Disposed

A.M.Raveendran, v. Thalassery Municipality

Kerala HC4 Mar 2020WA/407/2020

Case brief

AI extract

What is this about?

The High Court held that a notice under Section 411 of the Kerala Municipality Act was erroneous for lacking justification of ruinous/dangerous structure. The court directed the municipality to process provisional orders under Section 406 after hearing, refusing to restore the gate.

What did the court decide?

Appellant given two weeks to reply to provisional orders; Mukicipalcy directed to pass orders on Exts.P6 and P7 after hearing; no direction to restore gate.

A.M.Raveendran, Vs Thalassery Municipality — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR.JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941

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W.A.No.407 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 3119/2020(L) OF HIGH COURT OF KERALA DATED 5.2.2020

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APPELLANT/PETITIONER:

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A.M.RAVEENDRAN, AGED 69 YEARS S/O.MANNAN (LATE), PEARL MANSION, VENUS CORNER, KODUVALLY, THALASSERY, KANNUR DISTRICT - 670 101.

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BY ADV. SRI.C.P.MOHAMMED NIAS

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RESPONDENTS/RESPONDENTS:

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1 THALASSERY MUNICIPALITY, M.G.ROAD, PALISSERY, THALASSERY - 670 101, REPRESENTED BY ITS SECRETARY.

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2 SRI.C.BIJU, OVERSEER, THALASSERY MUNICIPALITY, M.G.ROAD, PALISSERY, THALASSERY - 670 101.

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SRI.I.V.PRAMOD, SC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

Dated this the 4th day of March 2020

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S.MANIKUMAR, C.J.

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Instant writ appeal is filed challenging the judgment in W.P.(C)No.3119 of 2020 dated 5^th February 2020 by which, the writ court after considering Sections 406(1) and 411 of the Kerala Municipality Act, 1994 dismissed the writ petition.

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Short facts leading to the filing of the writ appeal are that the appellant/writ petitioner, A.M.Ravindran is the sole owner of a shopping complex in resurvey No.171/1A, Venus Corner, Koduvally, Thalassery having 28 rooms bearing building Nos.50/725 to 50/752. The said building was in the joint ownership of appellant/writ petitioner and his brother (A.M.Divakaran), until A.M.Divakaran had executed a release deed dated 16.11.2018, in favour of the petitioner/appellant. Various rooms in the shopping complex have been let on lease to various tenants who are running different businesses. The aforementioned construction of the shopping complex was done 22 years ago. According to the appellant, no complaints of any violations of conditions of the building permit or the Kerala Municipality Act or Rules framed thereunder were raised so far. However, on 26.12.1999, the first respondent/Thalassery Municipality affixed Ext.P1 notice, issued under Section 411 of the Kerala

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Municipality Act, 1994 on the outer wall of the shopping complex, on the basis of a complaint from BRD Security Ltd. and the President of Thalassery Co-operative Rural Bank. Ext.P1 notice contains three instances alleging unauthorized constructions in the building demanding that the same be removed within 24 hours of receipt of the notice. The violations alleged in Ext.P1 are to the effect that (1) the entrance of inner courtyard parking of the building has permanently closed blocking the vehicle movements (2) the unauthorized construction of rooms conducted in the first floor of the building has blocked the way leading to the fire escape staircase and (3) the fire escape staircase is found to be closed

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with Grill, so as to becoming a no escape situation during a fire disaster.

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Ext.P6 is yet another notice dated 7.1.2020 issued under Section 406(1)

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of the Kerala Municipality Act, 1994 and the same is extracted hereunder:

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“File No.E3/34069/19 Municipal Council Office, Thalassery. Date:07-01-2020

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Kerala Municipality's Act 1994 (Act 20 of 1994) 406(1) Provisional Order covering the Act

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Contrary to Kerala Municipality's Act and conditions of the relevant norms Sri.A.M.Raveendran, Thalassery Municipality ….....in Ward …........ survey properties'. It has been reported that the under-mentioned constructions are being conducted by him.

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Description of Construction:

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(1) Having been conducted unauthorized construction of rooms on the First Floor of the Building Pearlview Plaza, Venus Junction, Thalassery Municipality, the access to the Fire Escape Stair case has been blocked. Therefore, unauthorized construction needs to be demolished.

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(2) Fire Escaping Stair-case that closed with Grill has to be removed.

