IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 20524 of 2004(R) -------------------------- PETITIONER(S): --------------- SHEELA SEBASTIAN, W/O.SEBASTIAN KANNIKAL KANNIKAL HOUSE, MARKET ROAD,(NORTH END0, KOMBARA, TATAPURAM P.O. KOCHI 14. BY ADV. SRI.GEORGE POONTHOTTAM SMT.RESMI G. NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT , LOCAL SELF GOVERNMENT (H) DEPT., GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, CORPORATION OF COCHIN, BOAT JETTY, ERNAKULAM. 3. THE COMMISSIONER OF POLICE, KOCHI CITY, ERNAKULAM. 4. THE SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, KOMBARA, ERNAKULAM. 5. K.G.AUGUSTINE, S/O.K.A.GEORGE, KANNIKAL HOUSE, MARKET ROAD(NORTH END0, KOMBARA, TATAPURAM P.O., KOCHI 14. ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,COCHIN COPN FOR R2 GOVERNMENT PLEADER SRI. DILIP MOHAN FOR R1,3 & 4 SRI.DINESH R.SHENOY FOR R5 SRI.G.HARIKRISHNAN (TRIPUNITHURA) FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 20524/2004. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 24-4-2003. EXT.P2 ORDER DT. 24-4-2003. EXT.P3 ORDER DT. 24-6-2003. EXT.P4 JUDGMENT IN W.P.C. NO. 16471/2003. EXT.P5 ORDER DT. 25-8-2003 IN R.P. 630/2003. EXT.P6 JUDGMENT IN C.C.C. N. 1249/2003. EXT.P7 GOVT. ORDER DT. 17-6-2004. EXT.P8 COMPLAINT DT. 1-7-2004. EXT.P9 COMPLAINT DT. 2-7-2004. EXT.P10 COMPLAINT DT. 6-7-2004. EXT.P11 PLAINT O.S. 469/2003 OF MUNSIFF COURT, ERNAKULAM. EXT.P12 EX PARTE INJUNCTION ORDER DT. 20-3-2003. EXT.P13 ORDER DT. 20-10-2003. EXT.P14 ORDER DT. 8-8-2003. EXT.P15 REPORT OF ADVOCATE COMMISSIONER IN O.S.1305/2003 EXT.P16 COMMON REPORT DT. 4.4.2006. EXT.P17 JUDGMENT DT. 27-7-2006 IN O.S.1305/2003 OF MUNSIFF COURT, ERNAKULAM. EXT.P18 JUDGMENT IN O.S.469/2003 OF MUNSIFF COURT, ERNAKULAM. EXT.P19 DECREE DT. 10-3-2006 IN O.S.469/2003.. RESPONDENTS' EXHIBITS: --------------------------------------- EXT.R2(a) TRUE COPY OF SITE PLAN. EXT.R5(a) PARTITION DEED NO. 372 OF 1953. EXT.R5(b) TRUE COPY OF REVISED PLAN. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 20524 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 8th day of April, 2010. J U D G M E N T The petitioner and the 5th respondent are neighbours. O.S. No. 469/2003 regarding a boundary dispute is pending before the Munsiff's Court, Ernakulam between them. The 5th respondent has constructed a building in his property. The petitioner approached the 2nd respondent complaining that the construction is in violation of the Kerala Municipality Building Rules. The Municipality found that the construction was, in fact, in violation of the Building Rules. They initiated appropriate action for such violation. The 5th respondent approached the Government by filing a petition. The Government passed Ext. P7 order in that petition. After finding that the allegation of violation of the Building Rules is correct, the Government directed the 2nd respondent to take steps to make necessary alterations in the construction so as to provide required open spaces as per Rules 24 (4), 24(5) and 25(1) of the Kerala Municipality Building Rules, 1999, after the dispute over the boundary is settled. The dispute referred to therein is O.S. No. 469/2003 before the Munsiff's Court, Ernakulam. The petitioner is challenging Ext. P7 order. 2. The petitioner is particularly aggrieved by the rider in Ext. P7 to the effect that the direction is to be complied with by the Secretary of the Corporation after the dispute over the boundary is settled. According to the petitioner, that dispute over the boundary has nothing to do with the violations. The petitioner would contend that even after that dispute is ultimately decided in favour of the 5th respondent, the violations would be there. 3. Counter affidavits and reply affidavit have been filed. 4. I have considered the rival contentions in detail. 5. At the time of passing Ext. P7 order on 17-6-2004, the Tribunal for Local Self Government Institutions constituted by the W.P.C. No. 20524/2004 -: 2 :- Government of Kerala was already functioning. Section 509 of the Kerala Municipality Act as well as the Kerala Municipality Building Rules provided for an appeal to the Tribunal against the orders passed by the Corporation. Sub-section (12) of Section 509 of the Kerala Municipality Act provided that all appeals and revisions filed and pending before any authority before the date of commencement of the Tribunal shall be handed over by such authority to the Tribunal. As such, the Government could not have validly passed orders on the petition dated 14-7-2003 filed by the 5th respondent against the orders of the Corporation and the Government ought to have forwarded the same to the Tribunal for Local Self Government Institutions as provided under Section 509(12) of the Kerala Municipality Act. 6. Accordingly, Ext. P7 is quashed. The Government is directed to transmit the petition dated 14-7-2003 filed by the 5th respondent to the Tribunal for Local Self Government Institutions within one month from the date of receipt of a copy of this judgment. On receipt of the same, the Tribunal for Local Self Government Institutions shall consider the same as an appeal before the Tribunal under the Kerala Municipality Act/Kerala Municipality Building Rules and dispose of the same on merits in accordance with law, after affording an opportunity of being heard to the petitioner, the 5th respondent and the Corporation. The writ petition is disposed of as above. S. Siri Jagan, Judge. Tds/