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2019 DIGILAW 980 (KER)

S. Rema v. Kochi Municipal Corporation

2019-11-20

DEVAN RAMACHANDRAN

body2019
JUDGMENT: It is sometimes an irony that in a densely populated State like ours, where land and space is always in a premium, the scourge of vacant and abandoned properties posing threat to peaceful living in its neighbourhood, is also a reality. 2. Properties may be left vacant for a variety of reasons-most of them benign-but when its owner abandons his basic responsibilities of ownership, it becomes a problem for the local community and its residents. 3. The Kerala Municipality Act, 1994, (hereinafter referred to as 'the Act' for brevity) expressly recognises this societal predicament and fixes responsibility on the Municipality/Corporation concerned to effectively deal with it through the prescriptions in Sections 426, 427 and 430, which need a reading in its full to appreciate the peculiar issues presented in this case; for which purpose, I deem it requisite to extract them below : 426. Untenanted buildings or lands: Where any building or land, by reason of abandonment, disputed ownership or other cause remains untenanted, and thereby becomes a resort of idle and disorderly persons or where, in the opinion of the Secretary, becomes a nuisance, the Secretary may, after due enquiry, by notice, require the owner or person claiming to be the owner to secure, enclose, clear or cleanse the same within a reasonable time 427. specified in the notice. Removal of filth or noxious or wild vegetation: The Secretary may, by notice, require the owner or occupier of any building or land which appears to him to be in a filthy or unwholesome state, or over-growth with any thick, noxious or wild vegetation, trees or offensive undergrowth injurious to health or to the neighbourhood, to clear, cleanse or otherwise put the land in proper state or to clear away and remove such vegetation, trees or undergrowth within twenty four hours or such longer period not exceeding forty eight hours and in such 430. manner as may be specified in the notice. manner as may be specified in the notice. Secretary to act in default: Where any person fails to comply with a requisition made by the Secretary under Sections 426, or section 427, or section 428 or section 429, the Secretary may, without prejudice to any other action that may be taken against such person, cause the act or the work mentioned in that section to be done and the expenses incurred thereby may be recovered from such person in such manner as arrears of property tax under this Act. 4. The petitioner, who is stated to be a resident of the city of Kochi, has approached this Court alleging that a property next to hers has been left untended by its owner and that it has now attained the proportions of a mini forest with creepers, dense vegetation and uncontrolled undergrowth, thus rendering it the abode of feral reptiles and snakes; consequently, presenting imminent and real danger to her and to the other residents of the locality. 5. The petitioner says that since the Secretary of the Corporation took no action on her complaint against this deleterious scenario, she was constrained to approach the Ombudsman for Local Self Government Institutions, who issued Ext.P6 order directing the said Authority to immediately initiate action as per the provisions of Sections 427 and 430 of the Act to abate the nuisance and to ensure that it does not occur in the future. She says that in spite of this, since no action has been taken by the respondents, she was constrained to approach this Court through this Writ Petition. She thus prays that emergent directions be issued to the respondents to initiate necessary and sufficient action against the owner of the property in question and to ensure that the wild and uncontrolled vegetation from it is cleared in terms of the aforementioned statutory provisions. 6. Sri.P.K.Soyuz, learned Standing Counsel appearing for the Corporation, submitted that there has been no delay in initiating action by his client and that as soon as this Writ Petition was filed, apposite measures and steps had been taken to clear the entire property and he handed over certain photographs across the Bar in substantiation of his submission. 6. Sri.P.K.Soyuz, learned Standing Counsel appearing for the Corporation, submitted that there has been no delay in initiating action by his client and that as soon as this Writ Petition was filed, apposite measures and steps had been taken to clear the entire property and he handed over certain photographs across the Bar in substantiation of his submission. He then added that the Secretary of the Corporation now proposes to take necessary action under Section 430 of the Act against the owner of the property, including for reimbursement of the expenses incurred by the Corporation in clearing the vegetation and in maintaining the property in a condition which is without danger and harm to the residents of the locality. He says that this Court may, therefore, close this Writ Petition; however, assuring that all requisite action will be taken in the future also to ensure that the property in question is maintained, without it posing any danger to the petitioner. 7. When I consider the afore submissions, it is without doubt that it is statutorily enjoined upon the Secretary of the Municipal Corporation, under the provisions of the afore extracted Sections of the Act, to ensure that the properties within its territory are maintained without filth and noxious or wild vegetation. 8. The afore obligation of the Secretary is implicit in the manner in which the afore Sections have been worded, though it provides that the Secretary “may” require the owner or occupier of a building or land to take corrective steps within a period fixed in the notice to be issued. The word “may” in these provisions certainly construe the character of the word “shall”, once an information regarding nuisance or noxious and wild vegetation in a property, as specified in Sections 426 and 427 of the Act, are brought to the notice of the Secretary. In such event, it becomes enjoined on him to take immediate steps, by issuing necessary notices under the said provisions and if the owner or occupier fails to comply with such requisition, the Secretary becomes duty bound to have the nuisance abated and to have the filth and noxious or wild vegetation in the property removed, the expenses for such work being then recovered from the owner in the same manner as arrears of property tax are permitted to be recovered under the Revenue Recovery Act. 9. 9. The conjoined reading of the aforementioned provisions renders it perspicuous that when a citizen approaches the Secretary of the Corporation with a complaint that an unattended and unmaintained property is causing nuisance as specified under Section 426 or is covered by filth or noxious or wild vegetation as specified in Section 427 of the Act-then, in my firm view, the said Authority becomes obligated in law to take swift action against the owner or occupier of such premises and complete it under the mandate of Section 430 of the Act. 10. This is the specific intention of law; and this is the way it should be applied. 11. That said, in the case at hand, since the Corporation now takes the specific stand that they have already cleared the vegetation and that the property concerned is now free of reptiles and snakes thus abating the nuisance caused to the petitioner and other residents of the locality I deem it appropriate to close this Writ Petition, recording the submissions of Sri.P.K.Soyuz as afore; however, directing the Secretary of the Corporation to ensure that the owner of the property maintains it in future; and that should he fail to do so, then to take such necessary action under the provisions of Sections 427 and 430 of the Act, as and when warranted henceforth; and to recover the expenses for such purpose from the said owner through Revenue Recovery proceedings, after following due procedure. This writ petition is thus ordered.