IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 WP(C).No. 6000 of 2008(L) -------------------------------------- PETITIONERS: ------------------- 1. T.K.BHASKARAN, SUCHEENDRAM, TALAP, KANNUR. 2. KUNNATHU PACHA KARTHYAYANI, W/O. T.K.BHASKARAN, DO. DO. BY ADV. SRI.V.R.VENKATAKRISHNAN (SR.) SRI.N.K.SUBRAMANIAN SRI.S.ANANTHAKRISHNAN RESPONDENTS: ------------------------ 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. THE KANNUR MUNICIPALITY, REP.BY ITS SECRETARY KANNUR MUNICIPALITY, KANNUR. 3. THE SECRETARY, KANNUR MUNICIPALITY, KANNUR. 4. THE MUNICIPAL COUNCIL, REP.BY THE SECRETARY, KANNUR MUNICIPALITY, KANNUR. 5. M.RAJESH, S/O. RAMADHAS, PRINCE WATCH WORKS, SWAMY MADAM ROAD, KANNUR 1, (OCCUPIER OF BUILDING NO. CW.530. BY ADV. SRI.K.K.CHANDRAN PILLAI - R2 TO R4 SRI.A.MOHAMED MUSTAQUE - R5 SRI.M.K.SUMOD SRI.KAUSER EDAPPAGATH SRI.K.R.AVINASH (KUNNATH) SRI.V.G.SALEESH SRI.ARUN THOMAS BY GOVERNMENT PLEADER SRI.MOHAMMED ANZAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 6000 OF 2008 ----------------------------------------------- Dated this the 3rd day of April, 2008 J U D G M E N T The petitioners, husband and wife who own a building presently under the occupation of the 5th respondent for doing watch repairing works, challenge in this writ petition Ext.P1 order passed by the first respondent Tribunal for Local Self Government Institutions. Ext.P1 was passed by the Tribunal on a revision petition filed by the 5th respondent against the appellate order passed by the 4th respondent Municipal Council dismissing an appeal which was preferred by the 5th respondent against the original order issued by the third respondent Municipal Secretary. Under that order the Municipal Secretary cancelled the trade licence which had been given to the 5th respondent for conducting his watch repairing trade in the petitioners' building and directed the 5th respondent to vacate the building on the reason that the building is in a highly dilapidated and ruinous condition. Under Ext.P1 the order concurrently issued by the Municipal Secretary and the Municipal Council in appeal were set aside by the Tribunal and the issue was relegated to the Municipal Secretary to conduct a proper inspection of the building to see whether the building is in a ruinous state and posing danger to the passers by or to the occupiers WP(C)N0. 6000/08 -2- including those of neighbouring structures and to see how much portion of the same is to be demolished or to be otherwise dealt with so as to prevent any danger therefrom and th pass proper fresh orders under section 411 of the Kerala Municipality Act within one month. Petitioners have impugned Ext.P1 on various grounds particularly on the ground that the Tribunal exceeded its jurisdiction which was revisional in nature in directing further enquiry regarding the condition of the building by the Secretary since two fact finding authorities, the Municipal Secretary and the Municipal Council had already concluded that the building is in a ruinous state warranting action under section 411. 2. I heard the submissions of Sri.V.R.Venkata Krishnan, learned counsel for the petitioner and those of Sri.Muhammed Mustaque, counsel for 5th respondent apart from hearing the submissions of Sri.K.K.Chandran Pillai, counselfor the Municipal authorities (R2 to R4). 3. As directed by me Ext.P3 series of photographs were produced by the petitioners and those photographs revealed that it was only one room in a line building having several rooms presently standing in isolation, the other rooms in the larger building having WP(C)N0. 6000/08 -3- already been demolished pursuant to action initiated by the Municipality under section 411. Drawing my attention to my own judgment in WP(C). 19580/06 a case pertaining to another room in the line building in question, Sri.V.R. Venkata Krishnan, senior counsel would submit that in the teeth of the findings entered in that judgment regarding the condition of the line building, the learned Tribunal should not have directed a further investigation by the Municipal Secretary. Notwithstanding the emphatic submissions of the learned senior counsel I directed the standing counsel for the Municipality to ensure that the Municipal Secretary conducts an inspection immediately and files a report before this court as to whether the building portion occupied by the 5th respondent is in a ruinous condition warranting immediate action under section 411 of the Municipalities Act. Pursuant to that, standing counsel for the Municipality has filed a statement wherein it is reported that it is the Municipal Engineer who is presently in charge of the Municipal Secretary and that he himself inspected the disputed room with the help of the Assistant Engineer of the Municipality and that he has reported that the the portion of the building occupied by the 5th respondent (standing as it is in isolation) cannot have any independent WP(C)N0. 6000/08 -4- existence and that if that particular portion is permitted to continue as such, during rainy season that portion may collapse which may cause accident to the pedestrians and also to the occupants in the room. It is also stated that the room is situated by the side of Swamimadom Road, an important area in the town and therefore the continuance of the structure will be risky from the point of view of the occupant and also of the public who passes through the road. Along with the statement the following report of the Municipal Secretary has also been filed as Annexure-I. “The said room is now occupied by Sri.N.Rajesh for a watch repair shop and is having a separate wall adjacent to the building on the eastern side. The structural condition of the building is verified in detail. The room is built up with laterite stone in lime mortar. Inside of the room is lined with decorative panels. Balance portion of the building at western side of the room is completely demolished. Outside of the western wall is found plastered with mixed lime mud mortar upto wall plate level. The gabbled portion of the wall is still exposed unplastered. The room is 8.75 m x 1.80 m size. The height of the wall upto ridge level is 4.95 m upto wall plate at sides the wall is having 2.90 height. More than two vertical cracks are seen developed at outside. Since having 4.95 m height and the western portion of the building is completely demolished the western wall is likely to be damaged by rainwater and it may collapse at any time during heavy rain which will cause damage to the pedestrians and the occupants itself. (The building is above 100 years old and abutting the footpath of swami madom road in the heart of the city). I may also report that the portion of the building which is now in existence and occupied by Sri.N.Rajesh cannot have any independent existence WP(C)N0. 6000/08 -5- during extreme rains and the continuance of that portion will be dangerous to the pedestrians and the occupants.” 4. The submissions of Mr.Muhammed Mistaque, counsel for the 5th respondent before me was only that the Tribunal cannot be faulted for having directed the Municipal Secretary to conduct an inspection for being convinced regarding the real condition of the building since there is no reliable material dealing with the building portion which is subject matter of the present writ petition on the basis of which order could be passed under section 411. 5. Having considered the documents produced in this case and the report of the Municipal Secretary (Municipal Engineer in Charge) incorporated above and in the light of my own observations in the judgment in WP(C). No. 19580/06 I am of the view that the petitioner and the Municipality are justified in requesting for permission to proceed under section 411. The enquiry directed by the Tribunal is already conducted and the report extracted above is the result of that enquiry. Considering that report I set aside Ext.P1 and direct the Municipal Secretary to pass orders on the issue of evicting 5th respondent for the purpose of facilitating demolition of the building in question under section 411 after hearing the petitioner and the 5th respondent without conducting any fresh enquiry. Orders shall be WP(C)N0. 6000/08 -6- passed taking into account the report of the Municipal Secretary/Engineer extracted above. Orders as directed above shall be passed at the earliest and at any rate within 10 days of receiving copy of this judgment . Writ petition is allowed to the above extent without any order as to cost. (PIUS C.KURIAKOSE, JUDGE) ksv/