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Final order under Section 406(3) cannot be issued solely on engineer's report without calling for objections; provisional under 406(1) may rely on report, but 406(2) mandates hearing before confirmation. Non-compliance violates natural justice, leading to quashing. Power vests exclusively with Secretary, not engineer. ["SAJEEVAN @ RAJEEVAN Vs THE SECRETARY - Kerala"] ["Elizabeth Thomas @ Laila Thomas, W/o. Mathai Thomas VS Thiruvalla Municipality, Represented By Its Secretary - 2023 0 Supreme(Ker) 804"] ["SIVAPRASAD K.G. Vs THE COCHIN CORPORATION - Kerala"] ["Venkitachalam Iyer, S/o. Subrhamanya Iyer VS State of Kerala, Represented by its Secretary to the Department of Local Self Government Institutions, Government Secretariat - Kerala"] ["VIDYA VIJAYAN vs THRIKKAKARA MUNICIPALITY - Kerala"]
In the realm of urban development and property rights in Kerala, unauthorized constructions are a common issue. Property owners often face demolition threats from municipal authorities. A frequent question arises: Can an order under Section 406 of the Kerala Municipality Act be issued solely on the report of the engineer and without calling for objections on the report?
This blog post delves into the legal intricacies, drawing from judicial precedents and statutory provisions. We'll explore why skipping objections typically invalidates such orders, emphasizing procedural fairness and natural justice. Note: This is general information based on case law and statutes; consult a legal professional for advice specific to your situation.
Section 406 addresses unauthorized buildings or works that violate building rules. It empowers the Municipal Secretary to act against deviations, but only through a structured process. The provision outlines a three-stage mechanism:
Courts have repeatedly stressed that this sequence is mandatory. Relying solely on an engineer's report without affording the owner a chance to object violates principles of natural justice. Kumari Mohanam K. P. VS Corporation Of Thiruvananthapuram - 2019 0 Supreme(Ker) 527
No, an order under Section 406 cannot be issued solely on the engineer's report without calling for objections. The statute demands procedural compliance. Bypassing the show-cause notice renders the order invalid and liable to be quashed by courts or tribunals. Subaida Abdul Rasheed VS State of Kerala - 2015 0 Supreme(Ker) 1240
Key reasons include:- Statutory Mandate: The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner ... together with a notice requiring him to show cause within a reasonable time... Kumari Mohanam K. P. VS Corporation Of Thiruvananthapuram - 2019 0 Supreme(Ker) 527- Natural Justice: Owners must get a hearing. Orders issued behind petitioners' backs based on reports are set aside. Elizabeth Thomas @ Laila Thomas, W/o. Mathai Thomas VS Thiruvalla Municipality, Represented By Its Secretary - 2023 0 Supreme(Ker) 804- Judicial Precedents: In one case, a demolition order (Ext.P8) was quashed because no provisional order or show-cause notice was issued before confirmation. The Tribunal noted: there are no materials on record to substantiate the fact that any provisional order together with show-cause notice ... was issued ... before issuing Ext.P8 order of demolition. Kumari Mohanam K. P. VS Corporation Of Thiruvananthapuram - 2019 0 Supreme(Ker) 527
Another ruling directed fresh proceedings: the impugned order is not sustainable and is liable to be set aside with direction to the 1st Respondent to initiate fresh proper proceedings ... The procedure under Section 406 ... are to be initiated... Subaida Abdul Rasheed VS State of Kerala - 2015 0 Supreme(Ker) 1240
Kerala's High Court and tribunals consistently enforce this. For instance:
Even post-inspection (e.g., engineer's report), a provisional order under Section 406(1) was issued, but escalation required compliance or objections: Accordingly a provisional order is passed under Section 406(1) ... to demolish the unauthorised construction immediately ... in case this provisional order is not complied with, action will be initiated under Sub Sections 3 and 4... Kanakam, D/o. C. K. Kurup VS Kozhikode Corporation Represented By Secretary - 2020 0 Supreme(Ker) 111
Demolition without notice is deemed illegal: Admittedly, before demolishing the structure ... none of these statutory provisions were complied with... Subaida Abdul Rasheed VS State of Kerala - 2015 0 Supreme(Ker) 1240
Provisions allow regularization via compounding fees, but only after following procedure:
Note: Even government directions under Section 406(5) don't bypass steps. If land vests in municipality, Section 376 may apply, but notice is still required. Subaida Abdul Rasheed VS State of Kerala - 2015 0 Supreme(Ker) 1240
No blanket exceptions exist. Engineer reports can inform satisfaction but not replace due process. Pending revisions (e.g., land assignment) don't override safeguards. Courts often grant three months for fresh proceedings. Elizabeth Thomas @ Laila Thomas, W/o. Mathai Thomas VS Thiruvalla Municipality, Represented By Its Secretary - 2023 0 Supreme(Ker) 804
In unrelated contexts, like rent control, Section 406 proceedings aren't conclusive proof alone. Ammeer Hamsa VS Ramabhadran - 2019 Supreme(Ker) 267
In summary, while engineer's reports are valuable evidence, Section 406 demands a fair hearing. Authorities ignoring this risk judicial intervention, upholding statutory safeguards.
Disclaimer: This post summarizes case law and provisions as of available records. Laws evolve; it is not legal advice. Contact a Kerala-based lawyer for your case.
