IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WA.No. 994 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.34808/2003 Dated 18/09/2009 .................... APPELLANT/PETITIONER: --------------------------- SREEKUMAR, S/O. PARAMESWARAN NAIR, AGED 35 YEARS, RESIDING AT GOVINDA VILASOM, ATHIYANOOR, ARALUMMOODU P.O. BY ADV. SRI.K.J.GEORGE KUNNUMPURATH RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, NEYYATTINKARA MUNICIPALITY. 3. MADHAVAN PILLAI, KALAVIHAR, PATHANKALLE, ATHIYANNOOR, NEYYATTINKARA. R1 BY SENIOR GOVT. PLEADER, SMT. K. MEERA. R2 BY ADV. SRI. PIRAPPANCODE V. SUDHEER. R3 BY ADV. SRI. L. MOHANAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, CJ. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 994 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2010 JUDGMENT J.Chelameswar, CJ. The unsuccessful writ petitioner in W.P.(C) No.34808 of 2003 has preferred the present appeal, aggrieved by the judgment in the said writ petition dated 18.09.2009. 2. The appellant and the third respondent are the residents of the same locality. The appellant is residing at Gonvinda Vilasom, Athiyannoor, Aralumoodu P.O., Neyyattinkara and the third respondent at Kalavihar, Pathankalle, Athiyannoor, Neyyattinkara. It is asserted in the writ petition that the ingress and egress to the appellant's residence is through “Punnarthala Sub Road”. It is further asserted by the appellant that the said road is the only means of access to the house of the appellant. According to the appellant, the width of the said road is 12 feet. The third respondent also is a resident of the locality with access of the abovementioned road. According to the appellant, the third WA No. 994 of 2010 -:2:- respondent had renovated his house and in connection with the renovation work, the old compound wall on the western side was demolished and a new compound wall was built. It is further alleged that the third respondent has put up a cattle shed with tiled roof touching the southern compound wall of the third respondent. According to the appellant, the roof of the cattle shed “perculates to the open space of the said compound wall”. The substance, we can make out in so far as our ability permits, is that the appellant has a grievance regarding the construction of the abovementioned cattle shed on the ground that the roof of the said cattle shed projects into the abovementioned pathway and such a projection is impermissible under law and it is the further complaint of the appellant that the construction of the above referred compound wall and the cattle shed was without any appropriate permission from the Neyyattinkara Municipality. 3. With the abovementioned grievance the appellant herein approached the second respondent. On receipt of the complaint of the appellant, the second respondent issued WA No. 994 of 2010 -:3:- Ext.P3 order directing the third respondent herein to forthwith stop the construction of the shed and also to remove the construction made till then, forthwith. The order reads as follows: “It has been brought to the notice of the undersigned that a shed is being constructed in 10th Ward of this Municipality without obtaining approved plan of the Municipality and against the provisions of Building Rules under 1994 Act. You are hereby directed to stop the Construction of the same forthwith under Section 406(1) of the Municipality Act and Rules 18 & 19 of the Building Rules. You are also directed to remove the same within 3 days of the receipt of this order. You are also informed that if you make any violation of the proceedings, prosecution proceedings will be taken against you under Section 406(3) of the Act and the shed will be demolished. If you have any objection to the above proceedings, the same may be filed within 3 days of the receipt of this proceedings under Section 406(2) and Rule 18 and19 of the Building Rules.” 4. Eventually, a final order (Ext.P4) in this regard came to be passed on 01.12.2002 purporting to be one under Section 406 of the Kerala Municipality Act, 1994 confirming the directions given under Ext.P3. Aggrieved by the said Ext.P4 WA No. 994 of 2010 -:4:- order, the third respondent herein carried the matter in appeal before the first respondent. During the pendency of the appeal, the first respondent directed that operation of Ext.P4 order be stayed for a period of one month. 5. Aggrieved by such interim arrangement made by the first respondent, it appears from the writ petition that the appellant herein approached the Minister for Local Self Government praying that the interim order granted by the first respondent be vacated. We make it clear that the Kerala Municipality Act does not confer any such power on the Minister. However, it appears that the Minister did not take any action on the representation made by the appellant. Not satisfied with the course of events mentioned above, the appellant herein had earlier approached this Court in W.P.(C) No.19601 of 2003, obviously complaining that the first respondent should take immediate decision on the appeal pending before him. The said writ petition was disposed of by an order dated 23.06.2003 directing that the appeal be disposed of with an opportunity of hearing to the appellant WA No. 994 of 2010 -:5:- herein. Eventually the said appeal came to be disposed of by Ext.P7 order dated 23.10.2003. The appeal was allowed in part (the details of which are not necessary for the present purpose). However, in so far as the objectionable portion of the roof of the cattle shed is concerned, the appellate order directed the third respondent to remove the said roof to an extent of 60 cms projecting into the pathway. Challenging Ext.P7 order, the appellant herein approached this Court by way of a writ petition from out of which the instant appeal arises. 6. The substance of Ext.P7 is that the construction which was objected to by the appellant herein was an old construction within the property of the third respondent. The relevant portion of the order reads as follows: “The construction said to have been made unauthorisedly is an old one and the compound wall and shed are in the owner's property. Hence the order dated 08.11.02 of the Municipal Secretary is cancelled and the request of Ext.P5 is rejected. The 3rd respondent (Madhavan Pillai) will remove the roof projection of 60 cm into the pathway and if not Municipality will take steps for removing it as per rules” WA No. 994 of 2010 -:6:- 7. By the judgment under appeal a learned Judge of this Court came to the conclusion that there was no jurisdictional error or legal infirmity in the impugned proceedings and it was passed after taking into consideration all the necessary materials on record by the first respondent, competent authority. The first respondent came to the conclusion that the construction of compound wall and the shed which is the subject matter of the dispute in the instant proceedings, is consequent upon the damage caused to the said compound wall and the shed by some miscreants. It appears from Ext.P7 that such damage was caused on the night, on 09.12.1995, when some unknown persons demolished the then existing cattle shed of the third respondent and compound wall attached to it and in that regard a Crime, No.372/95, was registered in the Neyyattinkara Police Station. By the judgment under appeal the learned Judge recorded that the conclusion reached by the first respondent in Ext.P7 did not call for any interference. We do not see any reason to take a different view than WA No. 994 of 2010 -:7:- the one taken by the learned Judge. The Writ Appeal is therefore dismissed at the admission stage. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb