Allowed

K.C. Samson v. Corporation of Cochin

Kerala HC16 Feb 2023WP(C)/23317/2021

Case brief

AI extract

What is this about?

The Court set aside the Tribunal order confirming a provisional demolition order. It held that the final demolition order was passed in violation of natural justice, using a standard printed form without recording reasons for rejecting the petitioner's explanation, and directed a fresh hearing.

What did the court decide?

Set aside Ext.P25 and Tribunal order Ext.P27. Directed Secretary to consider petitioner's objection and pass appropriate orders within 6 weeks after hearing both parties.

K.C. Samson Vs Corporation of Cochin — Landlord and Tenant | Kerala HC (2023)

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"CR"

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

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THURSDAY, THE 16^TH DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 WP(C) NO. 23317 OF 2021

PETITIONER:

K.C. SAMSON

AGED 55 YEARS

S/O.K.T. CLETUS, IX/359A, KOTTILAKKATU HOUSE, FORT KOCHI - 682001.

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BY ADVS. G.KRISHNAKUMAR AYYAPPADAS V B.S.SURAJ KRISHNA

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RESPONDENTS:

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1 CORPORATION OF COCHIN PARK AVENUE ROAD, ERNAKULAM, PIN - 682016, REPRESENTED BY ITS SECRETARY.

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2 ADDITIONAL SECRETARY CORPORATION OF COCHIN, PARK AVENUE ROAD, ERNAKULAM, PIN - 682016.

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3 ASSISTANT ENGINEER, CORPORATION OF COCHIN, FORT KOCHI ZONAL OFFICE, KOCHI - 682001.

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4 ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF COCHIN, FORT KOCHI ZONAL OFFICE, KOCHI - 682001.

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5 BEENA W/O. SUDHEESH KUMAR, RETIRED HEALTH OFFICER, CORPORATION OF COCHIN, RESIDING AT 11/359B, KADATHANAT HOUSE, FORT KOCHI, KOCHI - 682001.

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BY ADVS. D.G.VIPIN K.RAMAKUMAR (SR.)

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W.P. (c) No. 23317/2021

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S.M.PRASANTH R.S.ASWINI SANKAR T.H.ARAVIND G.RENJITH T.RAMPRASAD UNNI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P. (c) No. 23317/2021

“CR”

JUDGMENT

The petitioner is the owner of 3.25 cents of property and residential building therein in Survey No.906/1 of Fort Kochi Village. The 5^th respondent is the owner of the adjacent property on the northern side of the petitioner's property. According to the petitioner, he constructed a single storied building in the year 2002 after obtaining building permit and the building was assigned a number by the Corporation as 11/359A. Later, the petitioner constructed two rooms in the ground floor without obtaining approved plan. The petitioner states that, at the instance of the 5^th respondent, who was working as Health Inspector in Corporation of Cochin, the Secretary of the Corporation initiated proceedings against him under Section 406(1) of the Kerala Municipality Act, 1994 (for short, 'the Act') for carrying out the aforesaid construction and issued

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provisional order under Section 406(2). Meanwhile, the petitioner submitted Ext.P18 application for

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regularisation of the construction. However, the 1^st respondent, without considering the application for regularisation, issued Ext.P19 order under section 406(3) of the Act requiring the petitioner to demolish the construction.

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Ext.P19 was challenged before this Court in W.P.(C)No.27458/2018 and this Court, by Ext.P20 judgment, disposed of the writ petition directing the Secretary of the Corporation to consider Ext.P18 application for regularisation within three months and thereafter to consider the issue pertaining to notice issued under Section 406(1) and (2) of the Act in accordance with law, taking into account the objections, if any, submitted by the petitioner and also the directives issued by the Tribunal for Local Self Government Institutions (the Tribunal, for short) in the previous rounds of litigation and after providing opportunity of

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hearing to the petitioner and the 5^th respondent.

