IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 34808 of 2003(R) ---------------------------------------------- PETITIONER(S): ------------------------ SREEKUMAR, S/O. PARAMESWARAN NAIR, AGED 35 YEARS, RESIDING AT GOVINDA VILASOM, ATHIYANOOR, ARALUMMOPDU. P.O. BY ADVS. MR.JOHN JOSEPH(ROY), MR.K.J.GEORGE KUNNUMPURATH. RESPONDENT(S): --------------------------- 1. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, NEYYATTINKARA MUNICIPALITY. 3. MADHAVAN PILLAI, KALAVIHAR, PATHANKALLE, ATHIYANNOR, NEYYATTINKARA. R1 BY GOVERNMENT PLEADER SMT. V.MANU R2 BY ADVS.MR.PIRAPPANCODE V.SREEDHARAN NAIR, MR.PIRAPPANCODE V.S.SUDHIR R3 BY ADV. MR.L.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34808/2003R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE BROCHURE OF ROAD WORKS INCLUDED IN FIVE YEAR PLAN OF NEYYATTINKARA MUNICIPALITY. P2(A): COPY OF THE PHOTOGRAPHS OF NEW CONSTRUCTION. P2(B): COPY OF THE PHOTOGRAPHS OF NEW CONSTRUCTION. P3: COPY OF THE ORDER DTD. 8/11/02. P4: COPY OF THE FINAL ORDER DTD. 1/12/2002. P5: COPY OF THE REPRESENTATION DTD. 21/12/2002 BY PETITIONER. P6: COPY OF THE JUDGMENT DTD. 23/06/2003 IN WPC.NO.19601/03. P7: COPY OF THE ORDER DTD. 29/10/2003 BY DEPUTY SECRETARY OF LOCAL SELF GOVERNMENT. RESPONDENT'S EXHIBITS: R3(A): COPY OF THE DECREE IN O.S.913/1991. R3(B): COPY OF COMMISSIONER'S REPORT AND PLAN. R3(C): COPY OF FIR IN CRIME NO.572/1995. R3(D): COPY OF THE MAHZAR REPORT. R3(E): COPY OF SETTLEMENT DEED DTD. 14/09/1994. R3(F): COPY OF OBJECTION ON 11/11/02. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.34808 OF 2003 ------------------------------------------- Dated this the 18th day of September, 2009 JUDGMENT 1.The petitioner challenges Ext.P7 Government Order. 2.The third respondent carried out certain constructions. Ext.P3, a provisional order, was issued to demolish that cattle shed and a compound wall. The petitioner moved this Court seeking a direction that Ext.P3 order be enforced. When W.P (C).19601/03 came up for hearing on 23.6.2003, this Court noted that there was an interdicting order passed by the Government. Accordingly, parties were relegated as per Ext.P6 judgment for consideration of the matter by the Government. In the meanwhile, on 1.12.2002, Ext.P4 final order was issued following Ext.P3. The Government obtained the report of the Senior Town Planner having regard to the report that was earlier available from the municipal authorities and ultimately issued the impugned Ext.P7 after hearing the necessary parties. WPC.34808/03 Page numbers 3.The impugned order is attacked on different grounds. Firstly, it is pointed out that Ext.P7 has been issued by the Deputy Secretary to Government and that the said officer was incompetent to issue such decision. Secondly, it is pointed out that Ext.P3 had merged in Ext.P4 final order and Ext.P7 could not have been issued overlooking Ext.P4 since the matter placed before the Government by the third respondent was a challenge to Ext.P3 provisional order. 4.Learned counsel for the third respondent pointed out that Ext.P4 order was also subject matter of challenge and there is no reason to state that Ext.P7 was issued only on a consideration of Ext.P3 provisional order. It is further pointed out that at the relevant time, by virtue of Section 509(5) of the Kerala Municipality Act, 1994, the authority to hear appeals was the Government and therefore, there is no jurisdictional error or legal infirmity in the impugned order. WPC.34808/03 Page numbers 5.Section 509(5) provides for an appeal to the Government and it was long thereafter that the provision was amended paving way for the Tribunal for LSGI. But the constitution of that Tribunal was also delayed and this Court had also directed that till the Tribunal is constituted, amendment could not be operative and the Government would continue to retain the power to hear. Ext.P7 is a Government Order. It is issued under the order of the Governor. The fact that the Deputy Secretary has signed that order is of no consequence. The competence of the officer in the Government who heard the appeal may be relevant. It is not shown that the Deputy Secretary to Government is incompetent to hear an appeal under Section 509(5) of the Act. Ext.P7 is an institutional decision. Nothing is pointed out to show that the Deputy Secretary who heard the appeal has not drawn up that order. The same cannot be faulted on any jurisdictional issue. 6.Adverting to the contents of Ext.P7, it can be seen that the said G.O. is issued after duly adverting to and considering the WPC.34808/03 Page numbers scope of the directions of the judgment issued by this Court in W.P(C).19601/03 and after hearing necessary parties. The entire facts have been marshelled in the impugned G.O. taking into consideration the stand taken by the municipal engineer and the municipal secretary, the Government had directed the Town Planner (Vigilance) to conduct a site inspection and offer remarks. The Senior Town Planner reported that the shed is an old one and some patch/repair works were done recently. It was also reported that the compound wall and the shed are in the owner's property. It was noted that 60 cm of the roof (tiled roof) of the shed projects into the pathway. The pathway seems sufficient for passage of cars, it was reported. The projection of the roof into the pathway was not to be allowed and if the municipality wishes to widen the pathway, they have to notify it and acquire the required land unless the land is surrendered free of cost by the land owners voluntarily. This report of the Town Planner was taken into consideration by the Government and the impugned order has been issued by directing that the decision WPC.34808/03 Page numbers of the municipal secretary will stand modified and the direction would be only to remove the roof projection of 60 cm into the pathway and the municipality shall take steps for removing it, if it is not removed by the third respondent herein. 7.A reading of the impugned order clearly shows that the ground realities and facts have been considered, all necessary aspects of the matter gone into, relevant materials reckoned and a decision has been issued by the competent authority. Complete justice has been done while passing the impugned order. With that, there is no jurisdictional error or legal infirmity in the impugned proceedings. In the result, the writ petition fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.22/9.