Kerala High Court
Abdul Kalam vs Kochi Municipal Corporation on 1 July, 2021
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
WP(C) NO. 39647 OF 2015
PETITIONER/S:
ABDUL KALAM
AGED 43 YEARS
S/O. ABDUL KHADER, VELUTHEDATH, AROOR VILLAGE,
CHANDIROOR P.O., CHERTHALA.
BY ADV SRI.B.PRAMOD
RESPONDENT/S:
1 KOCHI MUNICIPAL CORPORATION
CORPORATION OFFICE, KOCHI, REPRESENTED BY ITS
SECRETARY, PIN-682 011.
2 THE SECRETARY
KOCHI MUNICIPAL CORPORATION, CORPORATION OFFICE, KOCHI-
682 011.
3 *ADDL.R3. P.M.DINESHAN,
CONVENOR, NAVODHANA SHAKTHI CHARITHRA PRADARSHANAM,
43/20, CHENGANATH, AYYAPPANKVU, KOCHI 18,
IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 20.01.2016
IN I.A.NO.843/2016.
4 *ADDL.R4.THE SUB INSPECTOR OF POLICE,
CENTRAL POLICE STATION, ERNAKULAM. ADDL.R4
IS IMPLEADED AS PER ORDER DATED 01.04.2020 IN IA
13824/2017.
BY ADVS.
SRI.RAAJESH S.SUBRAHMANIAN,SC,COCHIN CO
SRI.R.HARISHANKAR
SRI.MADHU RADHAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 39647 OF 2015
2
JUDGMENT
This writ petition is filed by the petitioner, a dealer in uniforms and other allied materials, which is being conducted in a commercial building known as 'Lalan Towers', situated at the High Court Junction, within the limits of the Kochi Municipal Corporation. In the year 2014, the Corporation constructed an 'open air stage' just infront of the said building in a property in its possession and ownership with the intention of letting out to organizations for conducting programmes and meetings, which is having a plinth area of around 200 sq. metres. The said property is occupying the space between the public road and the building in question except a passage in between the commercial building and the adjoining property of the Corporation. According to the petitioner, though the proposal was to construct an open air stage, the construction was effected in an entirely different manner and the stage was put up with a roof using polymer sheets, and a space for audience which remains unroofed and built in the shape of a half snake boat. The case projected by the petitioner is that, no permit has been obtained for the construction, on the premise that the stage was constructed on a land owned by the 1st respondent Corporation. The grievance of the petitioner is that the stage so constructed would block the view to the commercial building including the petitioner's shop and further that, the rest of the area which was WP(C) NO. 39647 OF 2015 3 supposed to be remaining as an open air is being put up with temporary plastic sheets while meetings are conducted therein. It is also submitted that there would be meetings, dharnas and various forms of agitations in the stage on a daily basis and virtually the temporary roof put up would become permanent and therefore, the view of the ground floor as well as the 1 st floor of the building occupied by the petitioner completely gets blocked. In the above back drop, petitioner seeks the following reliefs:-
"(i) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to remove the open air stage constructed in front of the 'Lalan Tower' to any other convenient place;
OR
(ii) Issue a writ of mandamus or any other appropriate writ or order directing 1 st respondent to remove the roof above the open air stage and not to put up roof, temporary or permanent over the space for audience;
(iii) Issue such other order as this Hon'ble Court deems fit and necessary in the facts and circumstances of the case."
2. Petitioner has produced photographs and various other notices in order to demonstrate that meetings are being conducted frequently by constructing temporary roof and therefore, substantial prejudice is caused to WP(C) NO. 39647 OF 2015 4 the petitioner as well as others occupying the commercial building.
3. The 1st and 2nd respondents, i.e., the Corporation and the Secretary have filed a joint counter affidavit basically stating that, as per the approved plan of the commercial building 'Lalan Towers', the approach is through a 10 meter wide access on the southern side of the said building, whereas, the open air stage is on the northern side of the building. Moreover, the premises where the open air stage is constructed is protected by way of a compound wall and therefore, the averment that the view of the commercial building would be blocked is incorrect. It is also submitted that the area is being given to conduct programmes with the condition that no temporary structures are put up in the open air space as directed in the interim order.
4. Along with I.A.No.1/2019, petitioner has produced additional documents probably to establish before this Court that an entry is available from the northern main road through a passage and therefore, the contention that the entry is only from the southern side of the building is not true and correct.
5. I have heard learned Counsel for the petitioner Sri. B.Pramod and Smt. Namitha Jyothish and Mr. Harisankar, appearing for the Corporation and the Secretary and perused the pleadings and the materials on record. WP(C) NO. 39647 OF 2015 5
6. The discussion of facts made above would make it clear that the main grievance projected by the petitioner is on account of a roof constructed to the stage in the property in question belonging to the Kochi Corporation and the temporary structures put up when meetings are conducted. It is an admitted fact that it is a property belonging to the Koch Corporation and it is for the owner of the property to decide the manner in which the property is to be utilized. In fact the issue is guided by Section 368 of the Kerala Municipality Act, 1994, which reads thus:-
"368. Power to allow certain works.- (1) The Municipality may grant a licence, subject to such conditions and restrictions as it may think fit, to the owner or occupier of any premises to cover drains necessary for access to the premises.
