IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 OP.No. 4311 of 2002(L) ---------------------- PETITIONER(S): --------------- P.SREEDEVI KUNJAMMA, MANNAMPALLIL, PERINGALA, KAYAMKULAM. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR SMT.S.LAKSHMI RESPONDENT(S): --------------- 1. KAYAMKULAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KAYAMKULAM. 2. P.GANAKUMAR, KUZHIKKALA THARAYIL HOUSE, PERINGALA, KAYAMKULAM. 3. M.SABINA PAUL, SECRETARY, KAYAMKULAM MUNICIPALITY, KAYAMKULAM. ADV. SRI.R.RAYA SHENOY FOR R1 SRI.R.PRASANTH KUMAR FOR R1 SRI.R.SUDHIR SHENOI FOR R1 SMT.ANJU DIVAKARAN FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 4311/2002. --------------------------------------------------------------- EXT.P1 TRUE COPY OF PROCEEDINGS DT. 18-1-2002. EXT.P2 PLAINT IN O.S.NO. 117/2001 OF THE SUB COURT, MAVELIKKARA. EXT.P3 REPORT IN O.S. NO. 117/2001. EXT.P4 ORDER DT. 5-6-2001. EXT.P5 MEMO DT. 5-6-2001. EXT.P6 OBJECTION DT. 11-7-2001. EXT.P7 LAWYER NOTICE DT. 8-1-2002. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 4311 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd October, 2009. J U D G M E N T The petitioner is the owner of a property in respect of which the 1st respondent-Municipality has initiated proceedings under Section 406 of the Kerala Municipality Act on the ground that without obtaining development permit from the Municipality, the petitioner has filled up a low lying land, thereby causing obstruction to free flow of water. According to the petitioner, this is a collusive proceedings at the instance of the 2nd respondent, who is a politician and inimical towards the petitioner. It is also stated therein that the 2nd respondent is a student of the petitioner. The petitioner was originally served with a provisional order under Section 406 to which the petitioner filed detailed objections. Thereafter, the petitioner was served with Ext. P1 order in a printed form confirming the provisional order. The petitioner is challenging Ext. P1 order. 2. The petitioner would contend that earlier, there was a suit between the petitioner and the 2nd respondent wherein Ext. P3 commission report was filed in favour of the petitioner. It is under the above circumstances that the 2nd respondent has prevailed upon respondents 1 and 3 to issue Ext. P1 order on the petitioner, is the allegation raised by the petitioner. The petitioner contends that on a very reading of Ext. P1, it is abundantly clear that the same has not been passed after applying mind. According to the petitioner, it has been issued in a printed form, wherein the name of the petitioner and that of the Secretary has been inserted, wherein none of the contentions raised by the petitioner have even been referred to. 3. A detailed counter affidavit has been filed by the Municipality taking the contention that the petitioner has unauthorisedly filled up the land without obtaining a development permit thus violating the provisions of the Kerala Municipality Act and Rules. Therefore, O.P. No. 4311/2002 -: 2 :- according to Municipality, the Municipality was perfectly justified in issuing Ext. P1 order. 4. I have considered the rival contentions in detail. 5. I am not inclined to consider the merits of the contentions of the Municipality insofar as I have no option but to uphold the contention of the petitioner that Ext. P1 order has been passed without application of mind. Ext. P1 is actually in a printed form. Only number, date, reference and name of the petitioner and that of the Secretary have been inserted. There is absolutely no mention whatsoever regarding the contentions of the petitioner against the provisional order. I am of opinion that this is not the way a Municipality should pass orders under Section 406. Section 406 stipulates issue of a provisional order giving opportunity to the person against whom that order is issued to place his objections before the Secretary of the Municipality and the Secretary is bound to consider those objections on merits. Ext. P1 does not show that the objection of the petitioner has been considered at all. For that reason alone, Ext. P1 is liable to be quashed. I do so. 6. Counsel for the Municipality makes a fervent plea to leave open the right of the Municipality to pass fresh orders. More than eight years have elapsed after passing Ext. P1 order and there was an interim order of stay in this case. In view of the above circumstances, I do not express any opinion in respect of the plea of the Municipality in that regard. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/