In the case of Kumari Mohanam K.P. v. Corporation of Thiruvananthapuram & Others [MANU/KE/4276/2019], the High Court of Kerala clarified the mandatory steps that municipal authorities must follow before demolishing a structure.
Under Section 406 of the Kerala Municipality Act, 1994, the Secretary must adhere to the following due process:
1. Issuance of a Provisional Order
If the Secretary is satisfied that the construction, reconstruction, or alteration of a building (or the digging of a well) has been unlawfully commenced, carried out, or completed, they must first issue a Provisional Order under Section 406(1) of the Act.
2. Service of Notice and Show-Cause
As per Section 406(2), a copy of the Provisional Order must be served upon the owner or the person responsible for the work.
This must be accompanied by a formal notice requiring the individual to “show cause” within a reasonable specified timeframe as to why the order should not be confirmed.
3. Issuance of the Confirmation Order
Under Section 406(3), if the owner fails to show cause or if the explanation provided is unsatisfactory to the Secretary, the Secretary may confirm the provisional order or modify it as they see fit.
4. Execution of Demolition
The Confirmation Order is legally binding. If the person fails to comply with the terms of the confirmation order, the Secretary is empowered under Section 406(3) to personally cause the building (or part thereof) to be demolished or the well dismantled. The expenses incurred for the demolition are recoverable from the owner or the responsible person.
The Doctrine of Procedural Propriety
The High Court emphasized a fundamental principle of administrative law: when a statute prescribes a specific procedure for an action, that action must be done in that manner or not at all. All other methods are impliedly forbidden. This is based on the legal maxim: “Expressio unius est exclusio alterius” (The express mention of one thing excludes all others.)
If the law provides a specific path for demolition, the authorities cannot take shortcuts. Any deviation from this statutory procedure renders the demolition illegal.
In Conclusion
The Kumari Mohanam judgment serves as a vital check on administrative power, ensuring that municipal authorities strictly observe the “Right to be Heard” and follow statutory mandates before depriving a citizen of their property.
