IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 36957 of 2008(Y) --------------------------------------- PETITIONER(S): --------------------- CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, VIKHAS BHAVAN, THIRUVANANTHAPURAM-33. BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE ADV. MR.P.K.MANOJKUMAR RESPONDENT(S): ------------------------ 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. D.SAM SUJENDRAKUMAR, S.P.COTTAGE, RAMESWARAM WARD, AMARAVILA.P.O, NEYYATTINKARA. R1 BY GOVERNMENT PLEADER MR.V. MANU. R2 BY ADV. MR.G.S.REGHUNATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 36957/2008-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE BUILDING PERMIT NO.TP8/BA/678/2006 DATED 29/03/2006 ISSUED BY THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, TO THE SECOND RESPONDENT. EXT.P2: COPY OF THE APPLICATION FOR REFERENCE DATED 13/02/2008 SUBMITTED BY THE 2ND RESPONDENT TO THE COUNCIL, CORPORATION OF THIRUVANANTHAPURAM. EXT.P3: COPY OF THE APPEAL MEMORANDUM SUBMITTED BY THE SECOND RESPONDENT BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM DATED 08/04/208. EXT.P4: COPY OF THE ORDER PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM, DATED 13/06/2008. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE PETITION FILED BY 2ND RESPONDENT DATED 18/09/2008 BY THE 2ND RESPONDENT BEFORE THE SECRETARY OF THE PETITIONER. EXT.R2(b): COPY OF THE ACKNOWLEDGMENT DATED 18/09/2008 IN TOEKN OF RECEIPT OF EXT.R2(a). EXT.R2(c): COPY OF THE COMPLAINT DATED 27/09/2008 FILED BY 2ND RESPONDENT BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXT.R2(d): COPY OF THE OBJECTION FILED BY THE SECRETARY OF THE PETITIONER TO EXHIBIT-R2(c) DATED 29/09/2008. EXT.R2(e): COPY OF THE AFFIDAVIT DATED 03/10/2008 FILED BY 2ND RESPONDENT BEFORE THE OMBUDSMAN DATED 03/10/2008. EXT.R2(f): COPY OF THE SHOW CAUSE NOTICE DATED 06/10/2008 RECEIVED BY 2ND RESPONDENT FROM THE PETITIONER. EXT.R2(g): COPY OF THE REPLY TO EXT.R2(f) SHOW CAUSE NOTICE, SENT BY 2ND RESPONDENT DATED 27/10/2008. EXT.R2(h): COPY OF THE APPEAL 578/08 FILED BY 2ND RESPONDENT BEFORE THE TRIBUNAL FOR THE LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.R2(i): COPY OF THE OBJECTION FILED BY PETITIONER TO EXT.R2(h). EXT.R2(j): COPY OF THE ORDER DATED 06/12/2008 IN APPEAL NO.578/2008 OF THE TRIBUNAL FOR THE LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. (P.T.O.) WP(C) NO. 36957/2008-Y EXT.R2(k): COPY OF THE MINUTES OF THE THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY DATED 17/10/1987. EXT.R2(l): COPY OF THE REVISED PLAN. EXT.R2(m): COPY OF THE WRITTEN REQUEST DATED 13/02/2008 SUBMITTED BY PETITIONER BEFORE THE COUNCIL OF PETITIONER. //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 36957 OF 2008 ............................................ DATED THIS THE 9TH DAY OF OCTOBER, 2009 JUDGMENT Petitioner, the Corporation of Thiruvananthapuram, faces a situation, which is essentially the creation of administrative lethargy in the matter of considering an application for building permit. 2. The second respondent was granted a building permit to put up a two-storeyed commercial structure. Later he applied for a revised permit. According to the Corporation, what he had sought was conversion of the proposed building to be a nine- storeyed one with commercial and residential apartments in different floors. In spite of such an application being pending, the competent authority never thought it fit to consider the application within the time prescribed in Section 390 of the Kerala Municipality Act, 1994. The second respondent invoked Section 392(1) and moved for a reference of the matter to the Council. Unfortunately, the Council also did not decide on the matter within the prescribed time limit. Resultantly, the second Wpc 36957/2008 2 respondent got the opportunity to proceed as if he had a deemed licence by the prescription in sub-section 2 of Section 392. He filed appeal before the Tribunal for Local Self Government Institutions, essentially to ensure that he gets the clearance of some competent Tribunal or court. This was done under Rule 8(2) of the Tribunal Rules. By the order impugned, the Tribunal has held that the second respondent has derived a deemed licence in terms of Section 392(2). This is under challenge by the Corporation. 3. Before I proceed to consider the correctness or otherwise of the order impugned in this writ petition, it needs to be noticed that the second respondent has placed on record that the Corporation attempted to invoke Rule 16 of the KMBR, 1999 in an attempt to revoke the deemed licence. The said procedure was set aside by Tribunal in a different proceeding on ground that a licence, which is presumed to have come into existence by operation of law and passage of time cannot be subject to revocation under Rule 16 of the KMBR which essentially provides room for revocation on ground of misrepresentation of fact and such other grounds referable to matters that may be germane for Wpc 36957/2008 3 consideration at the time of grant. 4. The fundamental and more important issue in hand, as of now, is whether the Tribunal is to be faulted for having issued the impugned order. The fact of the matter remains that the second respondent's application stood open for consideration before the competent authority in the Corporation for a fairly long period and the statutory provisions became operational paving way for the second respondent to invoke sub-section (1) and thereafter sub-section (2) of Section 392 of the Act. The resultant statutory effect is nothing but the inexcusable fact that the second respondent stands with the deemed licence. It has therefore been rightly so declared by the Tribunal as per the impugned order. 5. The learned counsel appearing for the Corporation is justified in saying that what is deemed in terms of the provisions of Section 392(2) is only a licence to proceed to execute the work except in contravention of the provisions of the Kerala Municipality Act,1994 or any rules or bye laws made thereunder. While he is right in this, the ground reality is that Rule 16 of KMBR would not aid the revocation of such licence. At the same Wpc 36957/2008 4 time, if the construction proceeds in violation of the provisions of the Act or any rules or bye laws made thereunder, it would be, abundantly, within the jurisdiction of the Corporation authorities to take appropriate action in accordance with law. However, that is not a ground to interfere with the impugned decision of the Tribunal. For the aforesaid reasons, subject to what is stated above, this writ petition is dismissed. No costs. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/12/10