IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WA.No.442 of 2009 ---------------------- AGAINST THE JUDGEMENT IN WP(C).4448/2009 Dated 12/02/2009 .................... APPELLANTS/APPELLANTS: ------------------------------ 1. V.V.SHAJI, ADVOCATE, VAZHATHARAMALAYIL HOUSE, NEAR GOVERNMENT HOSPITAL, THIRUVALLA. 2. RAJUS. J., W/o.V.V.SHAJI, -DO- -DO-. BY MR.P.R.VENKATESH, ADVOCATE. RESPONDENT/RESPONDENT: -------------------------------- THIRUVALLA MUNICIPALITY REPRESENTED BY ITS SECRETARY, THIRUVALLA, PATHANAMTHITTA DISTRICT BY MR. P. SUBASH CHAND, SC. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------ Writ Appeal No.442 OF 2009 ------------------------------------------ Dated this the 26th day of February, 2009. J U D G M E N T Kurian Joseph, J. The appellants are the petitioners in W.P.(C) No.4448/2009. The writ petition was filed challenging Exhibit P12 order passed by the Tribunal for Local Self Government Institutions. The issue pertains to the alleged unauthorized construction made by the appellants-petitioners and also the alleged trespass into the property of the respondent-Municipality. According to the petitioners, there is no such violation and there is no such trespass. 2. The Tribunal found that there is procedural violation in initiating proceedings under Section 406 of the Kerala Municipality Act and therefore the order was set aside with a direction to the Municipality to initiate fresh proceedings, if required, under Section 406 of the Act. W.A.No.442/2009 2 3. As far as notice under Section 367 of the Act is concerned, the appeal was rejected since the remedy open to the appellants-petitioners was to pursue the matter before the Council. Though the learned counsel for the appellants made strenuous efforts to substantiate before us that there is no violation of any of the rules and that there is no trespass, we do not think that this Court at this stage should go into those factual details. The Municipality has only been given liberty, if required to proceed against the appellants under Section 406 of the Act. As and when such a notice is received by the appellants, it will be open to them to take all available contentions before the respondent. As rightly contended by the learned counsel for the appellants, such a notice cannot be used as a weapon to protract the proceedings since the appellants are also visited with other serious consequences. Therefore, we make it clear that in case the Municipality proposes to issue such a notice under Section 406 of the Act, the same shall be issued within a period of one W.A.No.442/2009 3 month from today and as otherwise it shall be taken that the proceedings are dropped. As far as proceedings initiated under Section 367 of the Act is concerned, since the time has run out and since the appellants- petitioners have been bonafide prosecuting their grievance before another forum, we make it clear that in case the petitioners prefer an appeal within a period of one month from today, the same shall be treated to have been filed in time and the appeal shall be disposed of on merits, with notice to the appellants and affected parties if any, within another two months. In the meanwhile, there will be a direction to the respondent- Municipality to issue a provisional number in respect of the building constructed by the appellants forthwith. In case the nomenclature used in the provisional number is “unauthorized”, we make it clear that such nomenclature by itself will not lead to an inference that construction is unauthorized. Needless also to say that the provisional number as above will be subject to the W.A.No.442/2009 4 proceedings, if any, initiated by the Municipality under Section 406 of the Kerala Municipality Act. This writ appeal is disposed of as above. KURIAN JOSEPH JUDGE S.S.SATHEESACHANDRAN JUDGE smp W.A.No.442/2009 5 KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. W.A. No.442 OF 2009 J U D G M E N T 26.02.2009