Municipality Act | Secretary Can Issue Notice, Take Action Upon Finding Illegal Construction Being Carried Out : Kerala High Court

The Kerala High Court on Monday held that the Secretary of a Municipality is empowered to issue notice and initiate suitable action if a building construction is found to be proceeding illegally within their jurisdiction. 

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed so while dealing with a set of appeals filed under the Kerala Municipality Act and the Kerala Municipality Building Rules. 

"...we are of the view that when it is found that illegal construction is carried out in violation of the provisions of the Building Rules, 1984 or the Kerala Municipality Act, 1994 and the Kerala Municipality Building Rules, 1999, the Secretary is vested with ample powers to issue notice in contemplation of law and take appropriate action irrespective of the regularisation of the petty work."

The appellants, the landlord and tenant of a building in the Chengannur Municipality respectively moved the Bench challenging the decision of the Single Judge. 

The landlord had initially filed a petition against the action initiated by the Secretary of the Chengannur Municipality under Section 406 of the Kerala Municipality Act, 1994 dealing with demolition of unlawful building works.

The tenant had filed another petition challenging the cancellation of the D&O license granted to conduct a supermarket, by the Secretary apparently invoking power under Section 447(3), in consequence of the order passed against the landlord

They had also challenged the final order passed under Section 406 (3) directing the revenue inspector to demolish the unauthorised construction.

However, both these petitions were dismissed by the Single Judge by a common judgment. 

Standing Counsel S. Harikrishnan appearing for the Municipality and the Secretary agreed with the finding of the Single Judge. 

Appearing for the appellant-landlord, Advocates Babu Karukappadath and Madhu Radhakrishnan submitted that their application for construction of a three-storied building within the Chengannur Municipality was forwarded to the Government for exemption from various provisions of the Kerala Building Rules, 1984, which was then in force for the construction of buildings within the Municipal areas.

As per Government Order dated 10.06.1993, the exemption sought by the appellant for the area to be set apart for car parking was rejected holding that the provision of adequate parking space was imperative and permitting a major shopping/office building on the site would attract more traffic issues in the area.

However, the appellant argued that in the review application he submitted, the Government had granted exemptions in the matter of parking area as well.

Meanwhile, a resident approached the Ombudsman for Local Self Government Institutions alleging that the parking area provided for the building had been converted into a shop, violating the Building Rules.

Although the plea was dismissed for undue delay, the Ombudsman found merit in the resident's suspicions of fabrication and forgery. 

Thereafter, upon the Ombudsman's direction, the Secretary issued a notice and provisional order under Section 406(1) and (2) to the appellant in 2012 specifying the illegal constructions carried out in the parking area.

The appellant was thus directed to remove the six rolling shutters put up preventing entry of cars and the raised floors or to submit a due explanation to the provisional order.

Although the appellant filed an objection to the same, the Secretary passed final orders to close the business. In that process, the tenant's application for D & O license was also rejected by the Secretary. 

The appellants argued that the finding of the Secretary and the Single Judge that relaxation was not granted in respect of parking space was erroneous and incorrect.

They added that since they were paying tax for the ground floor area, the Secretary could not direct them to demolish an area of 316m2 constructed by the appellant in accordance with the approved plan at a later point in time.

The basic contention they advanced was that when an exemption is granted by directing to increase front open space to 12 meters from the edge of the road to facilitate future road widening and parking of cars, the requirement with respect to the parking of cars provided under Rule 20 of the Kerala Building Rules is given exemption. 

The Court disagreed with this contention on the ground that the exemptions granted by the subsequent Government Order were not related to a parking space. 

"We are unable to agree with the same because it is categoric and clear that exemption is granted only from Rules 15(5), 17 and 33(c) of the Kerala Building Rules, 1984...it can be seen that those Rules are not dealing with the requirement of parking at all but on the other hand they are dealing with other circumstances mandatorily necessitated to be maintained by a plot owner for the construction of a building."

Further, the Bench noted that the Government Order had clearly declined permission to exempt the provisions with regard to parking area holding that adequate parking area is imperative in the area. 

It was also found that the appellant had not intimated the Secretary regarding any of the construction work being carried out on the plot, thereby making it unauthorized. 

As such, it was held that the Secretary was right in doubting the nature of the construction carried out by the appellant and issuing a notice upon finding it to be illegal.

However, regarding the tenant's application, the Bench found that Secretary was bound to give notice to the occupier of the building which was not exercised in this case. 

Accordingly, a direction was issued to the Secretary of the Municipality to follow the procedure contemplated under Section 242 (5) of the Act and proceed in accordance with law.

Therefore, the writ appeal was partly allowed. 

Case Title: V.V. Abraham v. Chengannur Municipality & Ors.

Citation: 2022 LiveLaw (Ker) 67

Click Here To Read/Download The Order