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2022 Supreme(Online)(KER) 22533
HIGH COURT OF KERALA
N. NAGARESH, J
INDRA KUMAR – Appellant
Versus
THE SECRETARY TO THE GOVERNMENT – Respondent
WP(C)/23308/2022
T.V.GEORGE, SRI.SYAMANTHAK B S, GP
The ruling establishes that individuals with disabilities are entitled to consideration in enforcement actions that affect their livelihood, particularly when an alternative legal remedy exists.
Headnote:
Disability - Physical Handicap - Kerala Municipality Act - Sections 20, 406(2) - The court recognized the rights of physically challenged individuals in seeking relief from municipal orders affecting their livelihood, allowing a one-month period to appeal against an enforcement order.
Fact of the Case:
The petitioner, a physically challenged individual, constructed a small room for his lottery business on land he purchased. Despite paying taxes and obtaining a building number, the municipality issued an order for removal of what they deemed an illegal construction without considering his circumstances.
Finding of the Court:
The court found that the petitioner had a right to appeal to the competent Tribunal and noted the need for special consideration due to his physical handicap. It decided to allow the petitioner time to approach the Tribunal without enforcement of the removal order during this period.
Issues: Whether the petitioner can contest the municipality's order invoking provisions of the Kerala Municipality Act and if he should be granted time to appeal based on his physical disability.
Ratio Decidendi: The court emphasized the importance of alternative remedies available to the petitioner while also acknowledging his special circumstances as a physically challenged person deserving of consideration.
Final Decision: The petition was disposed of, allowing the petitioner one month to appeal the removal order.
J U D G M E N T
Dated this the 22nd day of July, 2022 The petitioner states that he is a physically challenged person and eaks out his livelihood by selling lottery tickets. The petitioner purchased 3 square metres of land and constructed a small room for doing his lottery business. 2. The building was given UA building number and building tax was accepted. The petitioner states that now the respondents have issued Ext.P5 preliminary order invoking Sections 20 and 406(2) of the Kerala Municipality Act , 1994. The petitioner submitted Ext.P7 reply. In Ext.P7, the petitioner requested the respondents to permit him to pay tax in respect of the building and continue to do business, as he is a physically handicapped person. The respondents, without considering the request of the petitioner, issued Ext.P8 final order directing to remove the illegal construction.
3. The petitioner states that he is a physically handicapped person. He constructed the building and applied for regularisation of the building. The respondents assigned UA number to the building and have been accepting building tax promptly. In such circumstances, the respondent-Municipality can very well regularise the construction. The construction is to be regularised taking into consideration of the fact that the petitioner is a physically handicapped person and lottery business is the only source of his income.
4. The Standing Counsel entered appearance on behalf of respondents 2 and 3. The Standing Counsel denied all the allegations made by the petitioner in the writ petition.
5. The Standing Counsel pointed out that Ext.P8 is an appealable order. Since the petitioner has an efficacious alternative remedy, this Court should not entertain the writ petition under Article 226 of the Constitution of India.
6. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.
7. Since the petitioner has an efficacious alternative remedy, this Court is of the view that the petitioner has to approach the competent Tribunal for relief against Ext.P8. Taking into consideration the fact that the petitioner is a physically handicapped person, this Court is of the view that a breathing time should be granted to the petitioner to approach the competent Tribunal.
In the circumstances, the writ petition is disposed of permitting the petitioner to approach the competent Tribunal against Ext.P8, if he is so advised, within a period of one month. To enable the petitioner to approach the Tribunal, there will be a direction to the respondents not to enforce Ext.P8 for a period of one month from today.
Sd/-
N. NAGARESH, JUDGE smm/23.07.2022 APPENDIX OF WP(C) 23308/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 15/11/2000 ISSUED BY THE MEDICAL BOARD.
Exhibit P2 TRUE COPY OF THE NOTICE DATED 28/12/21 ISSUED BY THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE NOTICE DATED 22/1/'22 ISSUED BY THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF PROPERTY TAX PAID RECEIPT DATED 1/2/′22 .
Exhibit P5 TRUE COPY OF NOTICE DATED 31/03/22 ISSUED BY THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF PRELIMINARY ORDER DATED
31/03/22 ISSUED BY THE 3RD RESPONDENT.
Exhibit P7 TRUE COPY OF REPLY DATED 12/4/22 FILED BY THE PETITIONER.
Exhibit P8 TRUE COPY OF FINAL ORDER DATED 4/07/22 ISSUED BY THE 3RD RESPONDENT.
Exhibit P9 TRUE COPY OF TAX PAID RECEIPT DATED JUNE, 2022.
