Kerala High Court
George C. Kappan vs State Of Kerala on 3 February, 2006
Equivalent citations: 2006(3)KLT801
Author: S. Siri Jagan
Bench: S. Siri Jagan
JUDGMENT S. Siri Jagan, J.
1. The petitioner is challenging Ext.P10 order in this Original Petition. The issue involved is regarding a building constructed by the petitioner. Admittedly, the construction was not in compliance with the building rules applicable. Originally, the petitioner obtained exemption from certain provision of the building rules as per Ext.P2 Government Order, subject to certain conditions. It appears that pursuant thereto, the petitioner did not submit a revised plan before the Municipality, but constructed the building and completed the same in 1990. The Commissioner of the Municipality took objection to the said construction and directed the petitioner to demolish the building since it has been constructed in violation of the Building Rules. The petitioner filed an appeal before the Municipal Council, which took Ext.P5 decision thereon setting aside the order of the Commissioner and directing assessment of the building to property tax Ext.P5 states that two Members of the Council dissented and demanded that since the building was constructed after obtaining exemption from the Government, the matter should be referred to the Government and sanction obtained. It appears that one of the dissenting members filed a petition before the Government in which the Government passed Ext.P10 order pursuant to the directions issued by this Court in O.P.9959/1993. By the said order, the Government directed the petitioner to rectify the four defects mentioned therein. The order further stated that if the petitioner does not comply with the said directions, the construction shall be treated as unauthorised and the building shall be demolished as per rules by the Municipality soon after the time given to the party expires. The petitioner is challenging Ext.P10 order in this Original Petition.
2. I have heard the learned Counsel for the petitioner as also the learned Government Pleader.
3. Before I can go into the merits of the case, I am called upon to dispose of a contention raised by the petitioner to the effect that the Government did not have jurisdiction to pass Ext.P10 order. The contention is raised in ground B of the Original Petition, which reads thus:
B. The Commissioner of Palai Municipality has initiated action for violation of the Building Rules. Against the said proceeding petitioner preferred appeal before the Municipal Council. The Municipal council as per Ext.P5 resolution took decision for cancellation of the proceedings of the Municipal Commissioner and accordingly set aside the proceedings of the Municipal Commissioner. The Council acted as per Section 364 of the Act, the said decision of the Municipal Council is final and binding subject to review only as per Section 364(2) of the Act. So long as Government has not initiated suo motu steps to review Ext.P5 decision of the Council as per Section 364(2) the Government acted without jurisdiction in initiating action as per Ext.P6. As per the act provision, Municipal Council is supreme in matters within their sphere, the Govt. comes in only in enjoined by the Act provision, say for instance as per Section 364(2) and not otherwise. As a matter of fact, Govt. cannot initiate action of the nature contemplated by Ext.P6 on the individual representation of the member of the Municipality. What has taken place is nothing other than this. This is evident from Ext.P6 itself.
4. The contention appears to be that when the Municipal Council takes a decision, a dissenting member cannot file any appeal or revision against the decision of the Municipality before the Government and therefore Ext.P10 order passed by the Government on appeal/revision filed by a dissenting member is without jurisdiction. The learned Counsel for the Municipality would argue that in so as Ext.P10 order was passed as per directions of this Court in Ext.P8 judgment, the said objection is not available to the petitioner at this point of time. The learned Government Pleader would also argue that in so far as the Government Pleader would also argue that in so far as the Government had ultimate power to set aside the decisions of the Municipal Council, it cannot be said that the Government does not have jurisdiction to deal with the matter.
5. On due consideration of the contentions of counsel, I am of the opinion that the contention of the petitioner is well founded. When Municipality takes a decision irrespective of whether one or two members make a dissenting note, it does not become any the less a decision of the Municipality. The dissenting members being part of the Municipality itself, they cannot challenge the decision of the Municipality because that decision after the same is taken becomes their decision also as part of the Council. It does not require any authority to hold that the Municipal Council cannot challenge its own decision before any appellate or revisional forum. If such a procedure is given the stamp of legality, that would give rise to very anomalous situations in so far as a sole dissenting member of the Municipality would become entitled to challenge decisions of Municipality before higher forums, which is not permitted under law. The fact that the Government had, in fact, powers to suo motu revise the orders of the Municipal Council does not change the situation in so far as the Government has not chosen to exercise their suo motu powers in this case. Ext.P10 decision has been passed in the petition filed by one of the dissenting members of the Municipality. The contention of the learned Government Pleader that Ext.P10 order has been passed pursuant to the directions of this Court in Ext.P8 judgment also would not hold good. In Ext.P8 judgment, I do not find any decision to the effect that the petition filed by the dissenting member is maintainable before the Government. The Government has only been directed to dispose of the petition after considering the objections filed by the petitioner. I do not find any decision of any aspect of the case in Ext.P8 decision.
6. The result of the above discussion is that the petition filed by the dissenting member of the Municipality against the decision of the Municipality would amount to challenging the decision of the Municipality itself and, therefore, the petition could not have been entertained by the Government under any provision of law. The order does not also mention that the Government had, in fact, chosen to exercise its suo motu powers under the Kerala Municipalities Act. In the above circumstances, Ext.P10 order passed on a petition which is not maintainable in law cannot be sustained.
Accordingly, Ext.P10 order is quashed. However, I make it clear that this shall not preclude the Government from exercising its suo motu powers under the relevant provisions of the Municipalities Act. The Original Petition is allowed as above, but, without any order as to costs.