IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 WP(C).No. 15104 of 2011(K) ---------------------------------------- PETITIONER(S): ----------------------- K.T.JOSE, AGED 54 YEARS, S/O.THOMAN, KANJIRAKKADAN HOUSE, MADAYIKONAM P.O., THRISSUR DISTRICT. BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. IRINJALAKUDA MUNICIPALITY REPRESENTED BY SECRETARY, MUNICIPAL OFFICE, IRINJALAKUDA, THRISSUR DISTRICT, PIN-680121. 3. SECRETARY, IRINJALAKUDA MUNICIPALITY, MUNICIPAL OFFICE, IRINJALAKUDA, THRISSUR DISTRICT, PIN-680121. R1 BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR R2 & R3 BY ADV.SRI.SAJUSH PAUL.A.S., SC, MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.15104/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER. P2 COPY OF THE BUILDING PERMIT DATED 12/10/2010 ISSUED BY THE PANCHAYAT. P3 COPY OF THE ORDER DATED 01/01/2011. P4 COPY OF THE RECEIPT ISSUED BY THE MUNICIPALITY. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.15104 of 2011 ---------------------------- Dated 27th June, 2011 JUDGMENT The petitioner has effected construction of the first floor on the existing ground floor of a building that constitutes in Survey No.835/3 of Madayikonam Village on the strength of Ext.P2 permit. Subsequently, the petitioner was served with Ext.P3 notice under section 406(1) of the Kerala Municipality Act, 1994 (for short `the Act'). As per the said provisional order under section 406(1) of the Act the petitioner was required to demolish the alleged unauthorized construction. It is further stated therein that in case of his failure to demolish the alleged unauthorized construction the building permit would also be cancelled. On receipt of Ext.P3 the petitioner has submitted a reply on 28.3.2011. Ext.P4 is the receipt issued by the Municipality in token of receipt of the said reply. Though reply to Ext.P3 was submitted on 28.3.2011 no order was passed thereon so far. The petitioner apprehends coercive steps from the part of the respondents including demolition of the alleged unauthorized construction and also cancellation of the building permit. It is in the said circumstances that this writ petition has been filed. 2. I have heard the learned counsel appearing for the petitioner as also the learned standing counsel for respondents 2 and 3. WP(C).No.15104/2011 2 3. A perusal of Ext.P3 would reveal that it is a provisional order issued under section 406(1) of the Act. True that, as per the same, the petitioner was asked to demolish the alleged unauthorized construction. It also carries a threat of further coercive steps in case of his failure to demolish the said construction described thereunder including cancellation of the building permit. Going by the provisions under section 406(1) of the Act while issuing a provisional order the concerned party should be offered with an opportunity to show cause to the satisfaction of the Secretary. There is nothing in Ext.P3 which would reveal that, as per the same, such an opportunity was offered to the petitioner. In fact, as per Ext.P3, the petitioner was required to demolish the alleged unauthorized construction and further it is stated thereunder that in case of his failure to do so, the alleged unauthorised construction would be demolished and that the building permit would also be cancelled. There cannot be any doubt with respect to the position that a provisional order issued under section 406(1) of the Act has to be finalised in terms of the provisions under section 406(3) of the Act. Section 406(3) reads thus:- “406(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 WP(C).No.15104/2011 3 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.” A perusal of section 406(3) of the Act would reveal that if the concerned party fails to show cause to the satisfaction of the Secretary on receipt of provisional order under section 406(1) of the Act the Secretary is legally bound either to confirm the order or to modify the same to the extent as he may think fit to make. Only such an order is binding on the owner or concerned person. Admittedly, in this case, no such order was passed after issuance of Ext.P3 notice under section 406(1) of the Act. The contention of the petitioner is that he has submitted a reply as early as on 28.3.2011 on receipt of Ext.P3. In view of the said position obtained in this case, I am inclined to dispose of this writ petition as hereunder:- It will be open to the petitioner to file a reply to Ext.P3, if not already filed or if he wants to supplement the reply dated 28.3.2011, he may do so within two weeks from today. On receipt of such reply from the petitioner, the second respondent shall pass final orders after taking into consideration the reply and also additional reply, if any, thereon WP(C).No.15104/2011 4 within one month from the date of receipt of a copy of this judgment. Needless to say that the petitioner shall be afforded with an opportunity of being heard before passing final orders in terms of the directions in this judgment. Till orders are passed and communicated to the petitioner all coercive steps including demolition of the alleged unauthorized construction and the proposal to cancel the building permit already issued to the petitioner shall be kept in abeyance. Sd/- C.T.RAVIKUMAR Judge TKS