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Ext.P20 judgment was challenged before this Court in W.A. No.2223/2018 by the 5^th respondent. During the pendency of the writ appeal, the Corporation issued notice to proceed with the demolition order and the petitioner preferred Contempt Case (c) No. 2330/2018 which was closed by Ext. P22 judgment by accepting the affidavit of the Secretary tendering apology. The Division Bench, by Ext.P21 judgment disposed of the writ appeal, directing the Corporation to pass fresh orders in lieu of Ext.P19 after hearing the parties pursuant to the notice under Section 406(1). By Ext.P23 order in R.P. No.248/2019 filed by the 5^th respondent, the Division Bench clarified Ext.P21 judgment observing that the Court has not expressed any opinion as to whether there was any unauthorised construction or not.

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Pursuant to the directions of this Court, the petitioner and the 5^th respondent were called for hearing

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W.P. (c) No. 23317/2021

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by the Additional Secretary of the Corporation on 14.3.2019. The petitioner states that the hearing was then adjourned for survey measurement. However, the 1^st respondent on 18.05.2019 passed Ext.P25 order under section 406(3) of the Act confirming the provisional order and directing the petitioner to demolish the construction.

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The petitioner challenged Ext.P25 order in appeal before the Tribunal contending, inter alia , that the said order is passed without considering the objection submitted by the petitioner to the provisional order and without hearing him. It was also contended that without ascertaining the boundary in between the property of the petitioner and the 5^th respondent, the dispute as to set back cannot be decided by the Secretary and that Ext. P25 is a cryptic and nonspeaking order. The Tribunal passed Ext.P27 order dismissing the appeal preferred by the petitioner. The Tribunal held that the file produced by the Secretary of

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the Corporation shows that the Secretary issued notice for hearing to both sides and the documents and objections were perused and thus the order of this Court was complied with. It was also observed that all statutory formalities were complied with while issuing Ext P.25 order and that the petitioner could not produce any documents to show that he has not effected any unauthorized construction. The Tribunal has also held that the Secretary could clearly find out the violations as per Rule 24(3), (4) & (5) of Kerala Municipality Building Rules and on the basis of such findings, the Secretary has issued the impugned order.

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The petitioner challenges Ext.P27 order of the Tribunal contending, inter alia , that the Tribunal failed to appreciate that Ext. P25 order was a stereotyped non speaking order passed by the Secretary of the Corporation without any application of mind and in violation of the principles of natural justice and contrary to the mandate under Section 406(3) of the Act.

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A counter affidavit is filed by the 5^th

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respondent wherein it is contended that the correctness of the order passed by the Tribunal after appreciating the facts cannot be challenged in a proceedings under Article 226 of the Constitution of India. Referring to Ext. P25 order passed by the Secretary, the 5^th respondent denies the contention of the petitioner that the order was passed without hearing him and that it has been recorded that the petitioner did not show any satisfactory reason for not demolishing the unauthorised construction. It is also contended that the petitioner has no right to get the unauthorised construction regularised and that there is no escape from the conclusion that such unauthorised construction shall have to be removed.

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This Court, by order dated 20.10.2022, directed the Secretary of the Corporation to file an affidavit with regard to the details of hearing pursuant to the show cause notice cum provisional order. The Secretary has,

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accordingly, filed a counter affidavit wherein it is stated that as per the order dated 13.04. 2016 passed by the Tribunal in Appeal No. 191/2014 (Exhibit P-3), the Secretary has directed the petitioner and 5^th respondent to fix the boundary of their respective properties and thereafter, the said fact was also informed to the Taluk Surveyor, Kochi. However, the properties were not measured out by the Taluk Surveyor. It is further stated that as per the directions contained in Ext. P21 judgment, the additional Secretary heard the petitioner and the 5th respondent and on the basis of the said hearing, an order has been passed to demarcate the boundary of the properties of the petitioner and the 5 th respondent. The Secretary has further stated that the petitioner informed the Corporation that the 5^th respondent had already approached the Munsiff's Court, Kochi by filing O.S. No. 91/2014 for fixation of boundary and she had filed an interim application therein to measure out the properties by Advocate Commissioner

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with the assistance of surveyor and things stood as above, Exhibit P-25 order was issued by the Corporation. The Secretary has also stated that he is ready to hear the petitioner to redress the grievance under Section 406.

