IMPORTANT POINT
The authority, who is conferred with the power to exercise discretion, must exercise it legally, fairly, cogently, reasonably and without arbitrariness. It is also to be exercised judicially-Even though the discretion conferred under Section 411 of Act, 1994 is not without limitations, definitely the Secretary is vested with powers to exercise the discretion in accordance with law and tempered with legal principles specified above.

JUDGMENT :

SHAJI P. CHALY, J.

The appeal is filed by respondents 3 to 5 in the writ petition against the judgment of the learned single Judge dated 31.01.2020 in W.P.(C) No. 2843 of 2020. Respondents 1 and 2 are the petitioners therein, who are the tenants of a building complex owned by the appellants.

2. The subject issue raised by the writ petitioners is one under Section 411 of the Kerala Municipality Act, 1994 (for short 'Act, 1994) dealing with precautions in case of dangerous structures on the basis of the power conferred on the Secretary of the Municipal Corporation.

3. The learned single Judge, after hearing learned counsel for the appellants and the learned Standing Counsel for the Municipal Corporation, has passed the following directions:

“4. I am not adverting to this rival contentions as of now. However, I make it clear that building shall not be demolished pursuant to any order passed, if any, adversed to the interest of the petitioner, without waiting for a week, after serving a copy on the petitioner.”

4. The case has a chequered history. The issue started with a Public Interest Litigation filed by one P.D. Joseph as W.P.(C) No. 37864 of 2016, that many dangerous buildings are situated within the limits of Thrissur Municipal Corporation and sought for a direction to the Municipal Corporation to demolish the buildings, especially the building in question. As per judgment dated 28.11.2016, the said writ petition was disposed of observing that it is for the Thrissur Municipal Corporation to visit the building in question and initiate appropriate action, if it is really in a dilapidated and dangerous condition, in accordance with law. It was further observed that, the Court sitting in writ jurisdiction cannot visualise the state of each of the building while disposing of the writ petition, and therefore, on facts the authorities need to take a decision in the matter. Still later, pursuant to the common judgment dated 04.07.2017 in W.P.(C) Nos. 25876, 40747 & 16184 of 2016, the engineer of the Municipal Corporation, the Executive Engineer, Public Works Department (Buildings Division) along with other authorities, conducted inspection of the building during January, 2018 in the presence of the landlords and the tenants and has pointed out instability of the building remaining in dilapidated condition and the danger likely to be caused to the occupants. The Corporation Engineer and the PWD Executive Engineer have in separate reports cited that the building poses great risk to the general public, as there is no proper set back provided to the building since the same was constructed before the commencement of the Municipality Building Rules. Accordingly, an order dated 06.02.2018 was passed by the Secretary of the Municipal Corporation under Section 411 of Act, 1994. The said order was challenged before the Tribunal for the Local Self Government Institutions by the tenants of the buildings i.e., respondents 1 and 2 by filing Appeal No. 170/2018 and obtained an ex parte interim order staying demolition. However, later the appeal was dismissed as per order dated 30.10.2019. Thereupon, the Secretary of the Corporation issued a notice dated 11.08.2019 directing all the tenants to vacate the premises. However, no action was initiated thereafter, though the tenants have filed various complaints before the police, and has even approached this Court seeking direction for police protection. Anyhow, it appears that, later the tenants have withdrawn the said writ petition. Matters being so, the appellants seeking implementation of Annexure A4 notice, has filed W.P.(C) No. 26889 of 2019 before this Court and sought for a direction not to permit any person from entering into the buildings owned by the appellants. The said writ petition was disposed of as per Ext.P1 judgment dated 17.12.2019 directing the Secretary of the Corporation to hear the appellants as well as the tenants at the earliest and then decide on the further course of acti