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2023 DIGILAW 176 (KER)

K. C. Samson v. Corporation Of Cochin

2023-02-16

MURALI PURUSHOTHAMAN

body2023
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 5th 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 5thpetitioner states that, at the instance of the 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 provisional order under Section 406(2). Meanwhile, the petitioner submitted Ext.P18 application for 1st regularisation of the construction. However, the 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. 2. 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 hearing to the petitioner and the 5th respondent. 3. Ext.P20 judgment was challenged before this 5thCourt in W.A. No.2223/2018 by the 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). 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 5thExt.P23 order in R.P. No.248/2019 filed by the 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. 4. Pursuant to the directions of this Court, the petitioner and the 5th respondent were called for hearing 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 1st 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. 5. 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 5th respondent, the dispute as to set back cannot be decided by the Secretary and that Ext. P25 is a cryptic and non-speaking 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 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. 6. The petitioner challenges Ext.P27 order of the Tribunal contending, inter alia, that the Tribunal failed to appreciate that Ext. 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. 6. 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. 7. A counter affidavit is filed by the 5th 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 5th 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. 8. 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, 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 5th 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 5th respondent. 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 5th respondent. The Secretary has further stated that the 5thpetitioner informed the Corporation that the 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 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. 9. An additional counter affidavit is filed by the 5th 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. 10. 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 5th respondent. 11. 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 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 5th 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. 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. 12. In the affidavit filed by the Secretary, it has 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 5th 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 5th respondent for the purpose of taking final decision on the proceedings initiated under Section 406 (1) and (2). The endorsement dated 5th09.05.2019 in the Note files shows that the 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 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 5th 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 5th 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. However, on the basis of objection submitted by the 5th 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 5thpetitioner and the respondent was taken by the Secretary behind the back of the petitioner. When such a course is adopted by the Secretary, fresh notice of hearing should have been issued to the petitioner and 5ththe 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. 13. 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; "406. Demolition or alteration of building work unlawfully commenced, carried on or completed. The Tribunal has omitted to take note of these illegalities in the proceedings which culminated in Ext. P25. 13. 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; "406. Demolition or alteration of building work unlawfully commenced, carried on or completed. -(1) Where the Secretary is satisfied – (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 (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 based; or (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 (ii) that any alteration required by any notice issued under S.395 has not been duly made; or (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. [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 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.] (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. (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." (emphasis supplied) Under the scheme of the Act, if the Secretary is satisfied that a building has been unauthorisedly constructed, he may make a provisional order requiring the owner or the person for whom the work is done to demolish the work 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. 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 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. 14. 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 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 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. 15. Ext. P25 order issued by the Secretary of the 1st respondent Corporation is vitiated by violation of the principles of natural justice and is set aside. The Tribunal 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 1st 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 5th respondent. This shall be done within a period of six weeks from the date of receipt of copy of this judgment. Writ petition is allowed as above. There will be no order as to costs.