IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WA.No. 94 of 2011() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.15192/2006 Dated 17/10/2010 .................... APPELLANT(S): 5TH RESPONDENT ------------------------------------------------- APPUKUTTAN ACHARI, NADAYIL VADAKKETHIL, MULAMKADAKOM P.O., KOLLAM. BY ADV. SRI.K.KARTHIKEYA PANICKER RESPONDENT(S): PETITIONER -------------------------------------------- 1. MULAMKANDAM TEMPLE TRUST, MULAMKANDAM, KOLLAM WEST VILLAGE, KOLLAM-691012, REP. BY ITS PRESIDENT DR.A.MOHANRAJ 2. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 3. KOLLAM MUNICIPAL CORPORATION, KOLLAM-691001. 4. SECRETARY, KOLLAM MUNICIPAL CORPORATION, KOLLAM-691001. 5. MAYOR, KOLLAM MUNICIPAL CORPORATION, KOLLAM-691001. 6. THE TALUK SURVEYOR, KOLLAM-691001. ADV. SRI.P.B.SURESH KUMAR FOR R1 SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT FOR R3-R5 GOVT.PLEADER SRI.JAMES MATHEW KADAVAN FOR R2 AND R6 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 94 of 2011 ---------------------------------------------- Dated this the 7th day of December, 2011 JUDGMENT Manjula Chellur, Ag.C.J. Heard learned counsel for the appellant as well as the respondents. 2. The appellant herein was the 5th respondent, who was impleaded as a party by virtue of order dated 5.7.2006 in I.A.No. 9014/2006 before the learned Single Judge. The first respondent- Trust approached the learned Single Judge in W.P(C).No.15192 of 2006. It is not in dispute that the first respondent-Trust has a property within Kollam Corporation. The first respondent is in possession of the property said to have been assigned by the Government in favour of the temple, situated within Kollam Corporation limits. 3. When the first respondent Temple undertook construction of a compound wall, the Secretary of Kollam Corporation initiated proceedings against the first respondent-Trust under Section 406 of the Kerala Municipality Act on the complaint that the WA.94/11 2 compound wall put up by the first respondent is encroaching the public pathway. It is not in dispute that the first respondent appeared and defended their case before the Secretary by filing objections. After hearing the parties, the Secretary of Kollam Corporation, a statutory authority under the Act, passed order as per Exhibit P3 dated 2.5.2006, dropping the action initiated against the first respondent-Trust under Section 406 of the Kerala Municipality Act. Further, the first respondent was asked to seek regularisation of the construction, if any unauthorised construction were to be there. 4. When the matter stood at that stage, the Mayor of Kollam Corporation seems to have initiated suo motu action and stayed the operation of Exhibit P3 as per order dated 23.5.2006 at Exhibit P4(a). On enquiry, the Secretary of the Corporation informed the President of the first respondent-Trust that the Mayor has stayed the operation of Exhibit P3. Challenging the order of the Mayor at Exhibit P4(a) on the ground of jurisdiction vested in Mayor to issue such stay order, the first respondent- Trust approached the learned Single Judge. According to the Mayor, who was a party to the writ proceedings, he has power under Sections 15(7), 49 and 229B of the Kerala Municipality Act WA.94/11 3 to issue order like Exhibit P4(a). Therefore, according to the fourth respondent before the learned Single Judge, there was no jurisdiction in entertaining the Writ Petition. The learned Judge, referred to the provisions of Section 15(7) of the Kerala Municipality Act, which reads as follows: “15(7) The Chairperson shall have the power to call for from the Secretary or any other officer under the Municipality, any file and record in writing relating to the administration of the Municipality and issue directions and orders thereon in accordance with the provisions of this Act, rules or standing orders made thereunder: Provided that the Chairperson shall not call for the files and records which are related to the exercise of statutory functions regarding Municipal Administration vested only in the Secretary or any other officer.” Section 49 of the Kerala Municipality Act reads as follows: “49. Functions of the Secretary.