Due process must be followed before enforcement actions concerning property rights, especially under the Kerala Municipality Act.

JUDGMENT

W.P.(C)No.12560 of 2020 The petitioner has approached this Court challenging Ext.P2 and seeking for other consequential directions.

2. The petitioner is the owner in possession of 1.10 ares of property with a building therein in Kudappanakunnu Village, Thiruvananthapuram District. On the western side of the said building, abutting the main road, there is public drainage which is maintained by the 1^st respondent. Within the property of the petitioner on the northern side, there is a drain connecting to the public drain which is 1 feet in width and connects to the properties behind the petitioner's building. The property of the 2^nd respondent lies farther north of the petitioner's building. While so, the 2^nd respondent made a complaint before the 1^st respondent citing unauthorised construction by the petitioner and requesting the said authority to take appropriate action. Thereupon, Ext.P1 notice was issued, directing the petitioner to remove the encroachments.

Challenging the same an appeal was preferred before the Tribunal as Appeal No.552/2016. In the said appeal it is specifically contended that no provisional order was issued and is without hearing the petitioner that Ext.P1 order was issued. Without considering any of the contentions raised by the petitioner, the appeal was dismissed as per Ext.P2. The specific contention of the petitioner is that the drain by the side of the property of the petitioner is not a public drain and the respondent Corporation has no right over the same. To the request made under the Right to Information Act, Ext.P16 reply was given by the respondent Corporation stating that there is no document to prove that the said drain belongs to the Corporation or the PWD. The request made before the Village Officer in this regard was replied as per Ext.P18 stating that there is no drain at all as per the Field Measurement Book. On the basis of the same, the petitioner would contend that it is not a public drain and therefore, Ext.P1 order was issued absolutely without any basis.

3. Though a statement has been filed by the 1^st respondent Corporation, there is absolutely no mention regarding the ownership or right over the drain by the respondent Corporation. It is contended that Ext.P1 is only a show cause notice and that a provisional notice was thereafter issued to the petitioner. It is also submitted that based on the complaint filed by the 2^nd respondent that action was taken by the respondent Corporation and after finding that there is illegal encroachment, Ext.P1 was issued and there is no ground to interfere with the same.

4. I have heard the rival contentions on both sides.

5. The specific contention raised by the petitioner before the Tribunal is that without following the procedures as contemplated under Section 406 (1)(2) of the Kerala Municipality Act , regarding the issuance of a provisional notice etc., Ext.P1 has been issued. But the said contention was not taken into consideration at all by the Tribunal while issuing Ext.P2. The petitioner has raised a specific contention that the subject drain is not part of the respondent Corporation or the PWD and it is the property of the petitioner. Though a statement has been filed by the respondent Corporation, there is no answer to that effect.

6. Taking into consideration the above facts and circumstances of the case, I am inclined to dispose of the writ petition as follows:

1. Exts.P1 and P2 are set aside.

2. If the respondent Corporation proposes to take further action, an enquiry shall be conducted by them regarding the ownership and possession of the subject drain, with notice to the petitioner and the 2^nd respondent and only on being satisfied about the same that further notice shall be issued to the petitioner.

3. If any notice is issued, the same shall be strictly in accordance with the Ac