N.K.Unnikrishnan vs Thrikkakara Municipality
2021 Latest Caselaw 867 Ker

WP(C).No.28417 OF 2020(S)        -1-

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                       WP(C).No.28417 OF 2020(S)


PETITIONER/S:

                N.K.UNNIKRISHNAN
                AGED 48 YEARS
                NEDUMPILLY PARAMBU, ATHANI, KUSUMAGIRI P.O.,
                ATHANI, ERNAKULAM-682030.

                BY ADVS.
                SRI.P.RAMAKRISHNAN
                SMT.PREETHI RAMAKRISHNAN (P-212)
                SRI.T.C.KRISHNA
                SRI.C.ANIL KUMAR
                SRI.PRATAP ABRAHAM VARGHESE
                SMT.ASHA K.SHENOY

RESPONDENT/S:

       1        THRIKKAKARA MUNICIPALITY
                MUNICIPAL OFFICE, THRIKKAKARA P.O., KAKKANAD-
                682030, REPRESENTED BY ITS SECRETARY.

       2        SECRETARY,
                THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE,
                THRIKKAKARA P.O., KAKKANAD-682030.

                R1-2 BY ADV. SRI.G.G.MANOJ




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28417 OF 2020(S)            -2-




                            JUDGMENT

Dated this the 11th day of January, 2021

S. Manikumar, C.J.

Instant Public Interest Litigation is filed for a mandamus

directing the respondents to take immediate steps to demolish the

illegal construction made below the water tank in Ward No. X of

Thrikkakara Municipality.

2. Petitioner has sought for a further direction to the respondents

to take action on Ext. P4 and P5 representations.

3. Short facts leading to the filing of writ petition are as

hereunder:-

In ward No. X of the Thrikkakara Municipality, there is a public

well situated in puramboke land. Adjacent to this well, there is a bore

well and an overhead water tank. The water from the well and the bore

well used to be pumped and stored in the overhead tank and

distributed in different areas of Nedumkulangara, a place within the

Municipal area, as and when required. According to the petitioner, the

area below the water tank was encroached by some local people and it

was converted as a room. The road as well as the way to the water

tank were also encroached. Petitioner submitted an application under

the Right to Information Act, 2005 seeking information as to whether

any permission has been granted to anybody to construct the building

to which the Municipality vide Ext. P3 replied in the negative. Further,

it was also stated that necessary action as per the Kerala Municipality

Act and Rules would be initiated. However, no action was initiated

and in the circumstances, petitioner submitted Ext. P4 representation

and further Ext. P5 reminder. Petitioner has further submitted that no

action has been taken so far.

4. On 18th December 2020, we directed notice to Mr. G. G.

Manoj, learned Standing Counsel for the Municipality. We further

directed Mr. V. Tek Chand, learned Senior Government Pleader to get

instructions, as to whether the construction is put up by the

Groundwater Department or the Kerala Water Authority.

5. On this day, when the matter came up for further hearing, on

instructions, Mr. G. G. Manoj, learned Standing Counsel appearing for

the respondents submitted that resident association of Thrikkakara

Municipality has put up a construction without permission and hence

notice dated 04.01.2020 under Section 406 (1) of the Kerala

Municipality Act, 1994 has been issued to those who have constructed

the said building. He further submitted that action has been taken for

the alleged illegal constructions made below the water tank in ward

No. X of Thrikkakara Municipality.

Section 406 (1) of the Kerala Municipality Act, 1994 reads

thus:-

"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 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.]"

6. Now that action has been taken under the abovesaid statutory

provision, no mandamus is required to be issued. However, competent

authority who has initiated action, should act in accordance with law

and notice dated 04.01.2020 issued under Section 406 (1) of the

Kerala Municipality Act, 1994, should come to a logical end. Action

as ordered, has to be taken after considering the reply, in accordance

with law, within three weeks from the date of receipt of a copy of this

judgment.

With the above directions, writ petition is disposed of.

Sd/-

S.MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P.CHALY JUDGE Eb

///TRUE COPY/// P. A. TO JUDGE

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF PHOTOGRAPH SHOWING AT THE TIME OF ILLEGAL CONSTRUCTION.

EXHIBIT P2 TRUE COPY OF PHOTOGRAPH SHOWING AFTER ILLEGAL CONSTRUCTION.

EXHIBIT P3 TRUE COPY OF REPLY GIVEN BY THE PUBLIC INFORMATION OFFICE OF TRIKKAKKARA MUNICIPALITY DATED 8.5.2020 WITH ENGLISH TRANSLATION.

EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 15.6.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WITH ENGLISH TRANSLATION.

EXHIBIT P5 TRUE COPY OF REMINDER DATED 25.8.2020 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS WITH ENGLISH TRANSLATION.