- (1) Subject to the provisions of this Act and the rules made thereunder, the Secretary shall,- (a) record his opinion in writing on all matters with which he is concerned and which require the decision of the Chairperson, the Council or the Standing committee; and (b) implement the resolutions of the Council and the Standing Committee: Provided that where the Secretary is of WA.94/11 4 opinion that any resolution has not been legally passed or exceeds the powers conferred by this Act or by any other law or by the rules made thereunder or that if carried into effect it may endanger communal harmony or public safety or it is contrary to the Central State Policy, the Secretary shall request the council in writing to review the matter and express his views during review by the council and if the council sticks on to its earlier decision, he shall refer it to the Government for appropriate action and decision, after intimating the matter to the Chairperson: Provided further that where, on review of the resolution, the council decides to implement the same and the decision of the Government have not been intimated within fifteen days from the date of reference to the Government, the Secretary shall implement the said resolution and the matter be intimated to the Government. Provided also that no approval of the Chairperson is required for the Secretary to refer the matter to the council or the Government as aforesaid, but he shall give a copy of the report sent to the Government, to the Chairperson; (c) furnish periodical reports to the council and the standing committees, as the case may be, regarding the action taken or progress made in implementing the resolutions of the council or the standing committees; (d) implement the directions of the Chairperson: Provided that where the Secretary is of WA.94/11 5 opinion that any direction given by the Chairperson is in excess of the powers conferred under the provisions of this Act or any other law or the rules made thereunder, he may first bring the matter to the notice of the Chairperson and if the Chairperson repeats his direction and if the Secretary sticks on to his earlier opinion, he shall report that matter to the council in the manner as may be prescribed; (e) exercise such of the powers and perform such of the functions as may be specifically conferred or delegated by or under this Act; (f) incur the expenditure authorised by the council or the Chairperson, subject to the budgetary provision; (g) make payments for all kinds of expenditure authorised by the Municipality, either by cheque or in cash; (h) maintain and keep the accounts as to the receipts and expenditure of the Municipality, (i) be responsible for the safe custody of the Municipal fund; (j) keep the records in respect of the meetings and proceedings of the council, standing committees and other committees; (k) take disciplinary action against the Municipal employees with the knowledge of the Chairperson; and (2) All litigations for or against the Municipality shall be conducted by or against the Secretary.” Section 229 of the Kerala Municipality Act reads as follows: WA.94/11 6 “229B. Exercise of statutory functions of the officials.- Where any officer of the Municipality is vested with any statutory powers or functions to be independently and solely exercised by such officer, the Council, the Chairperson, the Chairman of standing committee or any Councillor, shall not interfere with or influence in the exercise of such powers or functions by such officer.” Learned Single Judge opined that it was only the statutory authority under the Act, who alone could have taken action. Therefore, there was no justification or authority for the Mayor to issue an order like Exhibit P4(a). Concluding so, the learned Single Judge quashed Exhibit P4(a) and also opined that if anyone was aggrieved with the permission granted as per Exhibit P3, the same could have been challenged before the Tribunal constituted under the Statute, the Tribunal for Local Self Government Institutions in the manner prescribed under Section 509 of the Kerala Municipality Act. 5. We have gone through the above provisions. None of the provisions referred to above would indicate any power being vested with the Mayor to issue an order like Exhibit P4(a). In that view of the matter, we are of the opinion, there was justification for the learned Single Judge in dismissing the Writ Petition. WA.94/11 7 However, having regard to the involvement of public property, the learned Single Judge further safeguarded the interest of the public by saying, if any one is aggrieved by Exhibit P3, they are at liberty to approach the Tribunal as stated above. It is very much within the option of the appellant herein also to approach the Tribunal, if he desires to challenge Exhibit P3. Accordingly, the Writ Appeal is dismissed. However, we grant three weeks time for the appellant to approach the Tribunal, if he desires so, in view of the fact that the limitation to approach the Tribunal is already expired. We also make it clear that none of the observations made herein would have any persuasive value for the Tribunal to decide the matter on merits, if any. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs