Kerala High Court
Kanakam vs The Kozhikode Corporation on 17 February, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941
WA.No.285 OF 2020
AGAINST THE JUDGMENT IN WP(C) 996/2020(Y) OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
KANAKAM,
AGED 60 YEARS, D/O. C. K. KURUP,
RESIDING AT ACE APARTMENTS,
CONVENT ROAD, KOZHIKODE - 673 001.
BY ADVS.
SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS/RESPONDENTS:
1 THE KOZHIKODE CORPORATION
REPRESENTED BY SECRETARY, CORPORATION BUILDING,
BEACH ROAD, KOZHIKODE - 673 032.
2 THE SECRETARY,
KOZHIKODE CORPORATION, CORPORATION BUILDING,
BEACH ROAD, KOZHIKODE - 673 032.
3 PUTHIYOTYKANDI ALI HAJI,
S/O. MAMMAD, RESIDING AT PUTHIYOTYKANDI HOUSE,
ELATHUR P. O., KOZHIKODE - 673 302.
4 M/S PENTIUM CONSTRUCTIONS
REPRESENTED BY ITS MANAGER, MUHAMMED ASHRAF,
MANANCHIRA TOWERS, A.G. ROAD, KOZHIKODE - 673 001.
ADV.SRI.B.G.HARINDRANATH FOR R4
ADV.SRI.G.SANTHOSH KUMAR
ADV.SRI.SANTHOSH MATHEW
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.285 of 2020
2
"C.R."
JUDGMENT
Dated this the 17th day of February, 2020 S.Manikumar, C.J.
Instant writ appeal is filed challenging the judgment in W.P. (C)No.996 of 2020 dated 3.2.2020, by which the writ court dismissed the writ petition filed by the appellant. The judgment reads thus:
"This court on the basis of the averments in this writ petition while issuing notice on motion on 15.01.2020 noticed that the 4th respondent, despite having undertaken to finish the renovation work within a specified period as contemplated under sub-section (2) of Section 408 of the Kerala Municipality Act 1994, did not complete so resulting into passing of the order Ext.P2 restraining the 4th respondent from carrying on further renovation.
Today learned counsel appearing on behalf of 4 th respondent submits that the petitioner has very conveniently suppressed the factum of the decision on the complaint by the concerned Municipality vide order dated 09.12.2019, which has been communicated to him also. The order aforementioned has been read out in vernacular language conveying that for the purpose of renovation there is no applicability of the Municipality Building Rules.
Having heard the learned counsel for the parties, I am of the view that if at all the petitioner had any grievance, his remedy lies elsewhere and not in the present writ petition for withholding of the information and particularly when complaint has already been filed, no further cause of action arises. This writ petition is accordingly dismissed."W.A.No.285 of 2020 3
2. Short facts leading to the appeal are that, appellant/writ petitioner and 4th respondent are tenants in the building owned by 3 rd respondent. Appellant is occupying a portion of the first floor of the building and the 4th respondent is occupying a room just above the room occupied by the appellant. Under the guise of renovating the room, the 4th respondent was putting up construction, which was causing great nuisance to the appellant. Following the complaint filed by the appellant, officers of the 1st respondent Corporation inspected the building and issued Ext.P1 show cause notice to the 3 rd respondent to demolish the unauthorised construction. The 3rd respondent gave a reply to the said notice stating that there is no violation. According to the appellant, the 1st respondent has not taken any action either to demolish the unauthorised construction or to abate nuisance. By Ext.P2 letter dated 21.6.2018, the Secretary, Kozhikode Corporation (2 nd respondent) informed the appellant that the unauthorised construction has been removed by the 3rd respondent. Thereafter also, the 4th respondent continued the activity of causing nuisance to the appellant. Pursuant to a complaint filed by the appellant before the 2 nd respondent to initiate proceedings against the 4th respondent, the 2nd respondent called for a meeting of the appellant and respondents 3 and 4. In the said meeting, W.A.No.285 of 2020 4 the 4th respondent undertook that the renovation work will be done only between 6 PM and 6 AM and that the work will be over by 15.7.2019. However, the 4th respondent did not complete the work. Thereafter the 2nd respondent by Ext.P4 notice dated 26.7.2019 called upon the 3 rd respondent to stop the renovation activities. Though the 2 nd respondent has issued Ext.P4 order, the 3rd respondent has not implemented the same and unilaterally granted a further time behind the back of the appellant. Under the said circumstances, appellant has approached this court by filing W.P.(C)No.996 of 2020 and after considering the rival submission, the writ court dismissed the writ petition.
