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HIGH COURT OF KERALA
N. NAGARESH, J
S.SIVAKUMAR – Appellant
Versus
THE SECRETARY – Respondent
WP(C)/27732/2022
Construction - Municipal Issues - Kerala Municipality Act - Section 509(6) - The court directed the Tribunal for Local Self Government Institutions to consider the appeal related to the demolition notice issued for unauthorized construction, ensuring no coercive action occurs during this process.
Fact of the Case:
The petitioner, a partner in a construction company, challenged a notice requiring the demolition of unauthorized building construction issued by municipal authorities. The petitioner sought to quash this notice and aimed to appeal before the appropriate Tribunal.
Finding of the Court:
The court recognized the petitioner's construction as illegal and found merit in the respondents' arguments. However, it decided to refer the matter to the Tribunal, emphasizing the petitioner's statutory right to appeal.
Issues: Whether the petitioner’s appeal regarding the demolition notice should be heard by the Tribunal, allowing the continuation of interim relief until a decision is made.
Ratio Decidendi: The court upheld the principle that statutory remedies must be exhausted, determining that the Tribunal should assess the merits of the appeal against the demolition notice.
Final Decision: The Tribunal is directed to consider the appeal while maintaining interim protection for the petitioner.
J U D G M E N T
Dated this the 21st day of November, 2022 The petitioner, who is one of the Partners of a Building Construction Company, has filed this writ petition challenging Exts.P2, P3, P4, P8 and P11 and seeking to quash the same. The petitioner also sought to direct the respondents not to proceed ahead with Ext.P11.
2. By Ext.P11 notice issued by the Secretary to the Corporation, the petitioner was required to adhere to the final order and demolish an illegal and unauthorised building construction. It is aggrieved by Ext.P11 notice that the petitioner is before this Court.
3. When this writ petition came up for hearing today, the counsel for the petitioner submitted that he has filed Ext.P13 appeal invoking Section 509 (6) of the Kerala Municipality Act , 1994 and a stay petition before the Tribunal for Local Self Government Institutions, Thiruvananthapuram, against Ext.P11 notice. The petitioner submitted that he will be satisfied if a direction is given to the Tribunal to consider the appeal preferred by him.
4. The counsel for the 6th respondent resisted the writ petition and contended that the construction made by the petitioner is obviously illegal and unauthorised. Finding that the construction is illegal and unsustainable, notice was issued to the petitioner. Now, a final order has also been passed. The petitioner is therefore compellable to demolish the unauthorised construction.
5. The counsel for the respondent-Corporation, however, submitted that since the petitioner has already approached the Tribunal for Local Self Government Institutions, the matter can be left to be decided by the competent Tribunal in accordance with law.
Taking into consideration the entire facts and circumstances of the case and taking into consideration the fact that the petitioner has invoked statutory remedy by filing an appeal before the Tribunal for Local Self Government Institutions against Ext.P11 notice of the Corporation Authorities, the writ petition is disposed of directing the Tribunal for Local Self Government Institutions, Thiruvananthapuram to consider and pass orders on Ext.P13 appeal and Ext.P14 stay petition in accordance with law expeditiously. Till the Tribunal takes a decision either on Ext.P13 or on Ext.P14, no coercive proceedings shall be taken against the petitioner and the interim order passed by this Court on
26.08.2022 shall continue to enure to the benefit of the petitioner.
Sd/-
N. NAGARESH JUDGE
APPENDIX OF WP(C) 27732/2022 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE OCCUPANCY CERTIFICATE/USER CERTIFICATE DATED
21/6/2017.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 3/5/2021 ISSUED BY THE SECRETARY OF THE MUNICIPAL CORPORATION OF KOLLAM.
EXHIBIT P3 TRUE COPY OF THE PROCEEDING DATED
25/6/2021 FROM THE CHARGE OFFICER, SAKTHIKULANGARA ZONAL OFFICE OF THE KOLLAM MUNICIPAL CORPORATION.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED
28/6/2021 SUBMITTED BY THE PETITIONER BEFORE THE MAYOR, KOLLAM MUNICIPAL CORPORATION.
EXHIBIT P5 TRUE COPY OF THE PROCEEDING DATED
24/8/2021 ISSUED BY THE ASSISTANT ENGINEER, ZONAL OFFICE, SAKTHIKULANGARA, KOLLAM MUNICIPAL CORPORATION.
EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 17/9/2021. EXHIBIT P7 TRUE COPY OF THE CHALLAN DATED 30/9/2021.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 4/1/2022 FROM THE SECRETARY, KOLLAM MUNICIPAL CORPORATION, KOLLAM.
EXHIBIT P9 TRUE COPY OF THE REPLY DATED 18/2/2022 SUBMITTED BY THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED
11/6/2022.
EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 2/8/2022 ISSUED BY THE SECRETARY MUNICIPAL CORPORATION KOLLAM.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED
10/11/2017 IN W.P. (C) NO. 8330/2010 BEFORE THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P13 TRUE COPY OF THE MEMORANDUM OF APPEAL NO.590/2022 FILED BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.
EXHIBIT P14 TRUE COPY OF THE APPLICATION, I.A./2022 IN APPEAL NO.590/2022 DATED 13/9/2022 FILED BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, T
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