IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
WP(C) NO. 6408 OF 2016
PETITIONERS:
1 JOB ANTONY
AGED 56 YEARS
S/O. LATE K.J. ANTONY, PERMANENTLY RESIDING AT
KANDATHIPARAMBIL HOUSE, HILL ROAD, ALUVA P.O., ALUVA
WEST VILLAGE, ALUVA TALUK, ERNAKULAM - 683 101.
2 ANIL ANTONY
S/O. LATE K.J. ANTONY, PERMANENTLY RESIDING AT
KANDATHIPARAMBIL HOUSE, HILL ROAD, ALUVA P.O., ALUVA
WEST VILLAGE, ALUVA TALUK, ERNAKULAM - 683 101.
BY ADVS.
SRI.R.O.MUHAMED SHEMEEM
SRI.T.P.ABDUL HAMEED
SMT.NASEEHA BEEGUM P.S.
RESPONDENTS:
1 THE SECRETARY, ALUVA MUNICIPALITY
ALUVA- 683 001.
2 ROSY JOSEPH
W/O.LATE K.ANTONY, PERMANENTLY RESIDING AT KADALIKKATTU
HOUSE, THAAIKKATTUKARA P.O., ALUVA TALUK, ERNAKULAM
DISTRICT - 683 106.
3 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO MINISTER FOR TRANSPORT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
BY ADV SRI.ARAVIND P. MATHEW, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.6408 of 2016 2
JUDGMENT
Dated this the 17th day of June 2022 This writ petition is filed by the petitioner seeking the following reliefs:
i) to issue a writ of certiorari or any other appropriate writ order or direction calling for the records relating to Ext P7 and quash the same as illegal, improper, unconstitutional.
ii) to issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent to take appropriate decision on Ext- P6 in accordance with law after affording an opportunity to hear the petitioner
iii) to grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case
2. Exhibit P7 order is passed by the Secretary of the Aluva Municipality dated 14.12.2015, whereby the petitioner was informed that Exhibit P7 provisional order is issued under section 406(1) of the Kerala Municipality Act, 1994 and if the petitioner is not complying with the directions contained thereunder to demolish the unauthorised construction, action will be initiated under sub-sections 2, 3 & 4 of section 406 of the Kerala Municipality Act, 1994. It is thus challenging Exhibit P7, the writ petition is filed.
In my considered view, section 406 of the Kerala Municipality Act, 1994 deals with demolition or alteration of building work unlawfully commenced, W.P.(C) No.6408 of 2016 3 carried on or completed. For the purpose of convenience and brevity, it is extracted hereunder:
406. Demolition or alteration of building work unlawfully commenced, carried on or completed.-- (1) Where the Secretary is satisfied-
(i) that the construction, reconstruction or alteration of any building or digging of any well-
(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Council; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or specifications on which such permission or decision was based; or
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or
(ii) that any alteration required by any notice issued under section 395 has not been duly made; or
(iii) that any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 405, he may make a provisional order requiring the owner or the person for whom the work is done to demolish the work done, or so much of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alterations as may, in the opinion of the Secretary, be necessary to bring the work in conformity with the provisions of this Act, bye-laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such W.P.(C) No.6408 of 2016 4 permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.
Provided that the Secretary may, on realisation of a compounding fees as may be fixed by the Government, regularise any constructions, reconstruction or alteration of any building or digging of any well, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the approved plan, if such construction, reconstruction or alteration of the building or digging of the well does not contravene any of the provisions and specifications mentioned in this Act or the Building Rules made thereunder.] (2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice why the order should not be confirmed.
(3) Where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the same to such extent as he may think fit to make, and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished or the well dismantled, as the case may be and the expenses therefor shall be recoverable from the owner or such person.
(4) Notwithstanding anything contained in sub-section (2) or sub- section (3), prosecution proceedings against the owner or the person for whom the work is done may be inititated.
[(5) Where the Government is satisfied that the construction, reconstruction or alteration of any building has been carried out in breach of any of the provisions of this Actor any rules made thereunder W.P.(C) No.6408 of 2016 5 or any direction lawfully given by the Government, or Secretary, the Government may direct the Secretary of the Municipality to cause demolition of such construction, reconstruction or alteration unlawfully carried out and if such direction is not complied within the time limit specified in such direction, the Government may arrange the demolition and cost thereof shall be recovered from the Municipality."
3. There is a clear cut procedure prescribed thereunder in order to proceed with any unauthorised or illegal construction. Section 406(1) is only a provisional order and on on receipt of the same, petitioner is entitled as of right to file objection to the same and participate in the proceedings. It is thereafter, the Secretary is vested with powers under sub-section (3) to confirm the provisional order passed by the Secretary. In that process, petitioner is entitled as of right to file suitable application for regularisation of any unauthorised construction before the Secretary. The Secretary is also vested with powers to regularise the construction, if the construction is made in accordance with the Kerala Municipality Building Rules, 1999.
4. On a deeper analysis of the facts and circumstances of the case and co-relating the same with section 406 of the Kerala Municipality Act, 1994, it is clear that the challenge made against Exhibit P7 is a premature one. Therefore, the petitioner is at liberty to participate in the proceedings by filing suitable objection, if the directions contained in Exhibit P7 is not already complied with by the petitioner. This I say so because the coercive action W.P.(C) No.6408 of 2016 6 pertaining to Exhibit P7 was stayed by this Court initially for a period of one month on 19.2.2016, which was extended once for a period of four months on 18.3.2016.
In that view of the matter, the writ petition is disposed of, leaving open the liberty of the petitioner to file objection, if any, within two weeks against Exhibit P7 before the Secretary of the Municipality, if not already done and the Secretary of the Municipality is directed to finalise the proceedings pertaining to Exhibit P7 order, at the earliest and at any rate, within two months thereafter. However, I make it clear that if already action is taken pursuant to Exhibit P7 notice, the said order shall not be disturbed subject to any right of challenge of the petitioner over the same.
Sd/-
SHAJI P.CHALY
smv JUDGE
W.P.(C) No.6408 of 2016 7
APPENDIX
PETITIONER EXHIBITS
P1-TRUE COPY OF THE PARTITION DEED DATED
02/09/2013 OF ALUVA S.R.O
P2-TRUE COPY OF THE PLAINT IN O.S 511/2015
PENDING BEFORE THE MUNSIFF COURT, ALUVA.
P3-TRUE COPY OF THE PLAINT IN O.S 592/2015
PENDING BEFORE THE MUNSIFF COURT, ALUVA
P4-TRUE COPY OF THE NOTICE DATED
09/11/2015, E2-1281/2015 ISSUED BY THE IST
RESPONDENT
P5-TRUE COPY OF THE ORDER DATED 09/11/2015,
E2-1281/15 ISSUED BY THE IST RESPONDENT
P6-TRUE COPY OF THE OBJECTION/EXPLANATION
ON 23/11/2015 TO THE IST RESPONDENT
P7-TRUE COPY OF THE ORDER DATED 14/12/2015
IN E2-1281/15 HASTILY AND ILLEGALLY ISSUED
BY THE IST RESPONDENT.