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In terms of the Kerala Municipality Act 406(1), it has been ordered that the aforesaid unauthorized construction has to be demolished within 15 days after receiving the said order.

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Secretary Thalassery Municipal Council Sd/-

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Affixed:

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Municipal Office, Thalassery Round Stamp”

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Ext.P1 is the notice dated 26.12.2019 issued by the first

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respondent/Thalassery Municipality to the writ petitioner under Section 411 of

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the Kerala Municipality Act, 1994, which reads as under:

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“E3.34069/19

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Thalassery Municipal Council, Dated 26.12.2019

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Notice

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(As per Kerala Municipality Act 411)

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Subject: Demolition of unauthorized construction conducted in Pearlview Plaza Building at Venus Junction, without obtaining permission from Planning Section of Thalassery Municipal Council - Reg.

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Ref:(1) Complaint from BRD Security Limited Thalassery Branch.

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(2) Complaint from the President of Thalassery Co-operative Rural Bank.

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(3) Municipal Council Overseer's Report.

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The Municipal Council Overseer has reported (as per Ref.(3) above) that the under-mentioned unauthorized constructions are conducted in Pearlview Plaza Building at Venus Junction of Thalassery Municipality:1. The entrance of Inner Courtyard Parking of the building, has permanently closed, blocking the vehicle movements.

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The unauthorized construction of rooms conducted on the first floor of the building, has blocked the way leading to the Fire Escape Stair-case.

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The Fire Escape Stair-case is found to be closed with Grill, so as to becoming a no escape situation during a Fire disaster.

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The above mentioned unauthorized constructions must be demolished within 24 hrs. on accepting this notice, failing which the said demolition will be carried out by the concerned department of Municipal council, recovering from you the entire expenses for the same.

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Ext.P6 notice was followed by another notice dated 7.1.2020, which is

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marked as Ext.P7 and the same reads as under:

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“Thalassery Municipal Council

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“File No.E3/34069/19 Municipal Council Office, Thalassery. Date:07-01-2020

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Kerala Municipality's Act 1994 (Act 20 of 1994) 406(2) Notice covering the Act

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A provisional order in compliance with the Kerala Municipality's Act 406(1) is sent herewith. It is proposed that in case there is any reason for not confirming the respective order, the same may be communicated in writing within 7 days on receiving the order. Non-compliance of such measures would deem to be non-submission of anything against the order, which would pave the way for further action on it.

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Secretary/Engineer Sd/- Assistant Engineer, Local Self Government Department Thalassery Muicipality (Kodiyeri Section)

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Affixed:

Municipal Office, Thalassery” Round Stamp”

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Being aggrieved by the above said notices, Writ Petition No.3119 of

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2020 has been filed with the following prayers:

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“(i) declare that the invocation of Section 411 of the Kerala Municipality Act to issue Ext.P1 notice by the 1^st respondent and the subsequent high-handed actions on 1.1.2020 led by the 2^nd respondent to remove the gate at the entrance of the inner courtyard of the petitioner's shopping complex are wholly without jurisdiction, ultra vires the Kerala Municipality Act, an abuse of power and violative of the principles of natural justice and to issue a writ of certiorari, or any other appropriate writ, order or direction, quashing Ext.P1 notice and the consequential Ext.P5 demand notice issued by the respondent;

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(ii) issue a writ of certiorari, or any other appropriate writ, order or direction, quashing Ext.P6 provisional order issued by the 1^st respondent and Ext.P7 show cause notice issued by the 1^st respondent;

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(iii) issue a writ of certiorari, or any other appropriate writ, order or direction, quashing Ext.P6 provisional order issued by the 1^st respondent and Ext.P7 showcause notice issued by the 1^st respondent.

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(iv) issue a writ of mandamus, or any other appropriate writ, order or direction commanding the respondent to restore the gate at the entrance of inner courtyard of the Pearl View Plaza Shopping Complex (owned by the petitioner) removed on 1.1.2020 by officials of the respondent at the cost and expense of the 1^st respondent or in the alternative, grant compensation to the petitioner to the tune of Rupees one lakh for putting up a new gate in place of the one removed on 1.1.2020.

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(v) issue a writ of mandamus, or any other appropriate writ, order or direction commanding the respondent to grant rupees one lakh or such other amount as compensation to the petitioner for the illegal act of removal of the gate at the entrance of the inner courtyard of the Pearl View Plaza shopping Complex (owned by the petitioner) by the officials of the respondent on 1.1.2020.”

