IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WP(C).No. 4672 of 2010(H) ------------------------- PETITIONER(S): --------------- THE TIRUR MUNICIPALITY, TIRUR, MALAPPURAM DIST, REP. BY ITS SECRETARY. BY ADV. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN RESPONDENT(S): --------------- 1. N.S.S.UNION, TIRUR, MALAPPURAM DIST., REP. BY ITS PRESIDENT A.NARAYANAN NAIR. 2. STATE OF KERALA, REP. BY THE SECRETARY TO THE LOCAL SELF GOVT.DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. MS.K.R.DEEPA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.4672 of 2010 (H) --------------------------------- Dated, this the 15th day of February, 2010 J U D G M E N T Challenge is against Ext.P7 order passed by the Tribunal for Local Self Government Institutions in Appeal No.576/09 filed by the 1st respondent herein. 2. The 1st respondent applied for a building permit. That was rejected by the petitioner Municipality stating that on 04/04/98 the Municipality had already passed a resolution to the effect that no building will be allowed to be constructed within 200 meters of the trenching ground of its Waste Disposal Plant. It was against that order passed by the Municipality, the 1st respondent filed Ext.P5 appeal before the Tribunal, in which Ext.P6 objection was filed by the petitioner Municipality. The Tribunal considered the matter and allowed the appeal by Ext.P7 order dated 19/08/2009. 3. In Ext.P7 order, the Tribunal held that only legally passed bye-law is enforceable and that the procedures prescribed in the Kerala Municipality Act to frame bye-laws and regulations are those WP(C) No.4672/2010 -2- contained in Sections 571 & 572. It was found that in taking the decision, the Municipality did not comply with the statutory requirements prescribed in the aforesaid provisions and that the decision is unenforceable. 4. The main contention raised by the Municipality is that the Tribunal lacks power to decide the validity of bye-laws framed by the Municipality. It is also its contention that the Tribunal decided the issue against it, although this was not a contention raised by the 1st respondent in Ext.P5 appeal. 5. As far as the contention raised by the learned counsel for the petitioner that it was beyond the jurisdiction of the Tribunal to have decided this issue is concerned, in my view, it was well within the power of the Tribunal to deal with the issue. As already seen, the complaint raised in the appeal was that the Municipality had illegally rejected the application made by the 1st respondent for a building permit. The Municipality defended its decision on the ground that it had already resolved not to permit buildings within 200 meters of the trenching ground of the Waste Disposal Plant. Therefore, the Municipality was trying to justify the rejection of the WP(C) No.4672/2010 -3- application made for a building permit, relying on the aforesaid decision. In such a situation, the Tribunal was incumbent to have decided on the legality of the resolution. It is on such examination, the Tribunal found that the power of the Municipality to frame regulations should have been exercised in the manner prescribed in the Kerala Municipality Act and that having not complied with statutory prescriptions, the resolution is illegal. Such an examination and pronouncement of the issue was absolutely necessary for the disposal of the appeal, and therefore was perfectly within the powers of the Tribunal. 6. The other contention raised by the learned counsel for the petitioner is that the issue was decided by the Tribunal, although the contention was not raised in the pleadings. While examining this contention of the petitioner, it should first be noticed that, in the pleadings, the Municipality has no case that the findings of the Tribunal about the non-compliance of the procedure prescribed for framing regulation is factually incorrect. The Municipality also has not placed on record any material to conclude that the said finding is factually incorrect for any other reason. In WP(C) No.4672/2010 -4- such a situation, there is no merit in the contention of the Municipality that the issue was raised without pleadings and notice to it. 7. In the light of the above, I am not in a position to find anything wrong on the part of the Tribunal in having passed Ext.P7 order. Be that as it may, if it is legally permissible, it will be open to the petitioner Municipality to frame regulation, in accordance with law, and Ext.P7 order will not be of any prejudice to it. The writ petition fails and is, accordingly, dismissed. (ANTONY DOMINIC, JUDGE) jg