(2) A Municipality, may grant a licence, subject to such conditions and restrictions as it may think fit, for the temporary erection of pandals and other structures in a public street vested in the Municipality or in any other public place the control of which is vested in the Municipality.
(3) A Municipality shall have power to lease roadsides and street margins vested in it for occupations on such terms and conditions and for such period as it may fix.
(4) No licence under sub-section (1) or a lease under sub-section (3) shall be granted if the construction or occupation is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of WP(C) NO. 39647 OF 2015 6 the road as such.
(5) The Government may, by notification, restrict and impose such control in, as they may think fit, the exercise by Municipalities in general or by any Municipality in particular, of the powers under sub-sections (1) and (3).
(6) On the expiry of any period for which a licence has been granted under this section, the Secretary, may, without notice, cause any construction put up under sub-section (1) or sub-section (2) to be removed, and the cost thereof shall be recovered in the manner provided in section 538 from the person to whom the licence was granted. "
7. On an analysis of the said provision, it is quite clear and evident that the Corporation is vested with ample powers to grant license subject to such restrictions and conditions as it may think fit for temporary erection of pandals and other structures in a public street vested in the Municipality or in any other public place the control of which is vested in the Municipality. Moreover, as per the Kerala Municipality Building Rules, 1999, in order to carry out any construction of any building, the Secretary of the Corporation had to approve the lay outs or plot sub divisions and the plans of the proposed work to the effect that the proposed work is in conformity with the provisions of these Rules. That was the only binding provision under the Rules 1999, so far as the construction for and on behalf of the Municipality/Corporation is concerned. Therefore, the contention advanced by the petitioner that the Corporation WP(C) NO. 39647 OF 2015 7 without securing any permission has carried out the construction, cannot be sustained. Moreover, petitioner has not pointed out anywhere in the writ petition, violation of any of the provisions of the Act, 1994 and the Rules, 1999, so as to impress upon this Court that there was arbitrary and illegal exercise of power on the part of the Secretary of the Corporation in carrying out the constructions.
8. Anyway, it is an admitted fact that only an open air stage with a roof using a temporary material was constructed by the Corporation probably for convenience when the meetings are conducted. No doubt, in order to put up temporary structures, a permission from the Secretary of the Corporation is required as per the provisions of the Kerala Municipality Act, 1994, the Kerala Municipality Building Rules, 1999, and so also later in accordance with the provisions of the Kerala Municipality Building Rules, 2019. In fact, the interim order was passed by this Court on 20.01.2016, wherein, while granting permission to a 3rd person to conduct a meeting which was scheduled earlier, to put up temporary shamiyana/tents from 21.01.2016 to 24.01.2016 as a special case, it was specifically directed that the programmes in future will abide by the interim order dated 04.01.2016, whereby, additional roofing except the roof over the dais in the open air stage in question was prohibited pending disposal of the writ petition.
WP(C) NO. 39647 OF 2015 8
9. The pleadings put forth and the contentions advanced would make it clear that the petitioner is more aggrieved by the temporary roof put up over the audience area since it was interfering with the view enjoyed by the petitioner and others in the commercial building. It is also quite clear and evident from the provisions of Act 1994 as well as the Rules referred to above that, without securing permission from the Municipality to put up temporary structures and permission from the Police to conduct meetings, no such exercise can be undertaken by anyone. But, it cannot be said that the area in question cannot be set apart by the Corporation to any organizations or individuals to stage protests or conduct meetings, failing which the general public would suffer due to the reason that if permission is not granted to occupy the said space, people would be using the foot path and the road margin for those purpose.
10. Taking into account the entire aspects on record, I am of the considered opinion that the writ petition can be disposed of with appropriate directions. The Corporation and the Secretary shall ensure that no organizations/individuals are using the property in question without securing permission from the Corporation. It is also made clear that no temporary structures shall be permitted in the property without securing permission from the Secretary of the Corporation. The Secretary shall ensure that any such permission granted shall not obstruct the free ingress and egress of the WP(C) NO. 39647 OF 2015 9 petitioner and others in the commercial building and that the meeting conducted is not causing prejudice to the visitors of the commercial shopping complex so as to interfere with the business conducted by the petitioner and others.
The writ petition is disposed of as above.
Sd/-
SHAJI P.CHALY JUDGE uu 01.07.2021 WP(C) NO. 39647 OF 2015 10 APPENDIX OF WP(C) 39647/2015 PETITIONER ANNEXURE P1 : COPY OF THE LEASE DEED.
P2 : COPY OF THE LICENSE ISSUED BY THE 1ST RESPONDENT CORPORATION TO THE PETITIONER.
P3 : COPY OF THE APPROVED PLAN OF THE OPEN AIR STAGE.
P4 : COPY OF THE REPLY DTD.31.10.2015 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.
P5 : COPY OF THE PHOTOGRAPHS OF THE STAGE.