IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 22042 of 2010(E) -------------------------- PETITIONER(S): --------------- THOMAS K.C., S/O. CHACKO K.O., AGED 48 YEARS, KARUKAMALIL HOUSE, KARAPARAMBA, P.O.VENGERI, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 010 DISTRICT. BY ADV. SRI.SHYAM PADMAN SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU SMT.M.LISHA RESPONDENT(S): --------------- THE SECRETARY, CHENGOTTUKAVU GRAMA PANCHAYAT, EDAKKULAM P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 306. BY ADV. SRI.P.J.MATHEW FOR R1 SRI.THOMAS JOHN AMBOOKEN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.22042 of 2010 EXT.P1 NOTICE DT. 19.6.2009 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXT.P2 REPLY DATED 2.7.2009 AND ENCLOSURES. EXT.P3 ORDER DATED 16.7.2009 ISSUED BY THE FIRST RESPONDENT. EXT.P4 REPLY DATED 4.8.2009 EXT.P5 APPLICATION FOR LICENCE DATED 18.10.2009 DULY RECEIVED AT THE OFFICE OF THE CHENGOTTUKAVU GRAM PANCHAYATH ON 20.10.2009 EXT.P6 APPLICATION FOR REGULARISATION DATED 10.11.2009 ALONG WITH PLAN AND CONNECTED RECORDS. EXT.P7 JUDGMENT DATED 25.11.2009 IN W.P.(C) NO.33956/2009 EXT.P8 ORDER DATED 20.2.2010 IN APPEAL NO.1042/2009 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P9 ORDER DATED 19.3.2010 PASSED BY THE RESPONDENT. EXT.P10 MEMORANDUM OF APPEAL IN A.NO.371 OF 2010 DATED 20.4.2010 SUBMITTED BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TVM. EXT.P11 WRITTEN STATEMENT FILED BY THE RESPONDENT IN APPEAL NO.371 OF 2010 EXT.P12 ORDER DATED 1.7.2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSITUTITONS, THIRUVANANTHAPURAM IN APPEAL NO.371 OF 2010 //TRUE COPY// P.A. TO JUDGE P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No. 22042 of 2010 ------------------------------- Dated this the 16th day of September, 2010 J U D G M E N T The petitioner is the proprietor of 'Fathima Matha Boat Works', a business concern engaged in boat building, repairs and allied works. He had admittedly put up a building for the said purpose without obtaining the requisite permission from the Panchayat. Long after the building was constructed, he submitted the original of Ext.P6 application to the respondent for regularisation of the said building invoking the power of the respondent under Chapter 20 of the Kerala Municipality Building Rules, 1999. When the application was kept pending, he filed W.P.(C) No.33956 of 2009 in this Court. By Ext.P7 judgment delivered on 25.11.2009, a learned single Judge of this Court disposed of the writ petition with a direction to the respondent to take a decision on the said application in accordance with law. Pursuant to the said direction, the respondent considered Ext.P6 application and rejected it by order passed on 19.11.2009. 2. Aggrieved by the said order, petitioner filed Appeal No.1042 of 2009 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. By Ext.P8 order passed on 20.2.2010, the said appeal was allowed and the respondent was W.P.(C) No.22042 of 2010 2 directed to reconsider the application for regularisation and pass fresh orders thereon within one month. The respondent thereafter passed Ext.P9 order dated 19.3.2010 again rejecting the application for building permit on the ground that the disputed construction offends the Coastal Regulation Zone notification. The petitioner thereupon filed Appeal No.371 of 2010 (Ext.P10) before the Tribunal for Local Self Government Institutions. The respondent resisted the said appeal. By Ext.P12 order passed on 1.7.2010, the Tribunal held that as the disputed construction is one which violates rules 58 (3a) of the Kerala Municipality Building Rules, 1999, the application for regularisation was not in order. The appeal was accordingly rejected with a direction to the petitioner to demolish the building within 15 days. Aggrieved thereby, this writ petition is filed. 3. It is contended that the Tribunal was only called upon to decide whether there is any violation of the Coastal Regulation Zone notification and that the Tribunal erred in holding that the building is one put up in violation of rule 58(3a) of the Kerala Municipality Building Rules, relying solely on the entry in coloumn 5 of Ext.P6 application. It is contended that the finding of the Tribunal is W.P.(C) No.22042 of 2010 3 rested on a special pleading and that the rejection of the appeal on the ground set out in Ext.P12 cannot be sustained. The respondent has filed a counter affidavit wherein relying on the statement in Coloumn-5 of Ext.P6 application, it is contended that the building is used for the purpose of storage and has an area of more than 300 Square Meters, and therefore, the violation of rule 58(3a) of the Kerala Municipality Building Rules pointed out by the Tribunal would justify the dismissal of the appeal. 4. I heard Sri.Shyam Padman, learned counsel appearing for the petitioner and Sri.P.J.Mathew, learned standing counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. The learned counsel for the petitioner submitted relying on the statements in Ext.P1 notice issued by the respondent; Ext.P3 order issued by the respondent; Ext.P5 application for licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996; Ext.P9 order which was impugned in the appeal and Ext.P11 objections filed by the respondent before the Tribunal for Local Self Government Institutions, that the respondent was aware that the building was W.P.(C) No.22042 of 2010 4 used as a boat building yard and to carry out the repairs and the statement in coloumn 5 of Ext.P6 application that the occupancy is for storage is erroneous. The learned counsel contended that, in such circumstances, the Tribunal erred in relying on the solitary statement in Ext.P6 application to hold that the building violates rule 58(3a) of the Kerala Municipality Building Rules. The learned counsel also contended that apart from merely stating that the building is one put up in violation of rule 58(3a) of the Kerala Municipality Building Rules, the Tribunal has not held in what manner the rule is violated. Per contra, Sri.P.J.Mathew, learned standing counsel appearing for the respondent, relying on the averments in the counter affidavit supported the order of the Tribunal. 6. It is evident from Exts.P1, P3, P5, P9 and P11 that the disputed structure is being used as a boat building yard. The Panchayat had also understood the activity being carried on therein as boat building activity. The respondent had no case when he passed Ext.P9 order that the building falls in Group-H category thereby attracting rule 58(3a) of the Kerala Municipality Building Rules. The respondent had no case before the Tribunal that the W.P.(C) No.22042 of 2010 5 building falls in Group-H storage category. In such circumstances, I am of the opinion that the Tribunal erred in holding that the application for regularisation was liable to be rejected on the ground that the building is one put up in violation of rule 58(3a) of the Kerala Municipality Building Rules. The only question that arose for consideration in the appeal was whether the rejection of the application for regularisation on the grounds stated in Ext.P9, viz., violation of Coastal Regulation Zone notification is in order. The Tribunal did not decide the said issue when it passed Ext.P12 order. In such circumstances, I am of the opinion that the Tribunal should reconsider Ext.P10 appeal confining itself to the pleadings of both parties and take an appropriate decision in the matter. Having regard to the fact that the petitioner's application for regularisation has been pending for the past one year, the Tribunal should endeavour to dispose of the appeal expeditiously. In the result, I allow the writ petition, quash Ext.P12 order, restore Appeal No.371 of 2010 to file and direct the Tribunal for Local Self Government Institutions to rehear the said appeal and pass revised orders thereon expeditiously and in any event, within W.P.(C) No.22042 of 2010 6 two months from the date of receipt of a certified copy of this judgment. The contentions of both sides are kept open. P.N.RAVINDRAN, Judge. nj.