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Adverting to the pleadings, submissions and after considering the statutory provisions, writ court, at paragraphs 3 and 4 ordered thus:

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“3. Heard the counsel for both sides and perused the paper book and other material documents. There is no force or merit in the submission. Section 411 of Kerala Municipality Act reads as under:- “Precautions in case of dangerous structures –

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(1) Where any structure is deemed by the Secretary to be in a ruinous state and dangerous to the passers-by or to the occupiers of neighbouring structures, the Secretary may by

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notice require the owner or occupier of such structure to fence off, take down, secure, demolish or repair the same so Wpc 3119/20 6 as to prevent any danger therefrom.

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(2) Where immediate action is necessary, the Secretary shall, before giving such notice or before the period of such notice expires, cause to fence off, take down, secure, demolish or repair such structures, or fence off a part of any street or take such temporary measures as he deems fit to prevent danger, and the cost thereof shall be recoverable from the owner or occupier in the manner provided in section 538.

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(3) Where in the opinion of the Secretary the said structure is imminently dangerous to the inmates thereof, the Secretary shall order the immediate evacuation thereof, and any person disobeying the order may cause to be removed if necessary, with the assistance by a police officer”.

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On a plain and simple reading of sub-clause 2 of Section 411, the Secretary of the Municipality is empowered to remove construction of the fence before the expiry of the notice.

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Precisely, this is what has been done in the instant case. There cannot be any iota of flouting of the statutory provisions of the Act. During the course of arguments, it was contended that the contents of the notice did not only confine to removal of stair case, but other unauthorised constructions, which is Wpc 3119/20 7 again referred to in Ext.P6 notice under Section 406. I am afraid,

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the writ petition is bereft of the particulars as to whether Ext.P6 has been replied to, within the time referred to therein. Be that as it may, no such material has been produced to prima facie prove that. The bills, labour charges etc or any reflection in the income tax returns are wanting. Considering all these facts, I am of the view that the impugned action of the Municipality in removing the grills pertaining to action under Section 406(1) comes within the statutory provisions of the Act. I do not find any illegality or perversity in the above action. No such grounds are made out by the petitioner to substantiate his contentions.

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The writ petition is accordingly dismissed.”

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Being aggrieved instant writ appeal is filed. Learned counsel for the appellant contended that learned Single Judge failed to appreciate that no jurisdictional facts existed for invocation of Section 411 of the Act in the instant case, and also failed to consider the appellant's argument that Section 411 could not have been invoked by the first respondent at all, because the gate at the inner courtyard, which has existed for years, posed no danger to anybody so as to warrant immediate removal without even giving the petitioner/appellant time to reply to Ext.P1 notice. The learned Single Judge, therefore ought to have satisfied himself as to whether sufficient material existed to justify invocation of Section 411 by the first respondent before proceeding to dismiss the writ

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petition, in limine. Moreover, according to the learned counsel for the appellant, the appellant is entitled to seek for compensation from the respondents under public law remedy, for their misfeasance and abuse of power, in removing the gate at the entrance of the inner courtyard without just or proper cause and in stark violation of the principles of natural justice which caused significant mental distress and loss of reputation among the public to the petitioner/appellant.

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Heard learned counsel for the parties and perused the materials available on record.

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Section 406 of the Kerala Municipality Act, 1994 deals with powers of the Secretary with respect to the demolition or alteration of building work unlawfully commenced, carried on or completed and the Section 406 is extracted hereunder:

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“406. Demolition or alteration of building work unlawfully commenced, carried on or completed.— (1) Where the Secretary is satisfied-

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(i) that the construction, reconstruction or alteration of any building or digging of any well-

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(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Council; or

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(b) is being carried on, or has been completed otherwise

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than in accordance with the plans or specifications on which such permission or decision was based; or

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(c) is being carried on, or has been completed in breach of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or

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(ii) that any alteration required by any notice issued under section 395 has not been duly made; or

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(iii) that any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 405,

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he may make a provisional order requiring the owner or the person for whom the work is done to demolish the work done, or so much of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alterations as may, in the opinion of the Secretary, be necessary to bring the work in conformity with the provisions of this Act, bye-laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work.