Jurisdiction - Ombudsman - Kerala Municipality Act Section 406 - The act recognizes the authority of the Secretary in cases of ... Ratio Decidendi: The judgment established that the Secretary of the Municipality, per Section 406, has the authority to issue ... 406 of the Kerala Municipality Act. ... However, Section 406 of the Kerala Municipality Act provides that, if the Secretary is satisfied that any building o....
COMMON ISSUES - Writ Petitions - Kerala Municipality Act, 1994 (Section 406), Kerala Municipality Building Rules, 1999 (Rule 18) ... The court analyzed the powers of the Secretary of the Municipality under Section 406(3) to issue orders for demolition or alteration ... It directed further proceedings to be conducted within three months following specific procedures outlined in Section 406 of the ... Section 509 as it stood prior to the Kerala Municipality#HL....
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. ... Direct the 2nd 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 B....
Apparently Ext.P15 order, is an order issued as per Section 406(3) of the Kerala Municipality Act, 1994. 2. ... From Ext.P11 it is clear that, in accordance with the provisions of Section 406, the illegal construction is clearly pointed out and stated that petitioner has carried out a construction in front of the building in violation of Rule 24(3) of the Kerala Municipality Buil....
Exts.P4 and P9 that the Municipality has no such case and that they have initiated action under Section 406 of the Kerala Municipality Act solely for the ... This stand of the Municipality certainly does not appeal to this Court, since, as is clear from Section 406 of the Kerala Municipality Act, it is only where ... of Section#H....
Jurisdiction - Writ Petition - Kerala Municipality Act - Section 406 - The court emphasized that demolition authority lies with ... 406 of the Kerala Municipality Act, 1994, and lacked due process. ... 406 must be taken by the Secretary of the Municipality with due process. ... Moreover, he was not served with any show cause notice as provided under section 406(2) of the Kerala Municipality Act, 1994. Hence, this Writ Petition.” .......
Without supplying the copy of the complaint and documents sought for in Exhibit P4, the Municipality has issued Exhibit P5 provisional order and Exhibit P5(a) show cause notice under section 406(1) of the Municipality Act directing to show cause as to why the order should not be confirmed. ... the construction of the compound wall as is provided under 2nd proviso to Section 406(1)(iii) of the #HL_....
UNDER PROVISO TO SECTION 406 (1) OF THE KERALA MUNICIPALITY ACT, 1994 R/W RULE 143 OF THE KMBR, 1999 ALONG WITH THE COMPLAINT FILED ON 06.07.2020. ... 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. ... BEARING NO ISO/MOP1/4118/2019 DATED 6.11.2019 ISSUED UNDER SECTION....
Municipality - Construction - Kerala Municipality Act - Section 406(1)(iii) - The court emphasized that an application for regularization ... Without supplying the copy of the complaint and documents sought for in Exhibit P4, the Municipality has issued Exhibit P5 provisional order and Exhibit P5(a) show cause notice under section 406(1) of the Municipality Act directing to show cause as to why the order#....
Demolition - Local Self Government - Kerala Municipality Act - Section 406(3) - The court analyzed the directive of the Tribunal ... of the Tribunal for Local Self Government Institutions, Thiruvananthapuram to the extent it directs the Secretary to the first respondent Municipality to see that the confirmation order already issued under Section 406(3) of Kerala Municipality Act and which has become final is execut....
The same is an order under Section 406(3) of the Kerala Municipality Act. The impunged order states that the appellant has violated Rules 25(1), 24(4), 24(5) and 26 of the Kerala Municipality Building Rules and therefore, those part of the constructions in violation of the Building Rules will have to be demolished. 7. No doubt, the appellant has been granted permission to construct a three storied building.
Accordingly, one Sri. Anees Mohammed H., who is a qualified Structural Engineer having post graduate degree of M.Tech and who is a licenced 'A-Grade Engineer' having registration with the Department of Urban Affairs of the State Government, submitted a report regarding the structural stability of the building, based on the inspection conducted. Such inspection was directed to be conducted in the presence of the representatives of the university. 5. During pendency of the above writ petitions, WP (C) No.23782/2019 & 23783/2019, learned Single Judge on 02-09-2019 passed an order dire....
No doubt, it can be used as a corroborative evidence to support other evidence adduced by the landlord. The usage of the building in a manner so as to destroy or reduce the value or utility of the building is not a fact in issue to be enquired into under Section 406(1) and 406(2) of the Kerala Municipality Act. In the above analysis, we find that the proceedings under Section 406(1) and (2) of the Kerala Municipality Act can never be a conclusive proof of the usage of the building in a manner destroying or reducing the value or utility of the building, materially and permanently, as provided....
By Ext. P25 order, the Tribunal set aside Ext. P7 holding thus: 5. In the mean while, appellants challenged Ext. P7 order issued under section 406(3) of the Kerala Municipality Act in an appeal filed before the Tribunal for Local Self Government Institutions.
It was found that there was no proper notice issued under Section 406(2) of the Municipality Act calling for objections. On the above grounds, the said provisional order, produced herein at Exhibit P10, was found to be unsustainable. As to the stop memo issued, again it was noticed that there were no grounds stated in the said stop memo to bring it under Section 408 of the Municipality Act. The Tribunal, by Exhibit P14 order, found that the provision order issued under Section 406(1) of the Municipality Act does not show the grounds under which the appellant has been direct....
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