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2026 Supreme(Online)(Ker) 9985
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J
KHADIJA BAI'S CHARITIES – Appellant
Versus
KOCHI MUNICIPAL CORPORATION – Respondent
WP(C) NO. 3201 OF 2024
For the Appellants/Petitioners: SRI.B.ASHOK SHENOY, SRI.P.S.GIREESH, SHRI.SALIH P.A., SHRI.ARJUN R NAIK, SMT.THEJALAKSHMI R.S., SHRI.UMASANKER U.U.
For the Respondents: SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL CORPORATION
The court holds that procedural requirements under the Kerala Municipality Act must be strictly adhered to before ordering demolition of unauthorized constructions.
Headnote:The Writ Petition challenges Ext.P20 notice issued by the Assistant Executive Engineer under the Kerala Municipality Act, 1994. The petitioner contends that such powers should be exercised by the Secretary, and argues the absence of a provisional order as required under Sections 406(1) and (2). The Court finds merit in the petitioner’s arguments, particularly regarding the lack of a requisite provisional order, leading to the quashing of Ext.P20. The court directs reconsideration in accordance with the law should any unauthorized construction be present.
| Table of Content |
|---|
| 1. context of writ petition filed against unauthorized construction. (Para 1 , 2) |
| 2. court observations on compliance with statutory mandates. (Para 3 , 6) |
| 3. arguments regarding administrative powers and procedural requirements. (Para 5) |
| 4. legal determination leading to set aside the notice. (Para 7) |
JUDGMENT
The above Writ Petition (C) is filed with the following prayers:
"(a) Dispense the production of English Translation of Malayalam Exhibits;
(b) Call for the records and files leading to Exhibit P20 issued by 2nd respondent and quash Exhibit P20, by issue of a writ in the nature of certiorari or any other appropriate writ, order or direction; and (c) Grant such other and further reliefs as are deemed just and necessary in the facts and circumstances of the case including costs of this proceedings as also the following: "
[SIC]
2. The petitioner being a Trust functioning under the provisions of the Trust Act 1882, filed this writ petition challenging Ext.P20 notice issued by the 2nd respondent, requiring them to demolish the unauthorised construction of their building constructed about 60 years back, and assess the property tax by the 1st respondent.
3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Corporation. 4. Two points are raised by the petitioner. The first point is that, an order under Section 406 of the Kerala Municipality Act, 1994 (for short ‘Act, 1994’), cannot be passed by the Assistant Executive Engineer of the Corporation, and only the Secretary can pass such an order. The second point is that, even if, it is assumed that the Assistant Executive Engineer has power, there is no provisional order passed under Sections 406 (1) and (2) before passing (3) of the Act, 1994.
5. The learned Standing Counsel appearing for the Corporation submitted that. a counter affidavit is filed by the Corporation. The Standing Counsel takes me through paragraph Nos.3, 4 and 6 of the counter affidavit filed by the 1st respondent and submitted that there is unauthorised construction. The Standing Counsel also submitted that, in paragraph No.6, it is stated that a provisional order has been issued on 19.12.2023. But, there is nothing to show that a hearing is conducted before passing the order. Therefore, I think one more opportunity can be given to the petitioner.
6. The Standing Counsel further submitted that, the Secretary can delegate the power under Section 406 of the Act, 1994. I do not want to make any observations about the same. I make it clear that, I have not considered the matter on merit.
7. A perusal of Ext.P20 would not show that a provisional order under Section 406 (1) and (2) of the Act, 1994, is issued and a hearing is conducted. I am setting aside Ext.P20 for the short reason that there is no provisional order before Ext.P20 and for the second ground raised by the petitioner, and also there can be a direction to the competent authority to reconsider the matter by the competent authority.
Therefore, this writ petition is disposed of with the following directions:
i) Ext.P20 is set aside.
ii) The competent authority among the respondents will reconsider the matter and proceed in accordance with section 406 of the act, 1994, it there is any unauthorised construction.
Sd/-