3. Being aggrieved, instant writ appeal is filed inter alia on the following grounds:
"a] The learned single Judge has failed to understand and appreciate the case of the appellant in its proper perspective. Had it done so, it would have allowed the writ petition and directed the 1st and 2nd respondents to implement the order and abate the nuisance complained of by the appellant. b] The ground on which the relief is declined and writ petition is dismissed by the learned single Judge is palpably wrong and opposed to the factual matrix of the case. A reading of the documents marked in the case will justify the relief claimed herein.
c] The learned Judge has denied justice to the appellant in its hurry to dispose of the case. The learned Judge acted upon the submission of the respondent which has no nexus to the case W.A.No.285 of 2020 5 pleaded by the appellant and the relief sought by her. d] Respondents 1 and 2 are duty bound by the statute to abate nuisances exercising its power under Sections 408 & 449 of the Municipality Act. The complaint of the appellant is considered by them and action is initiated by issuing Exts.P3, P4 and P5. The prayer of the appellant in the writ petition is only to implement the order and abate the nuisance complained.
e] The proceedings pointed out by the counsel for the 4 th respondent whatever it may be, was not communicated to the appellant at the time of filing the writ petition and she had no knowledge of the same, that apart the said proceeding is no answer to the grievance or remedy for the relief sought by the appellant in the writ petition.
f] The appellant came to know about the above proceedings of the 1st respondent only from the court and thereafter went to the office of the 1st respondent and collected a copy of the same after the disposal of the writ petition. The said communication is not an answer to appellants grievance and more over contrary to the finding and proceedings as also against the undertaking made by the 4th respondent. It is pertinent to point out that (1) it relates to an inspection much prior to appellant's complaint (2) it is not the case of the appellant that the 4 th respondent is undertaking construction without obtaining building permit (3) it is the specific case of the appellant that the 4 th respondent is causing continued nuisance to the appellant by their work in the premises.
g] The learned Judge ought not to have accepted the submission of the counsel for the 4th respondent without production of the document relied and without pleadings on record as against the specific pleadings supported by documentary evidence of the appellant.W.A.No.285 of 2020 6
h] In the facts of the case the 4 th respondent admitted the nuisance caused by them and agreed to do the disturbing works only in night and complete the same in a time stipulated but not completed and got extension of time. Still it is continuing unabated. The relief sought is only to enforce the order and abate the nuisance by invoking the power under section 449 of the Municipality Act.
i] The judgment of the learned single Judge is opposed to facts on record and admitted circumstances, reliance on oral submission as against marked document is illegal and the case requires reconsideration. The judgment of the learned judge may be reconsidered or re appraised on the above as also on those that may be urged at the time of hearing."
4. Heard learned counsel for the parties and perused the material available on record.
5. Section 408 of the Kerala Municipality Act, 1994 reads thus:
"408. Order of stoppage of buildings or works in certain cases.-- (1) Where the erection of any building or the execution of any work has been commenced or is being carried on (but has not been completed) without obtaining the permission of the Secretary or in contravention of any decision of the Council or any of the provisions of this Act or any rule or bye-law made thereunder or any lawful direction or requisition given or made under this Act, or the rules or bye-laws, the Secretary may, without prejudice to any other action that may be taken under this Act, by order require the person at whose instance the building or the work has been commenced or it being carried on, to stop the same forthwith.
(2) Where such order is not compiled with, the Secretary W.A.No.285 of 2020 7 may require any police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified in the requisition, and such police officer shall comply with the requisition accordingly.
(3) After the requisition under sub-section (2) has been complied with, the Secretary may, if he thinks fit, require in writing the assistance of a police officer or depute by a written order an officer or employee of the Municipality to watch the premises in order to ensure that the erection of the building or the execution of the work is not continued and the cost thereof shall be paid by the person at whose instance such erection or execution was being continued or to whom notice under sub section (1) was given, and shall be recoverable from such person as an arrear of property tax under this Act."
6. Exts.P1, P2 and P5 addressed to the appellant would be relevant and they are as follows:
"Orders/Proceedings of the Secretary, Corporation of Kozhikode Order to stop and demolish the unauthorized construction made by Sri.Aliraj in building named Mananchira Tower in Division No.61 of Kozhikode Corporation
------------------------------------------------------------------------------------- No.T.P.5/107746/17 Kozhikode Dated 30.01.18.
-------------------------------------------------------------------------------------
Order It has come to our notice that Sri.Ali Haji is undertaking an unauthorised construction in Ward No.61 of Kozhikode Corporation, Nagaram Village. Accordingly a provisional order is passed under W.A.No.285 of 2020 8 Section 406(1) of Kerala Municipality Act to demolish the unauthorised construction immediately on receipt of this order. Details of the construction:
CRZ/KMBR/TP scheme it has come to our notice that there is violation of Rule 7 of the KMBR Rules in the on going construction at Mananchira Tower. The said construction is liable to be demolished.
