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2020 Supreme(Online)(KER) 28352
HIGH COURT OF KERALA
ALEXANDER THOMAS, J
K.N.ABDUL GAFOOR – Appellant
Versus
CORPORATION OF KOCHI – Respondent
WP(C)/17239/2020
SRI.JOHN MATHEW (THEREZHATH)
Municipal authorities must ensure procedural fairness when issuing demolition orders and considering regularization applications.
Headnote:
Municipality - Writ Petition - Kerala Municipality Act - Sections 406, 409 - The court examined the legality of a demolition order and the implications of the construction regularization process, emphasizing due process in municipal decisions.
Fact of the Case:
The petitioner challenged a demolition order under the Kerala Municipality Act, alleging non-compliance with due process rights, and sought regularization for constructions via an application submitted to the municipal authority.
Finding of the Court:
The court directed the municipal authority to inspect the construction in question, ensuring the petitioner had a fair hearing on their regularization application, thus balancing authority and individual rights.
Issues: Whether the demolition order was valid and if the petitioner was afforded due process in filing for regularization of the constructions.
Ratio Decidendi: The court highlighted the necessity for municipal authorities to adhere to procedural fairness when making determinations affecting individual rights.
Final Decision: The writ petition was disposed of with directions to the municipal authority to consider the regularization application.
JUDGMENT
The prayers in the above Writ Petition (Civil) are as follows :
“i. Set aside the Ext.P4 impugned order in the light that the subject matter constructions in question viz; the shed and toilet are exempted under the relevant provisions of Section 409 of the Kerala Municipality Act , 1994 and that the impugned order was passed in the absence of the petitioner without affording him an opportunity of being heard.
ii. Direct the 2nd respondent to consider the Ext.P4 application to regularize the impugned constructions in question under proviso to clause (1) of Section 406 of the Kerala Municipality Act , 1994 read with Rule 143 of the Kerala Municipality Building Rules, 1999 and also interdict the 2nd respondent from taking any coercive measures under Ext.P4 impugned order for the time being till the final disposal of the Ext.P5 application in the interest of justice.
iii. Issue such other orders, writ or directions as this Hon'ble court may deem just, fit and necessary in the interest of justice.”
2. Heard SriJohn Mathew Therezhath, learned counsel appearing for the petitioner and Sri.S.Sudheesh Kumar, learned Standing Counsel for Kochi Municipal Corporation appearing for the respondents.
3. The case of the petitioner is that being aggrieved by Ext.P-4 demolition order dated 14.05.2020, the petitioner has preferred Ext.P-5 application dated 06.07.2020 for regularization of the construction in question before the 2nd respondent-Secretary of the Municipal Corporation under the enabling provisions contained in the Proviso to Sec.406(1) of the Kerala Municipality Act , 1994 read with Rule 143 of the Kerala Municipal Rules, 1999, etc.
4. Taking note of the facts and circumstances of this case, it is ordered in the interest of justice that the 2nd respondent-Secretary of the Kochi Municipal Corporation will take up the matters raised in Ext.P-5 application for regularization dated 06.07.2020 and may ensure the conduct of inspection by the Municipal Engineer with due prior notice to the petitioner, as to the nature of the constructions and as to the nature of the violations of the Building Rules and whether such violations could be the subject matter of regularization, etc. The process of inspection should be duly completed within three weeks and copy of the inspection report should be given to the petitioner in advance. Thereafter, the 2nd respondent-Secretary of the Municipal Corporation will afford reasonable opportunity of being heard to the petitioner and then should take a considered decision, so as to pass orders on Ext.P-5 application for regularization, in terms of the applicable Rules and norms, without much delay, preferably within a period of four weeks from the date of receipt of the inspection report of the Municipal Engineer. Until orders are passed by the 2nd respondent or any authorized officer delegated to exercise the powers of the Secretary of the Municipal Corporation on Ext.P-5 application, further coercive steps in pursuance of the impugned Ext.P-4 demolition order shall be kept in abeyance by the respondents.
5. The petitioner will produce a certified copy of this judgment along with the Memorandum of this W.P(C) with all the exhibits before the 2nd respondent-Secretary of the Municipal Corporation, for necessary information and further action.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SALE DEED NO 3165 OF
2008 OF ERNAKULAM SRO EXHIBIT P2 THE TRUE COPY OF THE ORDER BEARING NO ISO/MOP1/4118/2019 DATED 6.11.2019 ISSUED UNDER SECTION 406 (1) OF THE KERALA MUNICIPALITY ACT 1994 EXHIBIT P3 THE TRUE COPY OF THE REPLY STATEMENT DATED
12.12.2019 FILED BY THE PETITIONER TO THE 2ND RESPONDENT ALONG WITH ITS RELEVANT ACKNOWLEDGEMENT EXHIBIT P4 THE TRUE COPY OF THE ORDER BEARING NO ISO/MOPI/4118/2019 DATED 14.5.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIB
