IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30564 of 2009(M)
1. SIVAPRASAD S.SHENOY
... Petitioner
Vs
1. THE STATE OF KERALA,REPRESENTED BY THE
... Respondent
2. THE DISTRICT SUPERINTENDENT OF POLICE
3. THE CIRLCE INSPECTOR OF POLICE
4. KISHAKKEVEETTIL VIJAYAN
5. THE SECRETARY
For Petitioner :SRI.T.P.KELU NAMBIAR (SR.)
For Respondent :SRI.M.SASINDRAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :02/03/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P(C). NO. 30564 OF 2009 M
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Dated this the 2nd March, 2010
JUDGMENT
K.M. Joseph, J.
Petitioner seeks the following reliefs:
“(i) Issue a writ of mandamus or any other
appropriate writ, order or direction, directing the
third respondent not to interfere in the dispute
between the petitioner and the fourth respondent in
regard to the concrete sunshade of the petitioner’s
building bearing number 626 and 627 of Ward
No.21 of Payyannur Municipality which matter is
pending consideration before the 5th respondent
Municipality.
(ii) Issue a writ of prohibition or any other
appropriate writ, order or direction, restraining the
third respondent from interfering with the dispute
in regard to the sunshade of petitioner’s building
bearing Nos.626 and 627 of Ward No.21 of
Payyannaur Municipality.”
WPC.30564 OF 2009 M 2
2. Briefly put, the case of the petitioner is as follows:
Petitioner is the absolute owner in possession of the
buildings bearing Nos.626 and 627 in Ward No.21 of Payyannur
Municipality. It was an old building with tiled roof. There was
a roofed sunshade on the western side of the building. Due to
old age, the roofed sunshade on the western side was about to
fall down. In the year 2004, the petitioner replaced the roofed
sunshade by a thin layer of concrete slab. He was served with a
notice by the fifth respondent, Secretary of the Payyannur
Municipality. Petitioner submitted a detailed a reply. The
necessary fee for regularisation was also remitted by the
petitioner. Fourth respondent purchased the building on the
western side in the year 2006. He submitted a complaint in
2009 to the Secretary about the sunshade protruding into his
property. The Secretary issued Ext.P1 notice. Petitioner
submitted Ext.P2 objection. He received Ext.P3 notice to which
he submitted Ext.P4. The matter is pending consideration
before the fifth respondent. While so, the third respondent
WPC.30564 OF 2009 M 3
Circle Inspector of Police came to the shop room of the
petitioner and directed the petitioner to demolish the concrete
sunshade within two days and if it is not removed, it will be
demolished on his supervision and the petitioner will be falsely
implicated in criminal case. It is stated that the fourth
respondent exerted political influence on the third respondent.
Affidavits have been filed by the fourth respondent.
3. We heard the learned counsel appearing for the parties.
Learned counsel for the petitioner reiterated his contentions.
Learned counsel for the fourth respondent would submit that the
construction was made by the petitioner in 2009, and not in
2004, for which the fourth respondent filed Ext.R4(a) complaint.
He further points out Sections 406, 408, 550 and 551 of the
Kerala Municipality Act (hereinafter referred to as the Act), to
contend that the police have authority in the matter. Learned
counsel for the Municipality would submit that the matter is
pending consideration before the Municipality. Learned
Government Pleader would submit that the petitioner was called
WPC.30564 OF 2009 M 4
to the police station and the third respondent will not interfere in
the matter.
4. We perused Section 406 of the Act. Section 406
empowers the Secretary to order demolition/alteration of
building work unlawfully commenced, carried on or completed.
Section 408 on which the fourth respondent relies on, refers to
order of stoppage of buildings or works in certain cases. We
notice that under sub-section (2), if the order to stop the work
passed by the Secretary is not complied with, the Secretary may
require any Police Officer to remove such person and all his
Assistants and workmen from the premises within the said time
as may be specified in the requisition and such Police Officer
shall comply with the requisition accordingly. Sub-section (3)
also proceeds on the premise of a requisition under sub-section
(2) being breached, leading to a request in writing for assistance
of of the Police Officer. It is not in dispute that there was no
such requisition by the Secretary in the facts of this case, at
present. Therefore, no reliance can be placed either on Section
WPC.30564 OF 2009 M 5
406 or Section 408. Section 550 of the Act which is next relied
on by the counsel for fourth respondent, deals with the duties of
Police Officers. It inter alia provides as follows:
“550. Duties of police officer.- (1) It shall be
the duty of every police officer-
(a) to communicate without delay to the
proper officer of a Municipality any information
which he receives of the design to commit or of the
commission of any offence under this Act or any
rule, bye-law or regulation made thereunder; and
(b) to assist the Chairperson, the Secretary or
any Officer or employee of a Municipality
demanding his aid for the exercise of any power
vested in them under this Act in or any rule, bye-law
or regulation made thereunder.
(2) Any Police Officer who omits or refuses to
perform any duty imposed on him by this Act shall
be deemed to have committed an offence under
clause (d) of Section 41 of the Kerala Police Act,
1960 (5 of 1960).”
There is no case for the fifth respondent Secretary that any
WPC.30564 OF 2009 M 6
demand has been made for the assistance of third respondent for
the exercise of any power vested in the Chairperson, Secretary
or any Officer or employee of the Municipality. Therefore,
Section 550 of the Act cannot clothe the third respondent with
power to interfere in the matter between the petitioner and
fourth respondent. Section 551 of the Act proclaims the power
of the Police Officer to arrest persons. It speaks about the power
of a Police Officer to arrest a person in the following
circumstances:
“551. Power of Police Officer to arrest
persons.-
(1) Where any Police Officer sees any person
committing an offence against any of the provisions
of this Act or of any rule or bye-law made
thereunder, he shall, if the name and address of such
person are unknown to him and if the said person,
on demand, declines to give his name and address or
gives a name and address, which such Officer has
reason to believe to be false, arrest such person.”
WPC.30564 OF 2009 M 7
It comprises of two elements. A Police Officer must see a
person committing an offence against any provisions of the Act
or of any Rule or of any Byelaw made thereunder. Further, he
must make a demand about the name and address and if it is
declined or if there is reason to believe that the name and
address given is false, arrest may be made. We do not see how
the said provision can be invoked in the facts of this case by the
third respondent. Therefore, the upshot of this discussion is that
the third respondent has no authority at present to interfere in the
matter between the petitioner and the fourth respondent.
Admittedly, the matter is pending consideration before the
Municipal Authorities. In such circumstances, we dispose of the
Writ Petition as follows:
The third respondent is interdicted from interfering with
the matter in connection with the construction of the sunshade
by the petitioner. We further make it clear that, however, this
does not mean that the proceedings which are pending under the
Kerala Municipality Act are not to be taken to its logical and
WPC.30564 OF 2009 M 8
legal conclusion. We are necessarily not pronouncing on the
powers of the third respondent when the situation may change
on account of the orders as may be passed by the Municipal
Authorities.
Sd/=
K.M. JOSEPH,
JUDGE
Sd/=
M.L. JOSEPH FRANCIS,
JUDGE
kbk.
// True Copy //
PS to Judge