IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 WP(C).No. 35470 of 2009(C) ---------------------------------------- PETITIONER(S): ---------------------- R.F.MOTORS(P)LTD,SKYLINE GATEWAY APARTMENTS,PATHADIPALAM,KOCHI-682 033,REPRESENTED BY ITS ASSISTANT GENERAL MANAGER,ANOOP.P.A. BY ADVA. MR.ANIL S.RAJ SMT.K.N.RAJANI MR.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER RESPONDENT(S): ------------------------- 1. THE KALAMASSERY MUNICIPALITY, CHAMGAMPUZHA NAGAR.P.O,KOCHI-682 033,REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY,KALAMASSERY MUNICIPALITY, CHANGAMPUZHA NAGAR.P.O,KOCHI-682 033. 3. ABDUL MAJEED,S/O.HASSAN,ELLICKAL HOUSE, PATHADIPALAM,KOCHI-682033. 4. K.H.MOHAMMED ALI,S/O.HASSAN,ELLICKAL HOUSE,PATHADIPALAM,KOCHI-682033. 5. K.H.ABDUL SALAM,S/O.HASSAN,ELLICKAL HOUSE,PATHADIPALAM,KOCI-682033. 6. UCO BANK,M.G.ROAD BRANCH,RAVIPURAM, KOCHI-682016. 7. N.A.SHERIFFA,ANJIKATH HOUSE, VBM ROAD,PATHADIPALAM,KOCHI-682033. W.P.(C) NO.35470/2009 8. A.K.NAZAR,ANJIKATH HOUSE,VBM ROAD, PATHADIPALAM,KOCHI-682033. 9. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,THIRUVANANTHAPURAM. R1 BY ADV. MR.M.K.ABOOBACKER, SC R3 TO R5 BY ADVS.MR.L.RAJESH NARAYAN, SMT.LAKSHMI.N.KAIMAL, SRI.RENJITH B.MARAR. R6 BY MR.KODOTH SREEDHARAN R7 BY MR.O.V.MANIPRASAD R8 BY MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), MR.A.R.DILEEP, MR.GEORGE RAJU, SMT.SURYA SASI . R9 BY GOVT. PLEADER MR.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.( C) NO.35470/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE OBJECTION FILED BEFORE THE 2ND RESPONDENT DTD. 21.6.08. P2:- COPY OF THE NOTICE TO THE 2ND RESPONDENT DTD. 27.6.08. P3:- COPY OF THE FRESH APPLICATION SUBMITTED BY THE PETITIONER DTD. 4.3.09. P4:- COPY OF THE OBJECTION TO P3 BEFORE THE 2ND RESPONDENT DTD. 16.3.2009. P5:- COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD. 30.5.09. P6:- COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT IN WPC. 11973/09 DTD. 4.6.09. P7:- COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 31.7.09. P8:- COPY OF THE MEMORANDUM OF APPEAL OF RESPONDENTS 7 & 8 DTD. 10.8.09. P9:- COPY OF THE ODER OF THE TRIBUNAL DTD. 16.9.09. P10:- COPY OF THE NOTICE ISSUED BY THE COUNCIL DTD. 6.10.09. P11:- COPY OF THE ORDER OF THE COUNCIL DTD. 13.10.09. P12:- COPY OF THE CONSEQUENTIAL ORDER ISSUED BY THE 2ND RESPONDENT DTD. 20.10.09. P13:- COPY OF THE COMMUNICATION GIVEN BY COUNSEL FOR RESPONDENTS 3 & 4 DTD. 23.11.09. P14:- COPY OF THE PAY- IN SLIP DTD. 20.11.09. P15:- COPY OF THE R.P 100 / 09 (WITHOUT EXHIBITS). P16:- COPY OF THE COUNTER AFFIDAVIT OF THE PETITIONER TO P15. P17:- COPY OF THE ORDER OF THE 9TH RESPONDENT DTD. 25.10.09. P18:- COPY OF THE NO OBJECTION CERTIFICATE GIVEN BY THE 8TH RESPONDENT DTD. 12.7.05. P19:- COPY OF THE ORDER OF THE 9TH RESPONDENT DTD. 11.12.08 DISMISSING THE APPEAL FILED BY RESPONDENTS 7 & 8. W.P.(C) NO.35470/2009 P20:- COPY OF THE CHANGE OF OCCUPANCY DTD. 21.5.09 GRANTED TO RESPONDENTS 3 TO 5 AND THEIR LATER BROTHER. P21:- COPY OF THE PLAINT IN OS. 962/09 FILED BY RESPONDENTS 7 & 8 BEFORE THE SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS R6(a):- COPY OF THE NOTICE DTD. 21.4.08 ISSUED BY THE RESPONDENT BANK TO RESPONDENTS 4 AND 5. R6(b):- COPY OF THE JUDGMENT DTD. 26.10.09 BY THIS HONOURABLE COURT. R7(a):- COPY OF THE COMPLAINTS FILED BEFORE THE IST RESPONDENT ON 12.6.09 AND 11.12.09. R7(b):- COPY OF THE ORDER DTD. 16.3.07 OF THE 2ND RESPONDENT. R7(c):- COPY OF THE LETTER NO.PW 4475/08 DTD. 7.7.09. R7(d):- COPY OF THE JUDGMENT DTD. 11.8.08 IN WPC. 20634/08. R7(e):- COPY OF THE APPLICATION FOR LICENSE SUBMITTED BY THE PETITIONER. R7(f):- COPY OF THE LETTER DTD. 21.10.08. R7(g):- COPY OF THE LETTER DTD. 18.11.08 OF THE SENIOR TOWN PLANNER, ERNAKULAM. R7(h):- COPY OF THE ORDER DTD. 15.12.08 IN CONTEMPT CASE NO.1458/08. R7(i):- COPY OF THE JUDGMENT DTD. 17.12.08 IN WPC. 37135/08. R7(j):- COPY OF THE ORDER ISSUED BY THE CHIEF TOWN PLANNER ON 9.2.09. R7(k):- COPY OF THE NOTICE DTD. 14.5.09 ISSUED BY THE 2ND RESPONDENT. R7(l):- COPY OF THE APPLICATION FOR ADDING A FURTHER GROUND IN THE APPEAL MEMORANDUM. R7(m):- COPY OF THE JUDGMENT DTD. 12.8.09 IN WPC. 19106/09. R7(n):- COPY OF THE NOTICE DTD. ISSUED BY THE 2ND RESPONDENT. R7(o):- COPY OF THE JUDGMENT DTD. 21.10.09 IN WPC. 29317/09. R8(a):- COPY OF THE APPLICATION BEFORE THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD. W.P.