Point of Law: Section 406 of Kerala Municipality Act reads as Demolition or alteration of building work unlawfully commenced, carried on or completed.

JUDGMENT :

The petitioner is the owner of 3.25 cents of property and residential building therein in Survey No.906/1 of Fort Kochi Village. The 5th respondent is the owner of the adjacent property on the northern side of the petitioner's property. According to the petitioner, he constructed a single storied building in the year 2002 after obtaining building permit and the building was assigned a number by the Corporation as 11/359A. Later, the petitioner constructed two rooms in the ground floor without obtaining approved plan. The 5thpetitioner states that, at the instance of the respondent, who was working as Health Inspector in Corporation of Cochin, the Secretary of the Corporation initiated proceedings against him under Section 406(1) of the Kerala Municipality Act, 1994 (for short, 'the Act') for carrying out the aforesaid construction and issued provisional order under Section 406(2). Meanwhile, the petitioner submitted Ext.P18 application for 1st regularisation of the construction. However, the respondent, without considering the application for regularisation, issued Ext.P19 order under section 406(3) of the Act requiring the petitioner to demolish the construction.

2. Ext.P19 was challenged before this Court in W.P.(C)No.27458/2018 and this Court, by Ext.P20 judgment, disposed of the writ petition directing the Secretary of the Corporation to consider Ext.P18 application for regularisation within three months and thereafter to consider the issue pertaining to notice issued under Section 406(1) and (2) of the Act in accordance with law, taking into account the objections, if any, submitted by the petitioner and also the directives issued by the Tribunal for Local Self Government Institutions (the Tribunal, for short) in the previous rounds of litigation and after providing opportunity of hearing to the petitioner and the 5th respondent.

3. Ext.P20 judgment was challenged before this 5thCourt in W.A. No.2223/2018 by the respondent. During the pendency of the writ appeal, the Corporation issued notice to proceed with the demolition order and the petitioner preferred Contempt Case (c) No. 2330/2018 which was closed by Ext. P22 judgment by accepting the affidavit of the Secretary tendering apology. The Division Bench, by Ext.P21 judgment disposed of the writ appeal, directing the Corporation to pass fresh orders in lieu of Ext.P19 after hearing the parties pursuant to the notice under Section 406(1). By 5thExt.P23 order in R.P. No.248/2019 filed by the respondent, the Division Bench clarified Ext.P21 judgment observing that the Court has not expressed any opinion as to whether there was any unauthorised construction or not.

4. Pursuant to the directions of this Court, the petitioner and the 5th respondent were called for hearing by the Additional Secretary of the Corporation on 14.3.2019. The petitioner states that the hearing was then adjourned for survey measurement. However, the 1st respondent on 18.05.2019 passed Ext.P25 order under section 406(3) of the Act confirming the provisional order and directing the petitioner to demolish the construction.

5. The petitioner challenged Ext.P25 order in appeal before the Tribunal contending, inter alia, that the said order is passed without considering the objection submitted by the petitioner to the provisional order and without hearing him. It was also contended that without ascertaining the boundary in between the property of the petitioner and the 5th respondent, the dispute as to set back cannot be decided by the Secretary and that Ext. P25 is a cryptic and non-speaking order. The Tribunal passed Ext.P27 order dismissing the appeal preferred by the petitioner. The Tribunal held that the file produced by the Secretary of the Corporation shows that the Secretary issued notice for hearing to both sides and the documents and objections were perused and thus the order of this Court was complied with. It was also observed that all statutory formalities were complied with while issuin