Construction Violation
Laying of tiles on the eastern side of the Rule of the
2nd floor by removing the partition wall and KMBR
construction of a new bathroom on the passage
of the 2nd floor.
It is hereby informed to Sri. Ali Haji, Mananchira Tower that in case this provisional order is not complied with, action will be initiated under Sub Sections 3 and 4 of Section 406 of the Kerala Municipality Act.
Sd/-
Secretary"
********** "T.P.5/107746/17 Kozhikode Municipal Corporation Kozhikode Dated 21.06.2018 NOTICE Sub: Town Planning Department, Kozhikode Corporation - Action taken regarding complaint of un-authorised construction regarding. Ref:- Complaint No.P2 58075 filed by Smt. Kanakam before the Public complaint redressal forum of the Honourable District Collector. The officials of the Kozhikode corporation on the basis of a complaint filed by Smt. Kanakam conducted an inspection of a building by name W.A.No.285 of 2020 9 Mananchira Tower situated near Nalanda Auditorium within the jurisdiction of Kozhikode Corporation. It was noticed that the owner is undertaking the activity of laying tiles after demolition of the intervening wall and that a new bathroom is being constructed on the varandah of the second floor. The said construction is in violation of Rule 7 of the Kerala Municipality Building Rules. Accordingly a notice was issued to the party on 30.1.2018. The owner on receipt of the notice has by reply No. T.P.5/13936/18 has replied that only interior work is going on in the building. Thereafter the authorities upon conducting an inspection has reported that the unauthorised construction made on the eastern side of the pathway has been demolished. The above fact is herewith intimated to you.
Sd/-
Executive Enginner Kozhikode Corporation"
********** "TP5/107746/17 Kozhikode Municipal Corporation Kozhikode Dated 21.11.2019 NOTICE Sub: Hearing conducted by the Town Planning Department of Kozhikode Corporation on 13.11.2019 - Reg.
Ref:- Hearing conducted on 13.11.2019.
Sir, Sri.Ahmed appeared before the Secretary representing M/s.Pentium constructions, 2nd Floor, Mananchira Towers situated within the W.A.No.285 of 2020 10 jurisdiction of Kozhikode Corporation. It was informed that no structural work is being done that and only interior works are being undertaken. He says that all the main works involving use of heavy materials are over and no vibration work is being undertaken. What is remaining is only fixing of plywood and only the sound of nailing the plywood or drilling the same will be there. He also assured that the said work will be over within 30 days. The said information is given to you. If you have any objection to this suggestion, you can do so within 3 days of receipt of this notice, failing which it will be considered that you have no objection in the matter.
Sd/-
Secretary, Corporation Encl.
Copy of the notes of hearing of Sri.Ahmed in the Chamber of the Secretary on 19.11.2019."
7. Annexure A proceedings of the Secretary, Kozhikode Corporation (2nd respondent) dated 9.12.2019 reads thus:
"Proceedings of the Secretary, Kozhikode Municipal Corporation (Present: Binu Francis) Kozhikode Municipal Corporation - Town Planning Department - Complaint filed by Smt.Kanakam - Reg.
------------------------------------------------------------------------------------ TP 9-107746/16 Municipal Corporation, 09.12.2019
------------------------------------------------------------------------------------ Ref:- 1. Complaint by Smt. Kanakam
2. Report dated 24.07.2013 of the overseer's concerned order.W.A.No.285 of 2020 11
ORDER The overseer concerned conducted an inspection of the building which was the subject matter of the complaint filed by the Complainant alleging that unauthorised construction is being carried out in the 2nd floor of the building situated in Revenue Ward No.7 of Electoral Ward 61 of the Kozhikode Municipal Corporation. On inspection it is seen that M/s. Pentium Constructions Pvt. Ltd. is doing interior work in the 2nd floor of the building. No permission is required under the Kerala Municipality Building Rules for doing interior works. Therefore no action can be taken on the complaint made by Smt. Kanakam, since the said complaint is without any substance which does not require any decision to be taken by the Corporation, the complaint is herewith closed and ordered accordingly. You are herewith informed regarding the disposal of your complaint.