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An additional counter affidavit is filed by the 5^th respondent producing the copy of the deposition of the petitioner at the time of hearing on 14.03.2019 to contend that the petitioner was heard before passing Ext. P25 order.

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Heard Sri. G.Krishna Kumar, the learned counsel for the petitioner, Sri. Vipin D.G, the learned standing counsel for respondents 1 to 4 and Sri. K. Ramakumar, learned senior counsel for the 5^th respondent.

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In Ext. P27, the Tribunal has observed that the file produced by the Secretary of the Corporation shows that the Secretary issued notice of hearing to both sides and the documents and objections were perused and thus

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the order of this Court was complied with. The specific case of the petitioner before the Tribunal was that Ext.P25 order is passed without considering the objection submitted by him to the provisional order and without hearing him. According to the petitioner, pursuant to the direction of this Court, he and the 5^th respondent were called for hearing by the Additional Secretary of the Corporation on 14.3.2019 and the hearing was adjourned for survey measurement. From Ext. P24 Note files of the proceedings leading to Ext. P25 order, it can be seen there is endorsement in the file by the Secretary on 30.3.2019 to the effect that there has to be clarity regarding boundary and letter was ordered to be issued to the Taluk Surveyor. There is a further direction to ascertain the period during which the construction has been carried out. Following this, there is another endorsement on 04.04.2019 about the drafting of letter to be addressed to the Taluk Surveyor.

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In the affidavit filed by the Secretary, it has

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been admitted that, on the basis of the hearing held on 14.03.2019, an order has been passed to demarcate the boundary of the properties of the petitioner and the 5^th respondent. Thus, no orders were passed by the Secretary under Section 406 (3) of the Act pursuant to the hearing on 14.03.2019 and instead, an order was passed to demarcate the boundary of the properties of the petitioner and the 5^th respondent for the purpose of taking final decision on the proceedings initiated under Section 406 (1) and (2). The endorsement dated 09.05.2019 in the Note files shows that the 5^th respondent has, by letter dated 29.04.2019, objected to the letter issued by the Secretary to the Taluk Surveyor to measure the properties stating that the same amounts to violation of Court's order and would invite contempt of court proceedings. The same day, an endorsement is made in the file to 'issue fresh order u/s. 406(3)'. Accordingly, Ext. P25 order dated 18.05.2019 has been passed by the Secretary. It is borne out from

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records and the affidavit of the Secretary that the Secretary has, on the basis of hearing held on 14.03.2019, taken a decision to demarcate the boundary of the properties of the petitioner and the 5^th respondent and orders under Section 406 (3) were deferred. The contention of the petitioner that the hearing held on 14.03.2019 was adjourned for survey measurement is therefore correct and sustainable. However, on the basis of objection submitted by the 5^th respondent in directing the Taluk Surveyor to measure the properties, the Secretary dropped further steps to measure the properties and on 18.05.2019 passed Ext.P25 order under Section 406(3) of the Act confirming the provisional order and directing the petitioner to demolish the construction. The decision to withdraw the order for demarcating the boundary of the properties of the petitioner and the 5^th respondent was taken by the Secretary behind the back of the petitioner. When such a course is adopted by the Secretary, fresh notice of

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hearing should have been issued to the petitioner and the 5^th respondent before passing final order under Section 406 (3). The proceedings have been abruptly terminated without further notice and Ext. P25 order has been issued. Ext. P25 is issued in total disregard to the principles of natural justice. The Tribunal has omitted to take note of these illegalities in the proceedings which culminated in Ext. P25.

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It is imperative that unauthorised constructions shall not be encouraged. The Act provides for demolition of unauthorised buildings. Section 406 of the Kerala Municipality Act reads as follows;

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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 - (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 than in accordance with the plans or specifications on which such permission or decision was

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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 byelaw or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, byelaw or order; or

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(ii) that any alteration required by any notice issued under S.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 S.405, 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, byelaws, 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 of any well, commenced, carried on or completed

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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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(emphasis supplied)

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Under the scheme of the Act, if the Secretary is satisfied

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that a building has been unauthorisedly constructed, he may make a provisional order requiring the owner or the

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person for whom the work is done to demolish the work

