KURIYAKOSE Vs. MUNICIPAL COUNCIL SHERTALLAI

JUDGEMENT

(1.) THE petitioner is a retail merchant and the occupant of building No. XIX/307 I within the Municipal limits of Shertallai. THE petitioner received on 22-11-1977 Ext. P1 notice dated 21-11-1977. H reads: No. J. 4327 (A)/1977. Municipal Office, Shertallai, Date: 21-11-1977. NOTICE A copy of the provisional order under S. 247 (1) of the kerala Municipalities Act is enclosed herewith. You are required to show cause, if any, within three (3) days of the receipt of this notice why the provisional order should not be confirmed (Sd.) Municipal Commissioner. To V. M. Kuriyakkose, Punnakkal Veedu, SMC XIX/307. PROVISIONAL ORDER UNDER S. 247 (1) OF THE KERALA MUNICIPALITIES ACT Whereas I am satisfied that Sri V. M. Kuriyakose, punnakkal Veedu, has constructed a building of Shertallai Municipality without obtaining the requisite permission as contemplated under S. 230 of the Kerala municipalities Act, 1960 I hereby require Shri V. M. Kuriakose to demolish the said construction within 24 hours of the receipt of this order and report compliance. (Sd.) Municipal Commissioner Copy to the Health inspector. " This notice was issued under S. 247 (1) of the Kerala municipalities Act, 1960 ('the Act' ). THE effect of this notice is that the petitioner was given three days' time from the date of receipt to show cause why the provisional notice issued under S. 247 should dot be confirmed. Accordingly the petitioner had in terms of Ext. P1 time till the evening of 25-11-1977 to show cause; and, the 2nd respondent was incompetent to confirm the provisional notice until the expiry of the said three days. Within the three days, viz. , on 24-11-1977 , the petitioner showed cause and Ext. R3 is his explanation, the relevant portion of which I shall extract: Admittedly Ext. R3 explanation of the petitioner was personally handed over by him to the 2nd respondent on 24-11-1977. It was then that he was given Ext. P3 which is dated 23-11-1977 reading as follows: No. J. 4327/ (A)/ 77. (SEALED) Municipal Office, Shertallai 23111977 NOTICE UNDER SEC. 247 (3) OF KERALA MUNICIPALITIES ACT A provisional order No. J. 4327 (A) dated 21-11-1977 under S. 247 (1) was served to Sri. V. M. Kuriakose, Punnakkal Veedu (building No. XIX/307) on 22-11-1977. In the above order it was directed to demolish the unauthorised construction. But Sri. Kuriyakose has neither complied with the lawful direction nor offered any explanation. Hence the provisional orders already issued is hereby confirmed. Sri. Kuriyakose is therefore required to demolish the unauthosised construction specified in the order dated 21-11-1977 within three (3) days of the receipt of this Notice failing which steps will be taken from this office to demolish the above structure at the risk and cost of Shri Kuriyakose. (Sd) Manager in Charge of Commissioner. To Shri. V. M, Kuriyakose, Punnakkal Veedu, XIX/307'

(2.) EXT. P3 is challenged by the petitioner on various grounds. It is contended that it was a malafide order; it was prematurely made and issued; it was violative of natural justice; and, it contravened S. 246 (2)and 247 of the Kerala Municipalities Act, 1960 (Act 14 of 1961 ).

(3.) EXT. P1 notice gave the petitioner three days' time to submit his explanation as to why the provisional order made under S 247 (1)should not be confirmed. The provisional order, if confirmed, was meant to require the petitioner to demolish the structure within 24 hours. The time element in the notice as well as in the provisional order is extremely significant, and indicative of a flagrant desire to flout the cardinal principles of natural justice. S. 247 speaks of reasonable time. By no stretch of imagination can three days be regarded as reasonable in matters of this kind. Whenever public officers invested with authority propose to act in abridgment of civil rights, they must, unless stated to the contrary in the statute under which they act, give persons likely to be affected by such acts, reasonable notice of the same. The concept of "reasonable" is relative. It is a question of degree, dependent on the facts and circumstances of each case. What may be reasonable in one may not be so in another Rules of natural justice vary from case to case There may arise exceptional circumstances calling for immediate action to save life and property, such as in the case of a building which is in imminent danger of falling, or catching fire, and the like. Calamities and catastrophes, such as war, earthquake, epidemics and the like, may also call for instantaneous action. In such cases, subject to statutory requirements, it may be permissible for the authorities to act on very short notice two days or even one day may not be unreasonable, dependent on the circumstances or even to dispense with notice altogether. There are innumerable cases of less urgency where there is no immediate danger to life and property, but where quick action is required in public interest, such as. for example, steps to abate public nuisance In such cases a week's notice may not be unreasonable. In other cases of public need no less important, but comparatively less urgent, as where the demolition of buildings is ordered to widen public roads or canals, or to construct water tanks, hospitals and the like, anything less than 10 days, subject to statute, may be unreasonable. Even in such cases, two weeks would indeed be fairer and more reasonable. In ordinary circumstances, however, notice shorter than two weeks is, in my view, unreasonable.