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[Provided that the Secretary may, on realisation of a compounding fees as may be fixed by the Government, regularise any constructions, reconstruction or alteration of any building or digging

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of any well, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the approved plan, if such construction, reconstruction or alteration of the building or digging of the well does not contravene any of the provisions and specifications mentioned in this Act or the Building Rules made thereunder.]

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(2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice why the order should not be confirmed.

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(3) Where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the same to such extent as he may think fit to make, and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished or the well dismantled, as the case may be and the expenses therefor shall be recoverable from the owner or such person.

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(4) Notwithstanding anything contained in sub-section (2) or subsection (3), prosecution proceedings against the owner or the person for whom the work is done may be initiated.

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[(5) Where the Government is satisfied that the construction, reconstruction or alteration of any building has been carried out in breach of any of the provisions of this Actor any rules made

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thereunder or any direction lawfully given by the Government, or Secretary, the Government may direct the Secretary of the Municipality to cause demolition of such construction, reconstruction or alteration unlawfully carried out and if such direction is not complied within the time limit specified in such direction, the Government may arrange the demolition and cost thereof shall be recovered from the Municipality.]

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Chapter XIX of the Kerala Municipality Act, 1994 deals with nuisances, dangerous structures, trees and places. Section 411 stipulates the precautions in case of dangerous structures and the same reads as under:

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“411. Precautions in case of dangerous structures. — (1) Where any structure is deemed by the Secretary to be in a ruinous state and dangerous to the passers-by or to the occupiers of neighbouring structures, the Secretary may by notice require the owner or occupier of such structure to fence off, take down, secure, demolish or repair the same so as to prevent any danger therefrom.

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The power given under Section 411 of the Kerala Municipality Act, 1994 to the local authority in public interest is to get dangerous buildings removed. Object is to save any disaster. In such circumstances, to invoke the power under Section 411 of the Kerala Municipality Act, 1994 the structure should be in a ruinous state and dangerous to the passers-by or to the occupiers of neighbouring structures, then only the Secretary may, by notice require the owner or occupier of such structure to fence off, take down, secure, demolish or repair the same so as to prevent any danger therefrom.

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Considering the facts and circumstances of the case, we are of the view that the issuance of notice under Section 411 of the Kerala Municipalities Act, 1994 is erroneous. In Ext.P1 notice, there is no such observation that any part of the structure is in a ruinous and dangerous state and therefore, requires to be immediately demolished or taken down. Moreover, it is impossible that a gate erected at the entrance of the inner courtyard could be deemed as posing imminent danger to the passers-by or even the occupants of the shopping

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complex, so as to warrant its removal within 24 hours. That apart, even the Overseer in his report to the Municipal council has only recorded that the vehicle movement is blocked due to the unauthorized construction, there is no way leading to fire escape stair case and that the fire escape stare case was found to be closed with grill so as to becoming a no escape situation during a fire disaster. From the above report, there is nothing to indicate that the structure was both ruinous and dangerous to the passers-by or to the occupiers of neighbouring structures. The expression ruinous and dangerous to the passers-by or to the occupiers of neighbouring structures, is conjunctive and not disjunctive.

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In the light of the above discussion, notice under Section 411 and the consequential action taken in connection with that, are erroneous. Material on record shows that with the assistance of police, the gate erected at the entrance of the inner courtyard of the building has been removed. However, having regard to the facts and circumstances of the case, we are not inclined to issue any direction to Secretary/respondent No.1 to restore the same to its original position. Provisional order has been issued under Ext.P6 and that there is another notice Ext.P7 demanding charges issued under Sections 406(1) and 406(2) of the Kerala Municipalities Act, 1994 (Act 20 of 1994) and it is for the appellant to submit his reply within seven days from the date of receipt of a

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copy of the notice. However, taking into account the pendency of the appeal, appellant is given two weeks time to file reply to the said proceedings from the date of receipt of a copy of this judgment. Secretary, Thalassery Municipality is directed to pass orders on Exts.P6 and P7 taking into account the reply within two week thereafter, after giving a reasonable opportunity of hearing to the appellant in accordance with law.

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With the above directions, writ appeal is disposed of.

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Pending interlocutory applications, if any, shall stand closed.

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sd/- S.MANIKUMAR CHIEF JUSTICE

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sd/- SHAJI P. CHALY JUDGE

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jes

A.M.Raveendran, v. Thalassery Municipality

Case brief

What is this about?

What did the court decide?

A.M.Raveendran, v. Thalassery Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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