The main legal point established in the judgment is the interpretation of the Commissioner's powers under S.230 and S.406 of the Kerala Municipal Corporations Act, 1961, in executing work or taking measures for removal of encroachment.

1. This appeal is directed against the order of a learned judge of this Court in C.M.P. No. 7987 of 1980 in O.P. No. 1178 of 1980-F. The appellants are the Corporation of Cochin and its Town planning Officer and the respondent, the petitioner in the O P.

2. The facts of the case, in brief, are as follows: The respondent erected a milk booth for the purpose of carrying on milk trade on the foot-path by the side of Subhash Park without obtaining any permission from the Corporation. When he was asked to dismantle and remove the same, he moved the Government and obtained a stay of the proceedings by the Corporation. Thereafter the Government passed orders asking him to shift the booth to another convenient place with the permission of the Corporation. He then made an application on 12-9-1977 offering to erect the booth in front of the Corporation office and inter alia proposed that the booth "will cover the open gutter, the area behind the gutter and a portion of land owned by the K.S.R.T.C." He also stated that be will obtain the formal sanction from K.S.R.T.C. at an early date. This was sanctioned by the Corporation by Ext. P3 order dated 17-2-1978 with which was annexed a site-plan produced as Ext. R2. The proposed booth was to cover only the gutter and the land behind as offered in his application. The respondent however did not avail himself of the sanction and continued his unlawful occupation of the booth erected by him. The Corporation then issued a notice to him to remove the booth. Thereupon he filed the O. P. and obtained a stay of the proceedings of the Corporation. The O. P. was disposed of by the learned judge as follows by bis judgment dated 18-4-1980:

"Having gone through the records and having heard the counsel for the petitioner and the counsel for the Corporation, I am satisfied that the ends of justice would be met if a direction is given to the respondents to allow the petitioner to shift his milk booth to the place suggested in Ext. P3 notice TP6/16342/77 dated 17-2-78. The petitioner is directed to see that the shifting is completed within two months from this date. I am sure the respondents will also extend their co-operation for the petitioner obtaining electric connection and other facilities."

3. Instead of shifting the booth to the site in Ext. P3 as directed by the judgment he constructed the booth above the gutter and on the footpath by which 3/4th of the footpath was covered, in clear violation of the proposal in Ext. RI, the sanction granted under Ext. P3 and the direction in the judgment. On 2-6-1980 it was brought to the notice of the Assistant Town Planning Officer that the booth was being construed on the footpath, and in contravention of the sanction opposite to the Corporation office. Thereupon, the Assistant Town Planning Officer gave notice to persons who were carrying on the construction to desist from further construction and to remove the unlawful structure within an hour. As this was not complied with, the Corporation removed the unlawfully erected structure. Then the petitioner moved this Court by the C.M.P. praying that the damage done to him may be repaired, his Milma Kiosk may be directed to be restored to its original place and for appropriate action for violating this Court's judgment. The respondent alleged that on the morning of 2-6-1980, the respondent's salesman opened the booth by about 9-00 A.M. Immediately thereafter 7 or 8 employees of the Corporation came in a van belonging to the Corporation, asked the salesman to keep away from the booth and started demolishing the booth. The salesman pleaded with the men not to demolish the booth. But he was driven away by the Corporation employees. The case put forward before the learned judge was that the demolition of the booth was in violation of the provisions contained in S.230 of the Kerala Municipal Corporations Act, 1961, for short, the Act. The learned judge accepted this plea and directed the Corporation to carry out