IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 3917 of 2009(N) ------------------------- PETITIONER(S): --------------- K.SOMASEKHARAN NAIR, S/O.KRISHNA PILLAI, S.K.V.BHAVAN,NEDUMANGADU, THIRUVANANTHAPURAM. BY ADV. SRI.J.DEVADANAM RESPONDENT(S): --------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION,THIRUVANANTHAPURAM. 2. THE SECRETARY,NEDUMANGAD MUNICIPALITY, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP; BY ITS SECRETARY, LOCAL ADMINISTRATION DEPARTMENT,STATE SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DEPUTY SUPERINTENDENT OF POLICE, NEDUMANGAD, THIRUVANANTHAPURAM. 5. THE CIRCLE INSPECTOR OF POLICE, NEDUMANGAD, THIRUVANANTHAPURAM. 6. MR.ABDUL RASHEED, CITADEL, GOVERNMENT LINKS ROAD, KOWDIAR, THIRUVANANTHAPURAM. ADV.P.RAMAKRISHNAN, SC GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 3917/09. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE PROCEEDINGS DTD.2.9.08 BY R2. P2. COPY OF THE ORDER IN O.P.NO.1253/08 OF THE OMBUDSMAN, TRIVANDRUM. P3. COPY OF THE STAY ORDER IN W.P.(C).No. 36217/08 OF THIS COURT. P4. COPY OF THE ORDER IN W.P.(C).No. 36217/08 OF THIS COURT. P5. COPY OF THE COUNTER AFFIDAVIT IN W.P.(C).No. 36217/08. P6. COPY OF THE ORDER IN APPEAL NO.665/08 OF R1 DTD.20.1.09. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.3917 of 2009 ================== Dated this the 17th day of February, 2009 J U D G M E N T The petitioner is aggrieved by the construction of a multi-storied building adjacent to the petitioner's residence, by the 6th respondent, which construction, according to the petitioner, is against law. The matter was earlier taken to the Tribunal for Local Self Government Institutions, in which Ext.P6 order has been passed, wherein the Tribunal had set aside the order of the Secretary of the Municipality, the 2nd respondent herein, directing demolition of the building and initiation of fresh proper proceedings as indicated in Ext.P6 order, under Section 406 of the Kerala Municipality Act, without any unnecessary delay, if there are any reasons for doing so. The petitioner's complaint is that while the matter is now pending before the 2nd respondent as directed in Ext.P6, the 6th respondent is continuing the construction. The petitioner, therefore, seeks the following relief: “(i) To issue a writ of Mandamus or any other appropriate writ, direction or order directing 2nd respondent Nedumangad Municipality to stop the illegal construction of building by 6th Respondent with the help of police till passing of final order as per Ext.P6” 2. Although notice had been served on the 6th respondent, he has not chosen to enter appearance and contest the matter, despite w.p.c.3917/09 2 giving sufficient time. The matter originally came up after service of notice on 12.2.2009, on which date, to enable the 6th respondent to appear and contest the matter, the matter was posted to today. Today also the 6th respondent has not chosen to appear. 3. I have heard the learned counsel for the petitioner as also the learned Standing Counsel appearing for the 2nd respondent- Secretary of the Municipality. 4. I am of opinion that although by Ext.P6 order the Tribunal had quashed the order earlier passed by the 2nd respondent under Section 406 of the Kerala Municipality Act, the 2nd respondent had been directed to initiate fresh proper proceedings under Section 406 of the Act. That being so, it is not proper for the 6th respondent to continue construction until the 2nd respondent decides the matter finally as directed in Ext.P6. Accordingly, this writ petition is disposed of with the following directions: The 2nd respondent shall pass final orders as directed in Ext.P6, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment, after affording an opportunity of being heard to the petitioner as well as the 6th respondent. Till orders are thus passed, respondents 2, 4 and 5 shall see that the 6th respondent does not undertake any construction which w.p.c.3917/09 3 is the subject matter of this writ petition. I make it clear that it would be open to the Secretary to consider the matter and decide in accordance with law either way and, the petitioner and the 6th respondent shall be informed the decision. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge