Kerala High Court

P.S.George vs The Kothamangalam Municipality on 27 January, 2022

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                       THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

              THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943

                                 WP(C) NO. 32031 OF 2016

PETITIONER:


               P.S.GEORGE, AGED 51 YEARS, AGED 51, S/O. XAVIER, PANICHEPPADY HOUSE,
               KUTHUKUZHY P.O., VALIYAPARA, ERNAKULAM DISTRICT.

               BY ADVS.
               SRI.T.A.UNNIKRISHNAN
               SRI.T.R.KANNAN



RESPONDENTS:

      1        THE KOTHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY,
               MUNICIPAL OFFICE, KOTHAMANGALAM, PIN-686 691.

      2        THE SECRETARY, KOTHAMANGALAM MUNICIPALITY, MUNICIPAL OFFICE,
               KOTHAMANGALAM, PIN-686 691.

               BY ADVS.SHRI.PEEYUS A KOTTAM, SC, KOTHAMANGALAM MUNICIPALITY
               SHRI.JOICE GEORGE, SC, KOTHAMANGALAM MUNICIPALITY




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 32031 OF 2016
                                            :: 2 ::




                                       JUDGMENT

Dated this the 27th day of January 2022

This writ petition is filed by the petitioner seeking direction to quash

Ext.P5 order passed by the second respondent - the Secretary,

Kothamangalam Municipality.

2. The case put forth by the petitioner is that petitioner is the owner

of a two storied commercial building having plinth area of 124 square

meters in the ground floor and 115 square meters in the first floor situated

in Survey No.1130/1 of Kothamangalam village within the limits of the

Kothamangalam Municipality. It is admitted by the petitioner that he

constructed a leanto in the courtyard of the building using

aluminium/metal sheets to protect the rolling shutters from sun and rain,

which according to the petitioner is only a temporary construction without

pillars and walls. Anyhow, the Secretary of the Municipality has issued

Ext.P4 notice dated 26.7.2016 directing the petitioner to be present before

the Municipality with appropriate records with regard to the illegal and

unauthorized construction carried out by the petitioner. The Secretary of

the Municipality has also issued Ext.P5 notice dated 18.8.2016 apparently

under Section 406(3) of the Kerala Municipality Act, 1994 in consequence to WP(C) NO. 32031 OF 2016 :: 3 ::

a notice issued under Section 406(1) and a consequential provisional order

under Section 406(2) of the Act, 1994 directing the petitioner to remove the

illegal construction carried out since it is in violation of Rule 24(3) of the

Kerala Panchayat Building Rules, 1999 within seven days. Anyhow,

petitioner has not produced the notice issued under Section 406(1) and the

provisional order issued under Section 406(2) before this court in order to

identify as to whether the exact nature of illegal construction was pointed

out to the petitioner in the provisional order. However, from Ext.P2

photograph produced by the petitioner it is clear that a leanto

construction is made from the building towards road side and admittedly

without securing permit from the Secretary of the Municipality.

3. A counter affidavit is not filed in the writ petition and it is

pending before this court from the year 2016 without securing any interim

orders. The contention put forth by learned counsel appearing for the

Municipality is that the construction put up by the petitioner is in violation

of Rule 24(3) of the Kerala Municipality Building Rules, 1999 since a 3 meter

distance is required for putting up any construction from any National

Highway, State Highway, district road and a notified roads within the

limits of the Municipality.

WP(C) NO. 32031 OF 2016 :: 4 ::

4. I have heard respective counsel across the bar and perused the

pleadings and materials on record.

5. The issue is guided by Section 383A of the Kerala Municipality Act,

1994, which was brought into force with effect from 24.3.1999, which reads

thus:

383A. Prohibition of constructions abutting the public roads.-- Notwithstanding anything contained in this Act, no person shall construct any building or structure other than a compound wall in any land abutting any National Highway, State Highway, District Road or any other roads notified by the Municipality within a distance of three metres from the road boundary of his land abutting the road:

Provided that the said limit of three metres shall not be applicable for the construction, subject to the Building Rules, of first floor or second floor or of both upon a building, existing on the date of coming into force of this Act:

Provided further that, any path, bridge or similar constructions used solely for entering into any building or weather shade or sun shade forming part of the building may, subject to the Building Rules, be constructed within the said three metre limit:

Provided also that when the part of the existing building is demolished for the implementation of any town planning scheme, it shall be in such a way as not to adversely affect the remaining portion of the building or the new addition made and the complete responsibility regarding the safety and stability of it shall be on the owner of the building and when he makes such demolition it shall be performed at his own cost and responsibility and he shall not be eligible for any compensation for the said construction and he shall submit a consent letter for this purpose alongwith the application.

WP(C) NO. 32031 OF 2016 :: 5 ::

6. Consequentially, Rule 24(3) of the Kerala Municipality Building

Rules, 1999 takes care of the construction within a distance of 3 meters

from any notified road, which reads thus:

Rule 24(3) - Every building upto 10 meters in height shall have a minimum front yard of 3 meters depth:

Provided that where 3 meters depth cannot be maintained laterally throughout due to the peculiar shape of the plot, it shall suffice if the mean depth is not less than 3.0m with minimum depth at all points not less than 1.80 meters.

7. It is also significant to note that the Secretary of the Municipality

has issued a notice and a provisional order under Sections 406(1) and

406(2) of Act, 1994 and it was thereafter only the impugned Ext.P5 order

was passed under Section 406(3) of the Act, 1994. When a query was raised

as to whether the road passing in front side of the building in question is a

notified road, the learned Standing Counsel for the Municipality submitted

that he has not received any specific instructions with respect to this.

8. In that view of the matter, I think it is only appropriate that the

Secretary of the Municipality is directed to reconsider the action taken

under Sections 406(1) and 406(2) of Act, 1994 after quashing Ext.P5.

Therefore, the writ petition is disposed of quashing Ext.P5 order dated

18.8.2016 and directing the Secretary of the Municipality to reconsider the