Abdul Kalam vs Kochi Municipal Corporation
2021 Latest Caselaw 13507 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
        THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
                        WP(C) NO. 39647 OF 2015
PETITIONER/S:

            ABDUL KALAM
            AGED 43 YEARS
            S/O. ABDUL KHADER, VELUTHEDATH, AROOR VILLAGE,
            CHANDIROOR P.O., CHERTHALA.

            BY ADV SRI.B.PRAMOD



RESPONDENT/S:

    1       KOCHI MUNICIPAL CORPORATION
            CORPORATION OFFICE, KOCHI, REPRESENTED BY ITS
            SECRETARY, PIN-682 011.

    2       THE SECRETARY
            KOCHI MUNICIPAL CORPORATION, CORPORATION OFFICE, KOCHI-
            682 011.

    3       *ADDL.R3. P.M.DINESHAN,
            CONVENOR, NAVODHANA SHAKTHI CHARITHRA PRADARSHANAM,
            43/20, CHENGANATH, AYYAPPANKVU, KOCHI 18,

            IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 20.01.2016
            IN I.A.NO.843/2016.

    4       *ADDL.R4.THE SUB INSPECTOR OF POLICE,
            CENTRAL POLICE STATION, ERNAKULAM. ADDL.R4

            IS IMPLEADED AS PER ORDER DATED 01.04.2020 IN IA
            13824/2017.

            BY ADVS.
            SRI.RAAJESH S.SUBRAHMANIAN,SC,COCHIN CO
            SRI.R.HARISHANKAR
            SRI.MADHU RADHAKRISHNAN



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 39647 OF 2015
                                        2



                                  JUDGMENT

This writ petition is filed by the petitioner, a dealer in uniforms and

other allied materials, which is being conducted in a commercial building

known as 'Lalan Towers', situated at the High Court Junction, within the

limits of the Kochi Municipal Corporation. In the year 2014, the Corporation

constructed an 'open air stage' just infront of the said building in a property in

its possession and ownership with the intention of letting out to organizations

for conducting programmes and meetings, which is having a plinth area of

around 200 sq. metres. The said property is occupying the space between the

public road and the building in question except a passage in between the

commercial building and the adjoining property of the Corporation.

According to the petitioner, though the proposal was to construct an open air

stage, the construction was effected in an entirely different manner and the

stage was put up with a roof using polymer sheets, and a space for audience

which remains unroofed and built in the shape of a half snake boat. The case

projected by the petitioner is that, no permit has been obtained for the

construction, on the premise that the stage was constructed on a land owned

by the 1st respondent Corporation. The grievance of the petitioner is that the

stage so constructed would block the view to the commercial building

including the petitioner's shop and further that, the rest of the area which was WP(C) NO. 39647 OF 2015

supposed to be remaining as an open air is being put up with temporary

plastic sheets while meetings are conducted therein. It is also submitted that

there would be meetings, dharnas and various forms of agitations in the stage

on a daily basis and virtually the temporary roof put up would become

permanent and therefore, the view of the ground floor as well as the 1 st floor of

the building occupied by the petitioner completely gets blocked. In the above

back drop, petitioner seeks the following reliefs:-

"(i) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to remove the open air stage constructed in front of the 'Lalan Tower' to any other convenient place;

OR

(ii) Issue a writ of mandamus or any other appropriate writ or order directing 1 st respondent to remove the roof above the open air stage and not to put up roof, temporary or permanent over the space for audience;

(iii) Issue such other order as this Hon'ble Court deems fit and necessary in the facts and circumstances of the case."

2. Petitioner has produced photographs and various other notices in

order to demonstrate that meetings are being conducted frequently by

constructing temporary roof and therefore, substantial prejudice is caused to WP(C) NO. 39647 OF 2015

the petitioner as well as others occupying the commercial building.

3. The 1st and 2nd respondents, i.e., the Corporation and the Secretary

have filed a joint counter affidavit basically stating that, as per the approved

plan of the commercial building 'Lalan Towers', the approach is through a 10

meter wide access on the southern side of the said building, whereas, the open

air stage is on the northern side of the building. Moreover, the premises

where the open air stage is constructed is protected by way of a compound

wall and therefore, the averment that the view of the commercial building

would be blocked is incorrect. It is also submitted that the area is being given

to conduct programmes with the condition that no temporary structures are

put up in the open air space as directed in the interim order.

4. Along with I.A.No.1/2019, petitioner has produced additional

documents probably to establish before this Court that an entry is available

from the northern main road through a passage and therefore, the contention

that the entry is only from the southern side of the building is not true and

correct.

5. I have heard learned Counsel for the petitioner Sri. B.Pramod and

Smt. Namitha Jyothish and Mr. Harisankar, appearing for the Corporation

and the Secretary and perused the pleadings and the materials on record. WP(C) NO. 39647 OF 2015

6. The discussion of facts made above would make it clear that the main

grievance projected by the petitioner is on account of a roof constructed to the

stage in the property in question belonging to the Kochi Corporation and the

temporary structures put up when meetings are conducted. It is an admitted

fact that it is a property belonging to the Koch Corporation and it is for the

owner of the property to decide the manner in which the property is to be

utilized. In fact the issue is guided by Section 368 of the Kerala Municipality

Act, 1994, which reads thus:-

"368. Power to allow certain works.- (1) The Municipality may grant a licence, subject to such conditions and restrictions as it may think fit, to the owner or occupier of any premises to cover drains necessary for access to the premises.

