IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 30564 of 2009(M) -------------------------------------------------- PETITIONER(S): ---------------------- SIVAPRASAD S.SHENOY S/O. SURENDRA SHENOY, THAYANERI, PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK KANNUR DISTRICT. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT SUPERINTENDENT OF POLICE KANNUR. 3. THE CIRLCE INSPECTOR OF POLICE PAYYANNUR, KANNUR DISTRICT. 4. KIZHAKKEVEETTIL VIJAYAN S/O.KRISHNAN, POORNIMA, PAYYANNUR AMSOM DESOM P.O.PAYYANNUR, TALIPARAMBA TALUK,KANNUR DISTRICT. 5. THE SECRETARY PAYYANNUR MUNICIPALITY,PAYYANNUR, KANNUR DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS. ADV. SRI.M.SASINDRAN FOR R5 ADV. SRI.KALEESWARAM RAJ FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.30564 OF 2009 M PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF NOTICE DATED 7.3.2009 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P2 TRUE COPY OF OBJECTION FILED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT. EXT.P3 TRUE COPY OF NOTICE DATED 29.6.2009 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P4 TRUE COPY OF OBJECTION DATED 23.7.2009 SUBMITTED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R4(A) TRUE COPY OF THE PETITIONER'S COMPLAINT DATED 28.2.2009 TOGETHER WITH RECEIPT DATED 28.2.2009 ISSUED BY THE PAYYANNUR MUNICIPALITY. // True Copy // PS to Judge K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NO. 30564 OF 2009 M --------------------------------------------------- Dated this the 2nd March, 2010 JUDGMENT K.M. Joseph, J. Petitioner seeks the following reliefs: “(i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the third respondent not to interfere in the dispute between the petitioner and the fourth respondent in regard to the concrete sunshade of the petitioner's building bearing number 626 and 627 of Ward No.21 of Payyannur Municipality which matter is pending consideration before the 5th respondent Municipality. (ii) Issue a writ of prohibition or any other appropriate writ, order or direction, restraining the third respondent from interfering with the dispute in regard to the sunshade of petitioner's building bearing Nos.626 and 627 of Ward No.21 of Payyannaur Municipality.” WPC.30564 OF 2009 M 2 2. Briefly put, the case of the petitioner is as follows: Petitioner is the absolute owner in possession of the buildings bearing Nos.626 and 627 in Ward No.21 of Payyannur Municipality. It was an old building with tiled roof. There was a roofed sunshade on the western side of the building. Due to old age, the roofed sunshade on the western side was about to fall down. In the year 2004, the petitioner replaced the roofed sunshade by a thin layer of concrete slab. He was served with a notice by the fifth respondent, Secretary of the Payyannur Municipality. Petitioner submitted a detailed a reply. The necessary fee for regularisation was also remitted by the petitioner. Fourth respondent purchased the building on the western side in the year 2006. He submitted a complaint in 2009 to the Secretary about the sunshade protruding into his property. The Secretary issued Ext.P1 notice. Petitioner submitted Ext.P2 objection. He received Ext.P3 notice to which he submitted Ext.P4. The matter is pending consideration before the fifth respondent. While so, the third respondent WPC.30564 OF 2009 M 3 Circle Inspector of Police came to the shop room of the petitioner and directed the petitioner to demolish the concrete sunshade within two days and if it is not removed, it will be demolished on his supervision and the petitioner will be falsely implicated in criminal case. It is stated that the fourth respondent exerted political influence on the third respondent. Affidavits have been filed by the fourth respondent. 3. We heard the learned counsel appearing for the parties. Learned counsel for the petitioner reiterated his contentions. Learned counsel for the fourth respondent would submit that the construction was made by the petitioner in 2009, and not in 2004, for which the fourth respondent filed Ext.R4(a) complaint. He further points out Sections 406, 408, 550 and 551 of the Kerala Municipality Act (hereinafter referred to as the Act), to contend that the police have authority in the matter. Learned counsel for the Municipality would submit that the matter is pending consideration before the Municipality. Learned Government Pleader would submit that the petitioner was called WPC.30564 OF 2009 M 4 to the police station and the third respondent will not interfere in the matter. 4. We perused Section 406 of the Act. Section 406 empowers the Secretary to order demolition/alteration of building work unlawfully commenced, carried on or completed. Section 408 on which the fourth respondent relies on, refers to order of stoppage of buildings or works in certain cases. We notice that under sub-section (2), if the order to stop the work passed by the Secretary is not complied with, the Secretary may require any Police Officer to remove such person and all his Assistants and workmen from the premises within the said time as may be specified in the requisition and such Police Officer shall comply with the requisition accordingly. Sub-section (3) also proceeds on the premise of a requisition under sub-section (2) being breached, leading to a request in writing for assistance of of the Police Officer. It is not in dispute that there was no such requisition by the Secretary in the facts of this case, at present. Therefore, no reliance can be placed either on Section WPC.30564 OF 2009 M 5 406 or Section 408. Section 550 of the Act which is next relied on by the counsel for fourth respondent, deals with the duties of Police Officers. It inter alia provides as follows: “550. Duties of police officer.- (1) It shall be the duty of every police officer- (a) to communicate without delay to the proper officer of a Municipality any information which he receives of the design to commit or of the commission of any offence under this Act or any rule, bye-law or regulation made thereunder; and (b) to assist the Chairperson, the Secretary or any Officer or employee of a Municipality demanding his aid for the exercise of any power vested in them under this Act in or any rule, bye-law or regulation made thereunder. (2) Any Police Officer who omits or refuses to perform any duty imposed on him by this Act shall be deemed to have committed an offence under clause (d) of Section 41 of the Kerala Police Act, 1960 (5 of 1960).” There is no case for the fifth respondent Secretary that any WPC.30564 OF 2009 M 6 demand has been made for the assistance of third respondent for the exercise of any power vested in the Chairperson, Secretary or any Officer or employee of the Municipality. Therefore, Section 550 of the Act cannot clothe the third respondent with power to interfere in the matter between the petitioner and fourth respondent. Section 551 of the Act proclaims the power of the Police Officer to arrest persons. It speaks about the power of a Police Officer to arrest a person in the following circumstances: “551. Power of Police Officer to arrest persons.- (1) Where any Police Officer sees any person committing an offence against any of the provisions of this Act or of any rule or bye-law made thereunder, he shall, if the name and address of such person are unknown to him and if the said person, on demand, declines to give his name and address or gives a name and address, which such Officer has reason to believe to be false, arrest such person.” WPC.30564 OF 2009 M 7 It comprises of two elements. A Police Officer must see a person committing an offence against any provisions of the Act or of any Rule or of any Byelaw made thereunder. Further, he must make a demand about the name and address and if it is declined or if there is reason to believe that the name and address given is false, arrest may be made. We do not see how the said provision can be invoked in the facts of this case by the third respondent. Therefore, the upshot of this discussion is that the third respondent has no authority at present to interfere in the matter between the petitioner and the fourth respondent. Admittedly, the matter is pending consideration before the Municipal Authorities. In such circumstances, we dispose of the Writ Petition as follows: The third respondent is interdicted from interfering with the matter in connection with the construction of the sunshade by the petitioner. We further make it clear that, however, this does not mean that the proceedings which are pending under the Kerala Municipality Act are not to be taken to its logical and WPC.30564 OF 2009 M 8 legal conclusion. We are necessarily not pronouncing on the powers of the third respondent when the situation may change on account of the orders as may be passed by the Municipal Authorities. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge