IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 3574 of 2009(A) ------------------------- PETITIONER(S): --------------- 1. MUHAMMED, S/O.IBRAHIM, AGED 45 YEARS MUNDACKAL HOUSE, IRINGOLE KARA, PERUMBVOOR. 2. NAZER, S/O.IBRAHIM, 40 YEARS, MUNDACKAL HOUSE, IRINGOLE KARA, PERUMBAVOOR. BY ADV. SRI.P.ALI SRI.T.ANCY RESPONDENT(S): --------------- 1. SECRETARY, PERUMBAVOOR, MUNICIPALITY PERUMBAVOOR. 2. CHAIRMAN PERUMBAVOOR MUNICIPALITY PERUMBAVOOR. ADV. SRI.V.M.KURIAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.3574 of 2009 ================== Dated this the 27th day of February, 2009 J U D G M E N T The petitioners obtained a permit for construction of a building from the 1st respondent. While they were constructing that building, proceedings were initiated against the petitioners under Section 406 of the Kerala Municipality Act alleging violation of the approved plan and the building rules. The matter was taken up to the Tribunal twice. Both times the Tribunal quashed the orders passed by the Municipality and directed the Secretary of the Municipality to take fresh proceedings. Ext.P16 is the latest one in which the Secretary was directed to initiate proper proceedings under Section 406 of the Municipality Act and under Rule 16 of the Municipality Building Rules, without any unnecessary delay if there are any reasons for doing so. That order was passed on 12.6.2008. The Secretary of the Municipality after 6 months has now issued Ext.P17 order dated 10.1.2009 directing the petitioners to produce a revised plan purportedly pursuant to Ext.P16 order. The petitioners are challenging Ext.P17 order in this writ petition on the ground that the same is in flagrant violation of the order of the Tribunal. 2. The petitioners contend that Ext.P17 is a classic example of harassment meted out by the Municipality to the petitioners. The 2 petitioners contend that the Municipality has been repeatedly issuing memos stating one or other unsustainable reasons for interdicting the construction, which the petitioners have been making in accordance with the approved plan, which according to the petitioners, is with ulterior motives. The petitioners submit that originally the reason stated was that they have constructed pillars without sanction. According to the petitioners, the approved plan itself contains pillars which only have been constructed by the petitioners. Now without any finding regarding any violation of the approved plan or any building rules, by Ext.P17, the petitioners have been directed to submit a revised plan, that too, when by Ext.P16 the Tribunal has directed the Secretary to proceed under Section 406 of the Kerala Municipality Act and Rule 16 of the Municipality Municipality Building Rules. 3. The Municipality with the help of a counter affidavit opposes the contentions of the petitioners. 4. I have heard both sides. 5. The counsel for the Municipality could not satisfy me that Ext.P17 is in accordance with Ext.P16 order of the Tribunal. In Ext.P16 order the Secretary was directed to initiate fresh proceedings under Section 406 and Rule 16. Evidently Ext.P17 is not a order either under Section 406 or Rule 16. Further, I am satisfied that without setting aside the approved plan or without a categoric finding that the plan 3 itself is violative of the building rules, the Secretary cannot under law direct the petitioners to submit a revised plan. From the conduct of the 1st respondent it is clear that the allegation of the petitioners regarding harassment is not without basis. Therefore, Ext.P17 is clearly unsustainable. Accordingly the same is quashed leaving the Secretary to take appropriate proceedings as directed in Ext.P16 order of the Tribunal. However, since prima facie I find that the petitioners are being put to inconvenience because of repeated and illegal orders of the Secretary, the Secretary shall take care that any further proceedings shall strictly be in accordance with law and any order to be passed shall also contain cogent reasons supported by clear evidence for the actions to be taken. The Secretary is warned that any further transgressions would be viewed very seriously, if it comes up before this Court. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 4 ///True copy/// P.A. to Judge