(2) A Municipality, may grant a licence, subject to such conditions and restrictions as it may think fit, for the temporary erection of pandals and other structures in a public street vested in the Municipality or in any other public place the control of which is vested in the Municipality.

(3) A Municipality shall have power to lease roadsides and street margins vested in it for occupations on such terms and conditions and for such period as it may fix.

(4) No licence under sub-section (1) or a lease under sub-section (3) shall be granted if the construction or occupation is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of WP(C) NO. 39647 OF 2015

the road as such.

(5) The Government may, by notification, restrict and impose such control in, as they may think fit, the exercise by Municipalities in general or by any Municipality in particular, of the powers under sub-sections (1) and (3).

(6) On the expiry of any period for which a licence has been granted under this section, the Secretary, may, without notice, cause any construction put up under sub-section (1) or sub-section (2) to be removed, and the cost thereof shall be recovered in the manner provided in section 538 from the person to whom the licence was granted. "

7. On an analysis of the said provision, it is quite clear and evident that

the Corporation is vested with ample powers to grant license subject to such

restrictions and conditions as it may think fit for temporary erection of

pandals and other structures in a public street vested in the Municipality or in

any other public place the control of which is vested in the Municipality.

Moreover, as per the Kerala Municipality Building Rules, 1999, in order to

carry out any construction of any building, the Secretary of the Corporation

had to approve the lay outs or plot sub divisions and the plans of the proposed

work to the effect that the proposed work is in conformity with the provisions of

these Rules. That was the only binding provision under the Rules 1999, so far as

the construction for and on behalf of the Municipality/Corporation is concerned.

Therefore, the contention advanced by the petitioner that the Corporation WP(C) NO. 39647 OF 2015

without securing any permission has carried out the construction, cannot be

sustained. Moreover, petitioner has not pointed out anywhere in the writ

petition, violation of any of the provisions of the Act, 1994 and the Rules,

1999, so as to impress upon this Court that there was arbitrary and illegal

exercise of power on the part of the Secretary of the Corporation in carrying

out the constructions.

8. Anyway, it is an admitted fact that only an open air stage with a roof

using a temporary material was constructed by the Corporation probably for

convenience when the meetings are conducted. No doubt, in order to put up

temporary structures, a permission from the Secretary of the Corporation is

required as per the provisions of the Kerala Municipality Act, 1994, the Kerala

Municipality Building Rules, 1999, and so also later in accordance with the

provisions of the Kerala Municipality Building Rules, 2019. In fact, the

interim order was passed by this Court on 20.01.2016, wherein, while

granting permission to a 3rd person to conduct a meeting which was scheduled

earlier, to put up temporary shamiyana/tents from 21.01.2016 to 24.01.2016

as a special case, it was specifically directed that the programmes in future

will abide by the interim order dated 04.01.2016, whereby, additional roofing

except the roof over the dais in the open air stage in question was prohibited

pending disposal of the writ petition.

WP(C) NO. 39647 OF 2015

9. The pleadings put forth and the contentions advanced would make it

clear that the petitioner is more aggrieved by the temporary roof put up over

the audience area since it was interfering with the view enjoyed by the

petitioner and others in the commercial building. It is also quite clear and

evident from the provisions of Act 1994 as well as the Rules referred to above

that, without securing permission from the Municipality to put up temporary

structures and permission from the Police to conduct meetings, no such

exercise can be undertaken by anyone. But, it cannot be said that the area in

question cannot be set apart by the Corporation to any organizations or

individuals to stage protests or conduct meetings, failing which the general

public would suffer due to the reason that if permission is not granted to

occupy the said space, people would be using the foot path and the road

margin for those purpose.

10. Taking into account the entire aspects on record, I am of the

considered opinion that the writ petition can be disposed of with appropriate

directions. The Corporation and the Secretary shall ensure that no

organizations/individuals are using the property in question without securing

permission from the Corporation. It is also made clear that no temporary

structures shall be permitted in the property without securing permission

from the Secretary of the Corporation. The Secretary shall ensure that any

such permission granted shall not obstruct the free ingress and egress of the WP(C) NO. 39647 OF 2015

petitioner and others in the commercial building and that the meeting

conducted is not causing prejudice to the visitors of the commercial shopping

complex so as to interfere with the business conducted by the petitioner and

others.

The writ petition is disposed of as above.

Sd/-

SHAJI P.CHALY JUDGE

uu 01.07.2021 WP(C) NO. 39647 OF 2015

APPENDIX OF WP(C) 39647/2015

PETITIONER ANNEXURE

P1 : COPY OF THE LEASE DEED.

P2 : COPY OF THE LICENSE ISSUED BY THE 1ST RESPONDENT CORPORATION TO THE PETITIONER.

P3 : COPY OF THE APPROVED PLAN OF THE OPEN AIR STAGE.

P4 : COPY OF THE REPLY DTD.31.10.2015 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

P5 : COPY OF THE PHOTOGRAPHS OF THE STAGE.