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done and the Secretary shall serve a copy of the provisional order 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. If 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. It is only when the Secretary is satisfied that a building has been unauthorisedly constructed, he may make a provisional order requiring demolition of the structure and issue show cause notice. It is only when 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 provisional order. A reading of Section 406 shows that power vested in the Secretary under the Act shall be exercised judicially and reasonably. The owner or the person for whom the work is done shall be given a

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reasonable opportunity to show cause why the provisional order should not be confirmed. The explanation to the provisional order has to be duly considered by the Secretary before a final order is passed. It should be clearly evident from the final order that the explanation has been duly considered by the Secretary. If the explanation is rejected, the reason for rejection must be clear from the final order. An order of demolition of any building is bound to bring serious adverse civil consequences for the concerned owner or occupier of the building. The power under Section 406 of the Act has to be exercised fairly and reasonably.

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On a perusal of Ext.P25 order issued by the Secretary under Section 406 (3) of the Act, it is seen that the same is in the form of a cyclostyled order. It is a standard printed form with some dotted lines filled up. The printed form contains sentences that the cited person has not submitted explanation, as well as, the explanation submitted is not satisfactory, leaving it to

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the Secretary to strike off whichever is not applicable. The first sentence would indicate that no reply has been submitted, whereas, the second sentence suggests that the reply submitted is not satisfactory. In Ext. P25, the Secretary has not struck off either. No reason whatsoever has been stated for confirming the provisional order. The issuance of order for demolition of building in printed forms shows mechanical exercise of power vitiated by non application of mind. In Standard Furniture, Calicut v . Registrar, EPF Appellate Tribunal and others [2020 (3) KHC 793], a Division Bench of this Court had cautioned authorities passing orders using standard printed forms especially when they exercise quasi-judicial functions. The practice of passing orders under Section 406 of the Act in standard printed format is to be deprecated.

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Ext. P25 order issued by the Secretary of the 1^st respondent Corporation is vitiated by violation of the principles of natural justice and is set aside. The Tribunal

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failed to take note of the mandate of Section 406 and the illegalities in the proceedings which culminated in Ext. P25. Ext. 27 order also stands set aside. The Secretary of the 1^st respondent Corporation is directed to consider the objection submitted by the petitioner to the provisional order cum show cause notice and pass appropriate orders, in accordance with law, after hearing the petitioner and the 5^th respondent. This shall be done within a period of six weeks from the date of receipt of copy of this judgment.

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Writ petition is allowed as above. There will be no order as to costs.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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spc/..

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W.P. (c) No. 23317/2021

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APPENDIX OF WP(C) 23317/2021

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE STOP MEMO DATED 20.02.2014 ISSUED BY THE 1ST RESPONDENT.

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Exhibit P2 TRUE COPY OF THE NOTICE DATED 27.01.2014 ISSUED BY THE 3RD RESPONDENT.

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Exhibit P3 TRUE COPY OF THE ORDER DATED 13.04.2016 IN APPEAL NO. 191/2014 OF THE LEARNED TRIBUNAL FOR LSGI, THIRUVANANTHAPURAM.

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Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED 07.09.2016 ISSUED BY THE 1ST RESPONDENT.

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Exhibit P5 TRUE COPY OF THE ORDER DATED 16.11.2016 IN APPEAL NO. 1133/2016 OF THE TRIBUNAL FOR LSGI, THIRUVANANTHAPURAM.

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Exhibit P6 TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT. Exhibit P7 TRUE COPY OF THE HEARING NOTICE DATED 17.01.2017 (MISTAKENLY WRITTEN AS 17.01.2016)

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Exhibit P8 AFFIDAVIT SWORN BY SRI. VIJAYAN,

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Exhibit P9 TRUE COPY OF THE PROPERTY TAX RECEIPT RENDERING TO THE BUILDING XI, 359 A, DATED 16.01.2003.

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Exhibit P10 TRUE COPY OF THE PROPERTY TAX RECEIPT RENDERING TO THE BUILDING XI. 359A DATED 16.02.2004.

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Exhibit P11 TRUE COPY OF THE PROPERTY TAX RECEIPT RENDERING TO THE BUILDING XI.359A DATED 2.09.2004.

