P.SHAREEFA Vs. THALASSERY MUNICIPALITY

JUDGEMENT

(1.) Petitioner is the owner in possession and enjoyment of 12.50 cents situate in Resurvey No.1 of Thiruvangad Amsom, Desom within the jurisdiction of the Thalassery Municipality. Petitioner secured, Ext.P2 building permit and has carried out a construction, however, based on the complaint filed by the 4th respondent, action was initiated against the petitioner under Section 406(1) and (2) of the Kerala Municipality Act, 1994. Petitioner entered appearance and filed objection and thereafter secured Ext.P11 judgment from this Court, directing the second respondent to take a decision, after providing an opportunity of hearing to the petitioner . Now, in compliance with the directions so issued, Ext.P13 order is passed by the second respondent dated 12.9.2018, finding that petitioner has encroached into public properties and has carried out the construction, which are liable to be removed. Consequent to Ext.P13, Ext.P14 order is also passed directing the petitioner to do the necessary in accordance with Ext.P4 order within 15 days from the date of receipt of the said notice. It is thus challenging Exts.P13 and P14, this writ petition is filed.

(2.) Heard learned counsel for the petitioner and learned counsel appearing for respondents 1 to 3 and perused the pleadings and documents on record.

(3.) Apparently, Ext.P13 order is an appealable order before the Tribunal for Local Self Government Institutions. Learned counsel for the petitioner submitted that none of the aspects pointed out by the petitioner before the second respondent was considered, and therefore, Ext.P14 order suffers from vice of arbitrariness and illegality, liable to be interfered with by this Court under Article, 226 of the Constitution of India. Therefore, the controversy revolves around Ext.P13. I have gone through Ext.P13 and I find that the said decision was taken after providing an opportunity of hearing to the petitioner and assigning various reasons, which are dependant upon various factual circumstance which can only be deciphered by a fact finding authority after calling for the files leading to Exts.P13 and P14 orders. In that view of the matter I do not find any reason at this stage of the proceedings to interfere with Exts.P13 and P14 orders. At that point of time, learned counsel for the petitioner submitted that, petitioner will file an appeal before the Tribunal for Local Self Government Institutions, however, coercive action threatened under Exts.P13 and P14 may be directed to be kept in abeyance for a short period.