by the petitioner and the respondent, passed Ext.P11 order dated 22.10.2009 allowing the appeal filed by the petitioner. The impugned order dated 17.09.2009 was set aside. The grievance of the petitioner is that after allowing the appeal and setting aside the impugned order, the Tribunal has directed the Secretary of the Municipality to see that the Ext.P6 confirmation order already issued under Section 406 (3) of the Kerala Municipality Act and which has become final is executed without any unnecessary delay.
4. Heard.
5. The learned counsel for the petitioner submits that the Tribunal for Local Self Government Institutions committed a grave error in directing the Secretary to proceed with demolition order after directing to consider regularisation application submitted by the petitioner. If the impugned order is allowed to stand as such, the building of the petitioner is likely to be demolished before even considering the application for regularistion submitted by the petitioner.
6. I find considerable force in the argument of the petitioner. The Tribunal has directed the Municipality to consider the application for regularisation of the construction made by the petitioner. Before considering the said application, if the respondent is proceeding with demolition of the building, the petitioner will be put great loss in case application for regularisation is allowed by the Municipality at a later point.
In the circumstances, this writ petition is allowed.
Ext.P11 order of the Tribunal for Local Self Government Institutions, to the extent it directs the Secretary to see that the confirmation order already issued under Section 406 (3) of the Kerala Municipality Act and which has become final is executed without any unnecessary delay, is set aside. It is made clear that the respondent Municipality will be at liberty to proceed in accordance with the law after considering and passing final orders on the application for regularisation submitted by the petitioner which is directed to be considered as per Ext.P11 order.
Sd/-
N. NAGARESH JUDGE
APPENDIX EXHIBIT P1 : TRUE COPY OF THE DEED OF LEAVE AND LICENSE.
EXHIBIT P2 : TRUE COPY OF THE ORDER DATED 18.02.2008 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM.
EXHIBIT P3 : TRUE COPY OF THE NOTICE NO.A2-7435/07 DATED
19.04.2008 ISSUED BY THE RESPONDENT.
EXHIBIT P4 : TRUE COPY OF THE OBJECTION DATED 15.05.2008 FILED BY THE PETITIONER IN EXT.P3.
EXHIBIT P5 : TRUE COPY OF THE NOTICE NO.E2-7435/07 DATED
25.08.2008 ISSUED BY THE RESPONDENT TO THE PETITIONER FOR SUBMITTING PLAN ETC. FOR REGULARISATION.
EXHIBIT P6 : TRUE COPY OF THE ORDER NO.E2-7435/07 DATED
27.09.2008 ISSUED BY THE RESPONDENT D
