In 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 building, under Section 406 of the Kerala Municipality Act, 1994 (KMA).
In the process of demolition, the Secretary must adhere to the following due steps or procedures without fail:
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, he/she must first issue a Provisional Order under Section 406 (1) of the KMA read with Rule 90 (2) of the Kerala Municipality Building Rules, 2019 (KMBR).
Service of Provisional Order and Notice to Show-Cause
As per Section 406(2) of the KMA, a copy of the Provisional Order issued by the Secretary of the Municipality must be served upon the owner or the person responsible for the work.
This provisional must be accompanied by a formal notice under Rule 90 (2) of the KMBR, requiring the individual to bring the building in conformity with the plan or to “show cause” within a reasonable timeframe as to why the order should not be confirmed. The provisional order and show cause notice can be issued as a single combined communication, as observed by the High Court in Scaria V J v Ettumanoor Municipality [2022:KER:29334].
If any reply to the notice is received, what is stated in the reply should be considered while confirming or modifying the demolition order.
And if no cause could be shown for deviating from the building plan, the owner or person responsible is bound to make alteration in conformity with the approved plan.
Provisional Order may Include Show Cause Notice
The provisional order may include show cause notice as well. Both can be issued as a single combined communication. This is what the High Court observed in Scaria V J v Ettumanoor Municipality [2022:KER:29334].
Issuance of the Confirmation Order
Under Section 406 (3) of the KMA, 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 appropriately.
While confirming the demolition order the Secretary should ensure that the confirmation order should not include anything that is not already stated in the provisional order.
That means the confirmation order should conform to the matter contained in the provisional order. If any new item that is not included in the provisional order is included in the confirmation order, the order will be set aside by the Local Self Government Tribunal or the High Court.
Execution of Demolition
The Confirmation Order is legally binding on the person responsible for illegal construction.
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.)
Strict Procedures Should be Followed for Demolition
If the law provides a specific path or procedure for demolition, the authorities cannot take shortcuts or deviate from it. 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.
KM Act section 406 (3) പ്രകാരമുള്ള ഉത്തരവിന് ട്രൈബ്യൂണൽ സ്റ്റേ നിലനിൽക്കുന്ന സാഹചര്യത്തിൽ KM Act section 242 പ്രകാരം നടപടികൾ സ്വീകരിക്കുന്നതിന് തദ്ദേശ സ്ഥാപനങ്ങൾക്ക് ആവുമോ?തേൻ നിലനിൽക്കുന്ന സാഹചര്യത്തിൽ 242 പ്രകാരമുള്ള നടപടികൾ സ്വീകരിച്ചാൽ ബന്ധപ്പെട്ട സെക്രട്ടറിക്കെതിരെ എന്ത് നടപടിയാണ് ഉണ്ടാവുക
If the stay of the Tribunal is exclusively for demolition or dismantling of unlawfully constructed building, the Secretary has enough powers to levy tax for the unlawful building, as specified in the law.