Sd/-
Secretary, Kozhikode Municipal Corporation"
8. It is the contention of the learned counsel for the appellant that by virtue of the powers conferred under Section 449 of the Kerala Municipality Act, 1994, the Secretary is vested with ample powers to take actions against party respondents. Section 449 of the Act 1994 reads thus:
"449. Abatement of nuisance from factory, workshop etc.--
(1) Where any factory, workshops, workplace or machinery causes nuisance, which in the opinion of the Secretary, is by reason of a particular kind of fuel being used or by reason of the noise or vibration created, or discharge of poisonous gas or emission, of foul W.A.No.285 of 2020 12 odour or smoke or dust, the Secretary may direct the person in charge of such factory or workshop or workplace or machinery for the abatement of such nuisance within a reasonable time.
(2) The Council may, if required, obtain expert opinion regarding the assessment of nuisance or its abatement at the cost of the owner of the concerned factory or workshop or workplace or the person in charge of them.
(3) If there is a wilful default in the implementation of such direction or in the existing circumstances the abatement of nuisance is found impracticable, the Secretary may prohibit the working of the factory or workshop or workplace or machinery until necessary steps are being taken satisfactorily by the person concerned for the abatement of nuisance."
9. Going by the provision relied on by the learned counsel for the appellant, we are of the view that the said provision is included in Chapter XX of the Act 1994, dealing with grant of licenses to Industries, Factories, Trades, Entrepreneurship Activities and Other Services and therefore, Section 449 will not apply to the facts of this case, for the reason that the principles of ejusdem generis would apply and the interior work done to a building cannot be related to a work carried on by an industrial establishment. In this regard reference can be made to few decisions.
(i) In Mahant Sankarshan Ramanuja Das Goswami, etc v. State of Orissa and Another reported in AIR 1967 SC 59, the Hon'ble Apex W.A.No.285 of 2020 13 Court, at paragraph 14, held as follows:
"14. Learned counsel for the appellants also urged, through somewhat faintly, that the ejusdem generis rule should be applied to the definition of "estate" in Art. 31A(2)(a) as also to the corresponding new definition in the Abolition Act. This argument proceeds upon an assumption for which there is no foundation. The ejusdem generis rule is applicable where as wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words. This rule has hardly any application where certain specific categories are 'included' in the definition. The ejusdem generis rule may be applicable to the general. words "other similar grant", which would take their colour from the particular categories, "jagir, inam, or muafi", which precede them, but the word "inam" is not subject to the same rule. Once it is held that inams of any kind were included, it makes little difference if the inams were of lands and not of whole villages. So also the fact that the holders of such inams cannot be described as intermediaries, or that they comprised both the melwaram and the kudiwaram rights. Such a distinction would have significance, if the law abolished only intermediaries and not inams which it did. ......."
(ii) In Rajasthan State Electricity Board, Jaipur v. Mohan Lal and Others reported in AIR 1967 SC 1857, at paragraph 4, the Hon'ble Apex Court held as follows:
"4. In our opinion, the High Courts fell into an error in applying the principle of ejusdem generis when interpreting the expression " other authorities" in Art. 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or -category running W.A.No.285 of 2020 14 through the bodies already named. Craies on, Statute Law summarises the principle as follows :-
"The ejusdem generis rule is one to be applied with caution and not pushed too far........ To invoke the, application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus."* *Craies on Statute Law, 6th Edn., p. 181.
Maxwell in his book on 'Interpretation of Statutes' explained the principle by saying : "But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words .... Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrines."
**Maxwell on Interpretation of Statutes, 11th Edn. pp. 326, 327. In United Towns Electric Co., Ltd. v. Attorney-General for Newfoundland(5), the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species- for example, water rates-does not constitute a genus. In Art. 12 of the Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislatures of the Union and the States, and local authorities. We are unable to find any common genus running through these named bodies, nor can these W.A.No.285 of 2020 15 bodies be placed in one single category on any rational basis. The doctrine of ejusdem generis could not, therefore, be, applied to the interpretation of the expression "other authorities" in this article."
(iii) In Commissioner of Income Tax, Kolkata v. SMIFS Securities Limited reported in (2012) 13 SCC 488, at paragraph 8, the Hon'ble Apex Court held as follows:
"8. We quote hereinbelow Explanation 3 to Section 32(1) of the Act:
"Explanation 3.-- For the purposes of this sub-section, the expressions 'assets' and 'block of assets' shall mean--
[a] tangible assets, being buildings, machinery, plant or furniture;
[b] intangible assets, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature."
Explanation 3 states that the expression "asset" shall mean an intangible asset, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature. A reading the words "any other business or commercial rights of similar nature" in clause (b) of Explanation 3 indicates that goodwill would fall under the expression "any other business or commercial right of a similar nature". The principle of ejusdem generis would strictly apply while interpreting the said expression which finds place in Explanation 3(b)."
