Kerala High Court
K.A. Hassankutty vs V.J. Joseph on 25 June, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 16TH DAY OF JULY 2012/25TH ASHADHA 1934
WA.No. 1330 of 2012 ()
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AGAINST THE ORDER/JUDGMENT IN WPC.8254/2012 DATED 25/06/2012.
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APPELLANTS/RESPONDENTS 3 & 4 :
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1. K.A. HASSANKUTTY, AGED 83 YEARS,
S/O. ALI MOHAMMED, 23/345,
KALLARACKAL, CHERTHALA.
2. MOHANAN. P., AGED 52 YEARS,
S/O. PONNAPPAN ACHARI, 23/346, SURABHI COTTAGE,
KAMBIKKAL JUNCTION, CHERTHALA.
BY ADV. SMT.S.JASMINE.
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 :
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1. V.J. JOSEPH,
VANNIYAMPARAMBIL, CMC-2,
CHERTHALA, ALAPPUZHA -688 524.
2. CHERTHALA MUNICIPALITY.
REP. BY ITS SECRETARY,
CHERTHALA- 688 524.
3. SECRETARY,
CHERTHALA MUNICIPALITY,
CHERTHALA -688 524.
R1 BY ADV. MR.K.P. SATHEESAN.
R2 & R3 BY ADV. MR.JOBY CYRIAC, SC.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 16-07-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WA.No. 1330 of 2012
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A1 COPY OF THE APPEAL ALONG WITH PETITIONS FOR
DELAY CONDONATION AND STAY FILED BY THE
1ST APPELLANT BEFORE THE MUNICIPAL COUNCIL
DATED 28/06/2012.
ANNEXURE A1A COPY OF THE RECEIPT ISSUED ACKNOWLEDGING RECEIPT
OF ANNEXURE A1 FROM THE MUNICIPAL COUNCIL.
ANNEXURE A2 COPY OF THE APPEAL ALONG WITH PETITIONERS FOR
DELAY CONDONATION AND STAY FILED BY THE 2ND
APPELLANT BEFORE THE MUNICIPAL COUNCIL
DATED 28/06/2012.
ANNEXURE A2A COPY OF THE RECEIPT ISSUED ACKNOWLEDGING RECEIPT
OF ANNEXURE A2 FROM THE MUNICIPAL COUNCIL.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
MANJULA CHELLUR (Ag.CJ)
& A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
W.A.No.1330 of 2012
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Dated this the 16th day of July 2012
J U D G M E N T
MANJULA CHELLUR,Ag.CJ Heard learned counsel for appellants as well as respondent Municipality and party respondent. The appellants are admittedly the tenants in respect of two shop rooms bearing Nos.23/345 and 23/346 of Cherthala Municipality. It is not in dispute, on earlier occasion, the 1st respondent allegedly secured eviction orders on the ground available under Section 11(4) of the Kerala Buildings (Lease and Rent Control) Act. But, however, eviction orders were not executed. Now the question is whether the notice issued under Section 411 of the Kerala Municipality Act (hereinafter referred to as 'the Act') is justified or not. Section 411 of the Act reads as under:
411. Precautions in case of dangerous structures.- (1) Where any structure is deemed by the Secretary to be in a ruinous state and dangerous to the passers-by or to the occupiers W.A.No.1330/2012 2 of neighbouring structures, the Secretary may by notice require the owner or occupier of such structure to fence off, take down, secure, demolish or repair such structures, or fence off a part of any street or take such temporary measures as he deems fit to prevent danger, and the cost thereof shall be recoverable from the owner or occupier in the manner provided in section 538.
(2) Where immediate action is necessary, the Secretary shall, before giving such notice or before the period of such notice expires, cause to fence off, take down, secure, demolish or repair such structures, or fence off a part of any street or take such temporary measures as he deems fit to prevent danger, and the cost thereof shall be recoverable from the owner or occupier in the manner provided in section 538.
(3) Where in the opinion of the Secretary the said structure is imminently dangerous to the inmates thereof, the Secretary shall order the immediate evacuation thereof, and any person disobeying the order may cause to be removed if necessary, with the assistance by a police officer.
W.A.No.1330/2012 3
2. As a matter of fact, provision of law does not mandate a compulsory or necessary notice to the occupier of the building prior to the action contemplated under the Act. However, in the present case, landlord received notice as per Ext.P9 and the occupiers that is the appellants herein received notice as per Ext.P10. The issue is whether they could have challenged the said notices.
3. Apparently, a statutory appeal is provided under the Act. Though it was not taken recourse to, we note, subsequent to the disposal of the matter by the learned Single Judge, the appellants have filed an appeal before the statutory authority. Even otherwise, materials on record indicate that the appellants approached the learned Ombudsman wherein the learned Ombudsman directed the Municipality to issue notice under Section 411 of the Act and action was taken as per Ext.P7. This was in the year 2007. When the tenants were aware of the proceedings under Section 411 contemplated at the hands of the respondent Municipality, approaching this Court under Article 226 of the Constitution of India claiming violation of principles of natural justice, is not warranted. It is more so because of the W.A.No.1330/2012 4 pendency of a statutory appeal wherein all the contentions raised by the appellants can be looked into including the questions of fact.
With these observations, the writ appeal is disposed of.
(sd/-) (MANJULA CHELLUR, ACTING CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr 17/07/2012 W.A.No.1330/2012 5 W.A.No.1330/2012 6