IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 15192 of 2006(H) -------------------------- PETITIONER(S): --------------- MUYLAMKADAKAM TEMPLE TRUST, MULAMKADAKAM, KOLLAM WEST VILLAGE, KOLLAM, REPRESENTED BY ITS PRESIDENT DR.A.MOHANRAJ. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KOLLAM MUNICIPAL CORPORATION, KOLLAM REPRESENTED BY ITS SECRETARY. 3. SECRETARY, KOLLAM MUNICIPAL CORPORATION, KOLLAM. 4. MAYOR, KOLLAM MUNICIPAL CORPORATION, KOLLAM. *ADDL.R5: APPUKUTTAN ACHARI, NADAYIL VADAKKETHIL, MULAMKODAKAM P.O. KOLLAM. *IS IMPLEADED AS PER ORDER DT. 5.7.2006 IN I.A.9014/2006 *ADDITIONAL R6: THE TALUK SURVEYOR, KOLLAM. *IS IMPLEADED SUO MOTU AS PER ORDER DT. 4/1/07 IN WP(C). ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT FOR R2 TO R4 SRI.K.KARTHIKEYA PANICKER FOR ADDL.R SMT.DAYA K. PANICKER FOR ADDL.R GOVERNMENT PLEADER SRI.V.MANU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.15192/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE ORDER NO.TP.1/15823/05 PASSED BY THE THIRD RESPONDENT DATED 7.12.2005. EXT.P2. TRUE COPY OF THE ORDER NO.TP.1/15823/05 PASSED BY THE THIRD RESPONDENT DATED 7.12.2005. EXT.P3. TRUE COPY OF THE ORDER NO.TP.1/15823/05 PASSED BY THE THIRD RESPONDENT DATED 2.5.2006. EXT.P4. TRUE COPY OF THE ORDER NO.TP.1/15823/2005 PASSED BY THE THIRD RESPONDENT DATED 29.5.2006. EXT.P4(a) TRUE COPY OF THE ORDER OF THE FOURTH RESPONDENT DATED 23.5.2006. EXT.P5. TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED 5.5.2006. EXT.P6. TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR PURSUANT TO THE DIRECTION ISSUED BY THIS HONOURABLE COURT IN THE WRIT PETITION DATED NIL. EXT.P7. TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY KOLLAM CORPORATION DATED 20.7.2005. RESPONDENTS' EXHIBITS: EXT.R5(a): TRUE COPY OF THE JUDGMENT IN CONT.CASE (C)NO.382/06 DATED 29.5.06 ISSUED BY THIS HONOURABLE COURT. EXT.R5(b): TRUE COPY OF THE REPRESENTATION DATED 22.11.2005 BEFORE THE MAYOR, KOLLAM MUNICIPAL CORPORATION, KOLLAM EXT.R5(c): TRUE COPY OF THE EXTRACT PROCEEDINGS DATED 28.5.06 ISSUED BY MAYOR, KOLLAM MUNICIPAL CORPORATION, KOLLAM. EXT.R5(d): TRUE COPY OF THE RE-SURVEY PLAN DATED 29.9.1980 EXT.R5(e): TRUE COPY OF THE NOTICE DATED 29.11.2005 ISSUED BY 4TH RESPONDENT. EXT.R5(f): TRUE COPY OF THE NOTICE DATED 2.1.2006 EXT.R5(g): TRUE COPY OF NOTICE DATED NIL. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.15192 of 2006 ----------------------------------------- Dated this the 27th day of October, 2010 JUDGMENT The petitioner is a Trust constituted for the administration of Mulamkadakam Devi Temple. The Secretary of the Kollam Corporation had initiated proceedings against the petitioner Trust under section 406 of the Kerala Municipality Act, 1994 on the allegation that a compound wall put up by the Trust encroaches into a public pathway. Initially a preliminary order was passed upon receipt of which the petitioner Trust entered appearance and filed their objections. The Secretary of Kollam Corporation thereafter passed Ext.P3 order dated 2.5.2006 withdrawing the action taken by him under section 406 of the Kerala Municipality Act, 1994. The petitioner was also called upon to submit an application for regularisation of the construction. Nobody challenged Ext.P3 in appeal before the Tribunal for Local Self Government Institutions as provided under section 509 of the Kerala Municipality Act, 1994. It appears the Mayor of Kollam Corporation suo motu initiated action and stayed the operation of W.P(C).No.15192 of 2006 -:2:- Ext.P3 order as per Ext.P4(a) order dated 23.5.2006. The Secretary of Kollam Corporation informed the President of the petitioner Trust that the operation of Ext.P3 order has been stayed. The instant writ petition was thereupon filed challenging Ext.P4(a). It is contended that as per the provisions of the Kerala Municipality Act, 1994 the 4th respondent has no power or authority to call for the files and records relating to orders passed by the 3rd respondent in exercise of his statutory powers and is therefore ultra vires. 2. The Mayor of Kollam Corporation has filed a counter affidavit justifying his action. Relying on sections 15(7) and 49 of the Kerala Municipality Act, 1994 it is contended that as the order passed by the Secretary relates to the administration of the Municipality, the Mayor was competent to call for the files and pass appropriate orders and that the Secretary is bound to implement the same. Section 15(7) of the Kerala Municipality Act, 1994 reads as follows:- “15(7) The Chairperson shall have the power to call for from the Secretary or any W.P(C).No.15192 of 2006 -:3:- 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.” The 4th respondent relies on the main limb of section 15(7) to contend that he has the power to call for the files leading to Ext.P3 from the Secretary and pass an order staying the operation of Ext.P3. The proviso to section 15(7) states that the Chairperson shall not call for files and records which are related to statutory functions regarding Municipal administration vested only in the Secretary or any other officer. Likewise section 229B of the Kerala Municipality Act, 1994 stipulates that 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 W.P(C).No.15192 of 2006 -:4:- or any Councillor, shall not interfere with or influence in the exercise of such powers or functions by such officer. It is evident from the stipulations in the proviso to section 15(7) and section 229B of the Kerala Municipality Act, 1994 that the 4th respondent has no power or authority to interfere with an order passed by the Secretary of the Kollam Corporation in exercise of the power under section 406 of the Kerala Municipality Act, 1994. If the Mayor of Kollam Corporation was aggrieved by Ext.P3 he ought to have, in my opinion, canvassed the correctness of that order by filing an appeal before the Tribunal for Local Self Government Institutions in the manner provided in section 509 of the Kerala Municipality Act. The 4th respondent could not have, in my opinion, exercised the power under section 15(7) and interfered with Ext.P3. In such circumstances it has to be necessarily held that Ext.P4(a) decision of the 4th respondent cannot be sustained. In the result I allow the writ petition, quash Ext.P4(a) and the decision communicated to the petitioner by Ext.P4. The petitioner will be entitled to all consequential benefits. It is clarified that if any of the parties to this writ petition are aggrieved by Ext.P3, their remedy lies in instituting other W.P(C).No.15192 of 2006 -:5:- appropriate proceedings. In view of the fact that the order staying the operation of Ext.P3 now stands quashed it will be open to the petitioner to move the Secretary of Kollam Corporation for renewal of the building permit and the Secretary shall, on such an application being made, consider the same in accordance with law and take an appropriate decision thereon expeditiously. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.15192 of 2006 ---------------------------- JUDGMENT 27th October, 2010