IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WA.No. 1977 of 2008 ---------------------------- AGAINST THE JUDGEMENT IN WPC.26999/2008 Dated 05/09/2008 .................... APPELLANTS/WRIT PETITIONERS: ------------------------------------------------- 1. KALATMAK RESIDENCY OWNERS ASSOCIATION, VIDYA NAGAR, KOCHI-20, REP. BY ITS SECRETARY, SRI.N.GOVINDAN 2. SATISH MURTHI, AGED 44YEARS, S/O.K.V.NARAYANMURTI, FLAT NO.102, KALATMAK RESIDENCY, VIDYA NAGAR, KOCHI-20. BY ADV. SRI.M.K.DILEEPAN SRI.DEVAN RAMACHANDRAN RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, REHABILITATION BLOCK, TRIDA BUILDING, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM-11. 2. MATHER & MATHER (P) LTD, MATHER BUILDINGS, MARKET ROAD, ERNAKULAM KOCHI-35, REP. BY ITS MANASGING DIRECTOR, K.I.BABU MATHER. 3. M/S.EMPIRE BUILDERS, LALAN TOWER, 4TH FLOOR, BANERJI ROAD, HIGH COURT JUNCTION., KOCHI-31, REP. BY ITS MANAGING PARTNER, K.I.BABU MATHER. 4. MR.B.V.PAUL, 6A DEFENCE COLONY, BANGALORE-38, 5. MRS. LOVELY PAUL, W/O.B.V.PAUL, 6A DEFENCE COLONY, BANGALORE-38. 6. SECRETARY, CORPORATION OF KOCHI, PARK AVENUE, KOCHI-11. 7. STATE OF KERALA, REP. BY THE SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIART, THIRUVANANTHAPURAM. 8. THE AIR AND WATER APPELLATE AUTHORITY, POOJAPPURA, THIRUVANANTHAPURAM. ADV. SRI.GEORGE THOMAS (MEVADA) FOR R2 & 3 G.P. SMT.K. MEERA FOR R1 & 7 SRI.PRAVEEN K.JOY,SC,COCHIN CORPORATION FOR R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.1977 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2008 JUDGMENT Basheer, J: Having heard learned counsel for the parties and having perused the entire materials available on record, we do not deem it necessary to deal with the entire facts of the case at length. However, the essential facts which are relevant for disposal of the writ appeal may be briefly noticed. (2) The Corporation of Cochin had issued a building permit to respondents 4 and 5 herein to construct a multi-storeyed building in Sy.No.713/4 within the limits of the Corporation. It appears that respondents 4 and 5 had subsequently assigned the said property to respondents 2 and 3, some time after the construction of the building was started. The building permit was also transferred by respondents 4 and 5 in favour of respondents 2 and 3, who in turn had applied to the Corporation for transfer of the permit in their name. But the Corporation turned down the above request and the building permit issued in favour of respondents 4 and 5 was also cancelled. Ultimately at the intervention of this Court, the parties were relegated to the Tribunal for Local Self Government Institutions to seek appropriate remedies. The Tribunal 2 WA.NO.1977/08 passed Ext.P8 order setting aside the order of revocation of the building permit and directed the Corporation to pass fresh orders in the matter. (3) Appellants had challenged Ext.P8 order passed by the Tribunal before the learned Single Judge contending inter alia that the Tribunal was not justified in remitting the matter back to the Secretary of the Corporation to take a fresh decision in the matter after hearing all the parties including the original owners/permit holders. (4) The learned Single Judge, after considering the rival contentions of the parties affirmed the order passed by the Tribunal and held that the apprehension of the appellants that the Secretary of the Corporation may be trammelled by certain observations made by the Tribunal was totally unwarranted. Accordingly, the writ petition was dismissed. (5) Sri.Devan Ramachandran, learned counsel appearing for the appellants, submits that the Tribunal was not at all justified in relegating the parties to the Secretary of the Corporation to take a decision in the matter afresh. According to the learned counsel, the Tribunal, while issuing the above direction, had without any justification observed that the Secretary would be at liberty to initiate proper proceedings under Rule 16 of the Kerala Municipality Building Rules “if there are any reasons for doing so”. Learned counsel submits that the Tribunal was not justified in taking the view that there was no proper notice to the original permit holders before revoking the permit. According to the learned counsel, the original permit holders had 3 WA.NO.1977/08 admittedly transferred the building permit in favour of respondents 2 and 3, who were the appellants before the Tribunal. The original permit holders were represented before the Corporation by the subsequent assignees respondent Nos.2 & 3 and they were heard by the Corporation. It is in this context that the learned counsel submits that the Tribunal in the first place was not justified in directing the Corporation to take a fresh decision in the matter after hearing the all parties. (6) We are afraid that the above contention is wholly untenable. As mentioned earlier, respondents 4 and 5 had transferred their right, title and interest over the land in question in favour of respondents 2 and 3. It was thereafter that respondents 2 and 3 had continued with the construction. It is on record that not only respondents 2 and 3, but respondents 4 and 5 also had applied to the Corporation for transfer of the building permit in favour of the assignees. But in Ext.P1, the Corporation had taken the stand that transfer of permit could not be allowed since respondents 2 and 3 had not produced all the relevant documents along with their application. The above and other disputed questions were noticed by the learned Judge in Ext.P7 judgment. The learned Judge had therefore relegated the parties to the Tribunal for resolution of the disputes touching upon the cancellation of the permit, refusal of transfer of permit in favour of respondents 2 and 3 etc. The Tribunal, while considering the matter, took note of the fact that the Corporation while revoking the permit had not issued notice to the original permit holders. 4 WA.NO.1977/08 Proviso to Rule 16 of the Kerala Municipality Building Rules postulates that before revoking a permit, the owner of the permit shall be given sufficient opportunity to explain and the explanation shall be duly considered by the Secretary of the Corporation. Admittedly, this had not been done. Therefore, in our view the Tribunal was justified in directing the Corporation to hear the original permit holders and also other interested persons before taking a decision on the question of cancellation or otherwise of the permit under Rule 16 of the Rules. (7) It is lastly contended by the learned counsel for the appellants that the Tribunal had incorporated an unnecessary rider in its order by observing that the Secretary of the Corporation would be “at liberty to initiate fresh proper proceedings under Rule 16 of the Kerala Municipality Building Rules if there are any reasons for doing so”. The learned single Judge had repelled the above contention holding that appellants were not justified in entertaining such an apprehension. We do not find any reason to take a different view. A careful perusal of the order passed by the Tribunal will undoubtedly show that the Secretary of the Corporation will be at liberty to take a decision in the matter in accordance with law, after hearing the parties and perusing the entire records. 5 WA.NO.1977/08 (8) Having regard to the entire facts and circumstances, we do not find any reason to interfere with the judgment of the learned single Judge. The writ appeal fails and it is accordingly dismissed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE cl