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 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.

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 sh