(C) NO.35470/2009 R8(b):- COPY OF THE APPLICATION FOR LICENSE BEFORE THE IST RESPONDENT. R8(c):- COPY OF THE APPLICATION FOR CONSENT MADE BEFORE THE KERALA STATE POLLUTION CONTROL BOARD. R8(d):- COPY OF THE COMPLAINT FILED BY THE 7TH RESPONDENT ALONG WITH ANNEXURES BEFORE THE 2ND RESPONDENT. R8(e):- COPY OF THE G.O.(MS) NO.143/07/LSGD DTD. 31.5.07. R8(f):- COPY OF THE ORDER NO.D2/11582/08/DDS DTD. 9.2.09 OF THE TOWN PLANNER. TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.35470 OF 2009 (C) -------------------------------------------------- Dated this the 22nd day of January, 2010 J U D G M E N T The main challenge in the writ petition is against Ext.P17, an order passed by the Tribunal for Local Self Government Institutions in R.P.Nos.100 and 106 of 2009 filed by respondents 7 and 8 respectively. 2. Petitioner herein submitted Ext.P3 application for licence to establish an automobile workshop and a service station. Though initially, the Secretary of the Municipality passed Ext.P5 order, pursuant to Ext.P6 judgment of this Court in WP(c). No.11973/09, parties were again heard and Secretary issued Ext.P7 order, operative portion of which reads as under; “Having considered all the facts and circumstances stated above, the licence application of M/s.R.F.Motors is for the time being determined with the following orders; On this basis of the site approval by the Chief Town Planner, No Objection Certificate from the District Medical Officer, 'Consent to Operate' from the WPC.No.35470 /09 :2 : Pollution Control Board, the reports of the Municipal Engineer and the Health Inspectors, the applicant is entitled for the grant of installation permit upon fulfilling the condition that he constructs a compound wall of 2.5 meters height as stipulated in the NOC given by the DMO. But since there I the issue of the bank loan and this issue is under judicial determination, permission can be granted only on a direction from the court.” 3. Against this order, respondents 7 and 8 filed appeal before the first respondent, a copy of which is Ext.P8. Against Ext.P7 order itself respondents 3 to 5 also has filed appeal No.687/09 before the Tribunal for Local Self Government Institutions. By Ext.P9 order the Tribunal held that the appeal is maintainable only before first respondent and on that basis disposed of the appeal by Ext.P9 order relegating the appellants, to pursue their appellate remedy before the first respondent. 4. On the aforesaid two appeals first respondent passed Ext.P11 resolution Nos.15 and 16 dated 13.10.2009, resolving to grant licence in favour of the petitioner. In pursuance to Ext.P11, WPC.No.35470 /09 :3 : the Secretary of the Municipality issued Ext.P12 order. Against Ext.P11 respondents 7 and 8 filed Ext.P15 revision before the Tribunal which was numbered as revision petition No. 100/2009. Similarly, the 6th respondent Bank filed revision petition No.106/2009. Revision petitions were heard by the Tribunal and disposed of by Ext.P17 order, allowing the appeals and setting aside Ext.P11 resolution Nos.15 and 16 of the first respondent Municipality and Ext.P12 order of the Secretary. The Secretary of the Municipality was directed to submit the application made by the petitioner along with his report under Section 448(3) of the Municipalities Act before the Municipal Council and the Municipal Council was directed to pass fresh orders in accordance with law. It is challenging this order that this writ petition is filed. 5. The main contention raised by the counsel for the petitioner is that in terms of the provisions contained in Section 448, the secretary is required to submit his report to the Council and it is for the Council to take a decision on the application. It is submitted that, although Ext.P7 carries the title “order”, it is only a report as contemplated under Section 448(3) and for that reason the directions contained in Ext.P17 are illegal. WPC.No.35470 /09 :4 : 6. On the other hand, the counsel for the respondents herein, contended that Ext.P17 order passed by the Tribunal is perfectly in accordance with the statutory provisions and no interference is called for. 7. Section 448 deals with applications to be made for construction, establishment or installation of factory, workshop or workplace in which steam or other power