P.A. Kunjumohammed v. State of Kerala represented by Secretary to Government, Revenue Department; Fort Kochi Revenue Division; Mulavukadu Grama Panchayat; Village Officer Mulavukadu; Janaki; Sujatha T.E.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938** **WP(C).No. 32405 of 2016 (A) ----------------------------** ## **PETITIONER(S):** ## **-------------** **P.A. KUNJUMOHAMMED AGED 70 YEARS, S/O.LATE ABOOBACKER, POTHADY HOUSE, PONNARIMANGALAM, MULAVUKAD P.O.** **BY ADV. SRI.T.M.ABDUL LATHEEF** ## **RESPONDENT(S): --------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM-1.** **2. REVENUE DIVISIONAL OFFICER FORT KOCHI - 682 504.** **3. VILLAGE OFFICER MULAVUKADU VILLAGE, MULAVUKADU -682 504.** **4. MULAVUKADU GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MULAVUKADU - 682 504.** **5. JANAKI, W/O.LATE ITTAMAN THANDASSERY HOUSE, MULAVUKAD, ERNAKULAM - 682 504.** **WP(C).No. 32405 of 2016 (A)** **6. SUJATHA T.E., D/O.ITTAMAN & W/O.K.A.MOHANDAS THANDASSERY HOUSE, MULAVUKAD, ERNAKULAM -682 504.** **R1 TO R3 BY SPL. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANSAR R4 BY ADVS. SRI.ABRAHAM P.GEORGE SRI.K.VINODKUMAR (707/89) SMT.M.SANTHY SMT.M.D.BEENA R5 & R6 BY ADVS. SRI.M.K.DILEEPAN SRI.DEEPAK T.NEDUNGADAN SMT.P.SUMITHRA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 32405 of 2016 (A) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------P1: TRUE COPY OF THE JUDGMENT IN A.S.NO.253 OF 2007 OF THE DISTRICT COURT, ERNAKULAM DATED 20.12.2013 P2: TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 24.06.2016 P3: TRUE COPY OF THE NOTICE NO.A5-4945/16 DATED 20.09.2016 ISSUED BY THE 4TH RESPONDENT. P4: TRUE COPY OF THE OBJECTION DATED 30.09.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. P5: COPY OF THE PHOTOGRAPH. RESPONDENT(S)' EXHIBITS : -----------------------** **EXT.R4(a): COPY OF THE ORDER NO.D-4309/16/LDIS DT 7/7/2016 ISSUED BY SUB COLLECTOR, FOR KOCHI - R2 TO R4. EXT.R4(b): COPY OF THE REPORT NO.A5-5139/2016 DT 5/8/2016 SUBMITTED BY ASST. ENGINEER, LSGD MULAVUKAD. ANNEXURE R2(a): COPY OF LETTER NO. D-4309/16/L.DIS. DT 7/7/2016 OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI ADDRESSED TO THE SECRETARY, MULAVUKAD GRAMA PANCHAYAT** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **SHAJI P. CHALY, J. ------------------------------W.P.(C)No.32405 of 2016 ------------------------------Dated this the 8[th] day of December, 2016** **J U D G M E N T -------------------** Petitioner is in possession of 4 cents of property upon which a building is situated constructed by the father of the petitioner, even according to the petitioner 80 years back. The building have numbers 9/181, 9/182 and 9/183 of Mulavukadu Grama Panchayat. A complaint was filed by one of the residents of the Panchayat before the Revenue Divisional Officer, pointing out that the building belonging to the petitioner is standing in a dangerous condition and necessary action shall be taken in order to demolish the same to avert any danger to the public. The Revenue Divisional Officer, evident from Ext.P2 has directed the Village Officer to conduct an enquiry. The Village Officer conducted an enquiry and submitted Ext.P2 report. Thereafter, what is discernible from the pleadings and documents is that, the Revenue W.P.(C)No.32405 of 2016 2 Divisional Officer has forwarded the matter to the 4[th] respondent Panchayat. Panchayat has issued Ext.P3 by which, petitioner was directed to demolish the building and report the matter to the Panchayat within seven days. Thereupon, petitioner has submitted Ext.P4 representation before the Panchayat. According to the petitioner, no action was initiated by the Panchayat, and the Panchayat is taking necessary steps to demolish the building, if done will cause irreparable loss and damages to the petitioner. These are the circumstances pointed out by the petitioner to secure relief as sought for in the writ petition. 2. Fourth respondent has filed a counter affidavit refuting the allegations and statements made by the petitioner in the writ petition and affirms that the building is standing in a dangerous condition and due to the old age of the building it can cause danger to the public and therefore, nothing wrong in issuing Ext.P3 order by the Panchayat to the petitioner to demolish the building. Second respondent has also filed a statement almost in W.P.(C)No.32405 of 2016 3 similar lines and point outs the dilapidated condition of the building possessed by the petitioner. These are the background facts available for taking a decision in the writ petition. 3. The paramount contentions advanced by the learned counsel for the petitioner is that, he was not provided with an opportunity of hearing before passing Ext.P3 order. Apparently, Ext.P3 order is a notice directing the petitioner to demolish the structure and report the matter to the Panchayat. When the petitioner is in possession and enjoyment of a building, and if the Panchayat felt that the building is situated in a dangerous condition, and it will cause danger to the public at large, necessarily a notice ought to have been issued by the Panchayat by providing an opportunity of hearing to the petitioner. That process is not undertaken by the Panchayat, which according to me, is in absolute violation of principles of natural justice. Since, the owner and possessor of the building is entitled as of right to get an opportunity of hearing before an adverse order is passed W.P.(C)No.32405 of 2016 4 against him under the provisions of Kerala Panchayat Raj Act, 1994. 4. Learned counsel for the petitioner submitted that unlike Section 411 of the Municipal Corporation Act, there is no corresponding provision under the Kerala Panchayat Raj Act enabling the Panchayat to undertake a process of demolition of a building standing in a dangerous condition. 5. Learned counsel for the respondents submitted that as per Section 239 of the Kerala Panchayat Raj Act, Panchayat is vested with ample powers to protect the life of the public at large and if a building is situated in a dangerous condition the said provision can be invoked in order to demolish the building by issuing necessary orders to its owner. Learned Government Pleader also brought my attention to the judgment of this Court in **Sasidharan Pillai v. The Secretary, Thamarakulam Grama Panchayat and others 2007(1) KLJ 45** to canvass the said proposition. On a reading of the proposition of law laid down, I find that, the Panchayat is vested with ample W.P.(C)No.32405 of 2016 5 powers under Section 239 of the Kerala Panchyat Raj Act to take necessary action, if it is found that a building is standing in a dangerous condition causing threat to the public at large. However, Ext.P3 order issued, without providing an opportunity of hearing to the petitioner cannot be sustained under law, as I pointed out earlier. Therefore, I set aside Ext.P3 order being arbitrary and illegal, and direct the 4[th] respondent Panchayat to take a decision in the subject matter after providing an opportunity of hearing to the petitioner. In order to enable the 4[th] respondent Panchayat to proceed with the matter, there will be a direction to the petitioner to appear before the Panchayat at 10.30 a.m. on 21.12.2016, and the Panchayat shall take necessary steps to provide sufficient opportunity of hearing to the petitioner, if required after receiving an additional representation also, conduct necessary investigation in the subject matter and then take a final decision within a month therefrom. W.P.(C)No.32405 of 2016 6 Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY, JUDGE.** rmm/ 13/12/2016 _[ True copy]_ _P.A. to Judge_