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Exhibit P12 TRUE COPY OF THE PROPERTY TAX RECEIPT RENDERING TO THE BUILDING XI.359A DATED 1.09.2011.

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Exhibit P13 TRUE COPY OF THE COMMISSION APPLICATION FILED BY THE 6TH RESPONDENT IN I.A NO. 2286/2015 IN OS NO.91/2014 ON THE FILES OF MUNSIFF COURT, KOCHI.

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Exhibit P14 TRUE COPY OF THE DEMAND NOTICE DATED 17.05.14 DEMANDING TAX FOR THE PERIOD 01.04.2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

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Exhibit P15 TRUE COPY OF THE NOTICE DATED 06.02.2017 ISSUED BY THE 4TH RESPONDENT.

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Exhibit P16 TRUE COPY OF THE DISCONNECTION NOTICE DATED 13.03.2017 ISSUED BY THE ASSISTANT ENGINEER,KSEB.

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Exhibit P17 TRUE COPY OF THE NOTICE DATED 30.01.2017 ISSUED BY THE 1ST RESPONDENT WHICH WAS SERVED TO THE ASSISTANT

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W.P. (c) No. 23317/2021

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ENGINEER,KSEB, ELECTRICAL SECTION ON 06.03.2017.

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Exhibit P18	TRUE COPY OF THE APPLICATION DATED 28.04.2018 FOR REGULARIZATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.

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Exhibit P19 TRUE COPY OF THE ORDER NO. FCP2-337/16 DATED 11.07.2018 OF THE 1ST RESPONDENT.

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Exhibit P20 TRUE COPY OF THE JUDGMENT DATED 15.10.2018 IN WP(C) NO. 27458/2018 OF THIS HON'BLE COURT.

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Exhibit P21 COPY OF THE JUDGMENT DATED 20.02.2019 IN WA NO.2223/2018 BY DIVISION BENCH OF THIS HON'BLE COURT.

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Exhibit P22 TRUE COPY OF THE JUDGMENT DATED 16.01.2019 IN CONTEMPT CASE (C) NO.2330/2018 IN WA NO.2223/2018 OF THE DIVISION BENCH OF THIS HON'BLE COURT.

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Exhibit P23 TRUE COPY OF THE ORDER DATED 22.03.2019 IN RP NO. 248/2019 IN WA NO.2223/2018 OF THE DIVISION BENCH OF THIS HON'BLE COURT.

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Exhibit P24 TRUE COPY OF THE RELEVANT PORTION OF THE FILE NOTES IN FCP2-OBTAINED UNDER THE RTI ACT.

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Exhibit P25 TRUE COPY OF THE ORDER DATED 18.05.2019 ISSUED BY THE 1ST RESPONDENT.

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Exhibit P26 TRUE COPY OF THE OBJECTION DATED 29.04.2019, PREFERRED THE 5TH RESPONDENT TO THE 1ST RESPONDENT.

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Exhibit P27 TRUE COPY OF THE ORDER DATED 23.07.2021 IN APPEAL NO. 429/2019 OF THE LSGI TRIBUNAL, THIRUVANANTHAPURAM.

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Exhibit P28 TRUE COPY OF IA NO. 632/2014 DATED 10.03.2014 IN OS NO. 91/2014 ON THE FILES OF MUNSIFFS COURT KOCHI.

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Exhibit P29 TRUE COPY OF IA NO. 2983/2017 IN OS NO. 91/2014 ON THE FILES OF MUNSIFFS COURT, KOCHI.

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Exhibit P30 TRUE COPY OF IA NO. 2183/2018 DATED 24.09.2018 IN OS NO. 91/2014 ON THE FILES OF MUNSIFF'S COURT KOCHI.

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RESPONDENT EXHIBITS Exhibit R5 A TRUE COPY OF OFFICE NOTE DATED 14.3.2022 OBTAINED UNDER THE RTI ACT BY THE 5TH RESPONDENT.

K.C. Samson v. Corporation of Cochin

Case brief

What is this about?

What did the court decide?

K.C. Samson v. Corporation of Cochin

Case brief

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What did the court decide?

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