(iv) Paragraphs 9 to 11, in Holostick India Limited v. Commissioner of Central Excise, Noida reported in (2015) 7 SCC 401, are relevant, which read thus:
W.A.No.285 of 202016
"9. We are afraid we are not able to agree with the said submission. It is clear that printed books, newspapers and pictures, manuscripts, typescripts, maps and plans of all kinds, are included within this entry whether they further the public interest in knowledge being disseminated or not. In fact, it becomes clear from a reading of the Explanatory Notes to 'HSN' that this Heading would include a large number of 'obvious products' which are set out in this Explanatory Note as follows:
"The heading includes the following in addition to the more obvious products:
(1) Advertising matter (including posters), year books and similar publications devoted essentially to advertising, trade catalogues of all kinds (including book or music publishers' lists, and catalogues of works of art) and tourist propaganda.
Newspapers, periodicals and journals, whether or not containing advertising material, are however excluded (heading 49.01 or 49.02, as appropriate).
(2) Brochures containing the programme of a circus, sporting event, opera, play or similar presentation.
(3) Printed calendar backs with or without illustrations. (4) Schematic maps.
(5) Anatomical, botanical, etc., instructional charts and diagrams.
(6) Cinema, theatre, concert, railway and other tickets. (7) Microcopies on opaque bases of the articles of this Chapter. (8) Screens made by printing a film of plastics with letters or symbols to be cut out for use in design work.
Such screens simply printed with dots, lines or squares are excluded (Chapter 39) (9) Maximum cards and illustrated first-day covers not bearing postage stamps (see also Part (D) of the Explanatory Note to heading 97.04).
W.A.No.285 of 202017 (10) Self-adhesive printed stickers designed to be used, for example, for publicity, advertising or mere decoration, e.g., 'comic stickers' and 'window stickers'.
On a reading of the various products outlined herein, it is obvious that they include a large number of products which have absolutely nothing to do with disseminating knowledge.
10. The other argument of Shri Radhakrishnan is that the expression 'other products of the printing industry' should be read ejusdem generis with the three expressions preceding these words, namely, 'printed books, newspapers, pictures'.
11. We do not find any genus in any of these expressions. Indeed, it is clear that the expressions "manuscripts, typescripts and plans" which are also part of the Heading also do not reveal that there is any one genus to which all these items can be attributed. All these expressions speak of printed matter."
10. It is well settled that rule of ejusdem generis applies when statute enumerates the specific words, subjects of enumeration constitute a class or category, that class or category is not exhausted by the enumeration, the general terms follow the enumeration and when there is no indication of a different legislative intent. (see the judgment of the Apex Court in Grasim Industries Limited v. Collector of Customs, Bombay [(2002) 4 SCC 297]
11. In the Principal Secretary, Department of Labour and Ors. v. Om Dayal Educational & Research Society and Ors. (Manu/WB/3042/2019), at paragraph 16, a Hon'ble Division Bench of the W.A.No.285 of 2020 18 High Court of Calcutta held as follows:
"16. As would be gleaned from these learned authorities, the rule of ejusdem generis is not to be applied inflexibly and invariably. It is a rule that operates only to give us a rebuttable presumption that the words of the statute are restricted in application to a certain 'genus' of things because the statute is not able to exhaustively provide all the elements that would conceivably fall within that genus. In other words, the rule of ejusdem generis restricts interpretation only when the words of a statute are categorical in their application and it is cumbersome, impossible, unnecessary or imprudent to seek to enumerate all the constituents of the category to which the statute is made applicable. Even then, the application of the rule must be appreciative of the context of the genus and the enumeration of the specie. The rule of ejusdem generis does not apply when the words of a statute seek not to provide a category to which it will apply but merely provide a non-exhaustive list of the things to which the statute will apply. That apart, the rule of ejusdem generis cannot contradict legislative intent and must either give way to a purposive interpretation if such an interpretation is found to run contrary to the rule or be applied in consonance with the purposive interpretation of the statute. ........."
12. Reading of the provision makes it clear that in the case of interior works, in the second floor of the building, no permission is required. Action has already been taken for the unauthorised construction. After taking note of the inspection report submitted by the Overseer, the Secretary, Kozhikode Corporation (2nd respondent) has rejected the complaint. Though the appellant has assailed the judgment W.A.No.285 of 2020 19 on various grounds, for the reason stated supra, we are not inclined to interfere with the same.
Writ appeal fails and is accordingly dismissed.
Sd/-
S.Manikumar, Chief Justice Sd/-
Shaji P.Chaly Judge vpv W.A.No.285 of 2020 20 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A A TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT ALONG WITH THE ENGLISH
TRANSLATION.
/TRUE COPY/
P.A. TO JUDGE