IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 192 of 2010(Y) ------------------------ PETITIONER(S): --------------- T.KAISUDEEN, S/O.MUHAMMED YUSUFF, AGED 45, RAMEE MANZIL, VARKALA P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.V.C.JAMES SRI.GEORGE MECHERIL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE VARKALA MUNICIPALITY, VARKALA, REP. BY ITS SECRETARY. 3. THE SECRETARY, VARKALA MUNICIPALITY, VARKALA. SC FOR R1 SRI. J.S. AJITHKUMAR BY GOVT. PLEADER SRI. V. MANU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2010, ALONG WITH WPC NO. 34036 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) Nos.192/2010 & 34036/2009 -------------------------------------------------- Dated this the 8th day of April, 2010 J U D G M E N T Writ Petition No.34036/09 is filed by the Varkala Municipality. The challenge in the writ petition is against Ext.P9 order passed by the Tribunal for Local Self Government Institutions, in RP.No.67/09 filed by the first respondent herein, who is the petitioner in WP(c). No.192/2010. 2. Facts pleaded in WP(c).No.34036/09 are that the Municipality issued Ext.P1 permit dated 22.8.2005, for the construction of a commercial building. Although, construction was started on the basis of the building permit granted, according to the Municipality they cancelled the building permit at a subsequent stage and thereafter they issued Ext.P3 permit dated 29.7.2007. According to the first respondent, cancellation of Ext.P1 was not communicated to him and on the basis of Ext.P1 he completed construction of the building. Thereafter he applied for assigning building number which was rejected by the Municipality by Ext.P7 order. Appeal filed to the Municipal Council also was rejected and WPC.No. 192/2010 & anor. : 2 : thereupon the first respondent herein filed R.P.No.67/09 which was allowed by the Tribunal by Ext.P9 order. That order is dated 10.9.2009. 3. After Ext.P9 order was issued, by Ext.R1(a) dated 8.10.2009, the Municipality directed the first respondent to produce the NOC from the Fire and Safety Department, to which he submitted reply. The building was assessed to tax under the Kerala Building Tax Act which was remitted by Ext.R1(d) dated 30.10.2009. On completion of all the above, the building was numbered by the Municipality and occupancy certificate was also issued by the Municipality. Thereafter, Ext.P10 order was issued by the Government on 12.11.2009 directing the Municipality to file appeal against Ext.P9 order of the Tribunal. 4. Even after receipt of Ext.P10, ownership certificate was issued by the Municipality on 25.11.2009, a copy of which is Ext.R1 (f). On 25.11.2009 itself the WP(c).No.34036/2009 was filed by the Municipality and this court by order dated 26.11.2009 stayed the operation of Ext.P9 order of the Tribunal. Based on the interim order obtained by the Municipality, it issued order dated WPC.No. 192/2010 & anor. : 3 : 28.11.2009, cancelling the occupancy certificate issued to the first respondent. It is challenging the order dated 28.11.2009 cancelling the occupancy certificate, the first respondent in WP(c). No.34036/2009 has filed WP(c).No.192/2010 producing the said order as Ext.P19. In this writ petition he is also challenging Ext.P10 referred to above. 5. As far as the challenge against Ext.P9 raised in WP(c). N.34046/09 is concerned, first of all on account of the subsequent developments, I do not think that the challenge by the Municipality at this distance of time can have any relevance. As already seen Municipality assessed the building to building tax, accepted the tax, numbered the building, issued ownership certificate and it is thereafter that the challenge is raised. Therefore there is no bona fides in the challenge against this order. Irrespective of that, a reading of Ext.P9 shows that the Tribunal has followed the law laid down in Nazar V. Malappuram Municipality(2009(3) KLT 96). At the time when the Tribunal passed the said order, the said judgment was in force and therefore the Tribunal cannot be faulted for the view that it has taken in Ext.P9 order. Therefore the writ petition is WPC.No. 192/2010 & anor. : 4 : only to be dismissed and I do so. 6. As already seen, in WP(c).No.192/2010, the challenge is against Exts.P18 and P19 orders. Ext.P18 is Ext.P10 referred to above. By this order the Government directed the Municipality to file appeal against Ext.P9 order referred to above. I do not think that this order gives the petitioner any cause of auction. Therefore, challenge against Ext.P18 order is only to be rejected and I do so. 7. In so far as the challenge against Ext.P19 order by whcih the occupancy certificate issued to the petitioner is cancelled is concerned, that has been done as a consequence to the stay obtained in WP(c).No.34036/2009. Now that WP(c). No.34036/2009 has been dismissed, necessarily the challenge against Ext.P19 has to be upheld. Therefore I set aside Ext.P19 order canceling the occupancy certificate issued by the first respondent. Accordingly WP(c).No.34036/2009 is dismissed and WP(c). No.192/2010 is disposed of quashing Ext.P19 therein. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 192/2010 & anor. : 5 :