IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942 WP(C).No.17239 OF 2020(D)

PETITIONER:

K.N.ABDUL GAFOOR AGED 54 YEARS S/O C.K.KASMI, THE DIRECTOR, M/S KASMISONS BUILDERS PVT LTD, #37/2127, RANGOON, KATHRIKADAVU, KOCHI-17 BY ADV. SRI.JOHN MATHEW (THEREZHATH)

RESPONDENTS:

1 CORPORATION OF KOCHI REPRESENTED BY THE SECRETARY, CORPORATION OFFICE, PARK AVENUE, KOCHI-682 011.

2 THE SECRETARY, CORPORATION OF KOCHI, CORPORATION OFFICE, PARK AVENUE, KOCHI-682 011. 3 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

SRI.K.J.MANU RAJ, GOVT.PLEADER, SRI.S.SUDHEESH KUMAR, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ALEXANDER THOMAS, J.

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W.P(C) No.17239 of 2020 =============================

Dated this the 26^th day of August, 2020

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 2^nd 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 2^nd 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 2^nd 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 2^nd 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 2^nd 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 2^nd respondent or any authorized officer delegated to exercise the powers of the Secretary of the Municipal Corporation on Ext.P-5 application, further coerc