is to be employed. Sub Section(1) requires any person intending to carry on any activity provided in clause (a) and (b) shall before beginning such construction or establishment make an application to the Municipality in the prescribed form addressed to the Secretary for permission to undertake the intended work. Sub Section (3) provides that the Secretary shall, as soon as may be, after the receipt of the application, report to the Council, if the establishment of the factory or workshop or workplace or the installation of the machinery or manufacturing plant, for which permission is applied for, is objectionable for any of the reasons stated therein and the Council shall, after having considered the application and the reports of the Secretary and of such other authorities specified in sub section (4) and as far as possible, any WPC.No.35470 /09 :5 : how, within a maximum period of 45 days from the date of receipt of the application, grant the permission applied for absolutely or subject to such conditions as it deems fit or refuse the permission for reasons to be recorded. It is evident from the aforesaid statutory provisions that on receipt of the application, the role of the Secretary is that contained in Sub Section(3) which provides that he should make a report to the Council as contemplated therein and after considering the report and other materials. It is for the Council to either grant the permission absolutely or conditionally or refuse the permission sought for. 8. In this case, Ext.P3 is the application made by the petitioner. It is on that application, Ext.P7 proceedings have been issued by the Secretary. Ext.P7 itself is styled as an order and the first paragraph ends with the sentence “having heard the parties concerned I pass the following orders.” On this basis the Secretary examined the merits of the claim made and finally he concludes that the petitioner is entitled to be issued licence subject to construction of compound wall of 2.5 meters height as stipulated in the NOC given by the DMO. On a reading of Ext.P7, I am not persuaded to agree with the counsel for the petitioner WPC.No.35470 /09 :6 : that, Ext.P7 can be described or considered as a report containing the opinion of the Secretary. On the other hand by Ext.P7 the Secretary has, without any power whatsoever, decided the entitlement of the petitioner to be issued licence, of course subject to the conditions imposed therein. In terms of the statutory provisions, it is entirely within the domain of the Municipal Council and the Secretary could not have taken that decision. Consequently the view taken by the Tribunal in Ext.P17, is perfectly in consonance with the provisions contained in Section 448. Therefore this order does not call for any interference. 9. On perusal of the facts detailed above, it is revealed that the petitioner has been fighting for a licence for the last two years. They had to face several rounds of litigation, before this court and also before the Tribunal for Local Self Government Institutions. It is after various litigation that Ext.P17 order was passed. Although Ext.P7 reflects a decision of the Secretary, no harm or prejudice will be caused to any of the respondents, if Ext.P7 is treated as a report as contemplated under Section 448 (3) and the first respondent Council considers Ext.P3 application WPC.No.35470 /09 :7 : made by the petitioner in the light of other materials and also Ext.P7, treating it only a report, as contemplated under Section 448(3). This will certainly help parties to shorten the process of passing orders on Ext.P3. Therefore, I dispose of this writ petition directing the first respondent to consider Ext.P3 application for licence made by the petitioner, together with Ext.P7, treating it as a report of the Secretary as contemplated under Section 448(3), in the light of other materials available before it and with notice to the petitioner and respondents 3 to 8. Having regard to the long pendency of the matter, it is directed that a decision as above shall be taken as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of this judgment. It is made clear that parties are at liberty to raise their respective contentions before the Municipality and it is for the Municipality to deal with this contention. (ANTONY DOMINIC) JUDGE vi/ WPC.No.35470 /09 :8 :