VIMAL ARAKKAL Vs. CORPORATION OF COCHIN

JUDGEMENT

(1.) Writ Petition was filed by the appellant challenging Ext. P5 notice issued by the Corporation of Cochin directing him to remove the hoarding put up by him without the permission of the Corporation. It is pointed out that the existing hoarding put up without the permission of the Corporation causes danger to the life and property of the pedestrians and the vehicles. Ext. P5 notice was issued under S.275 as well as S.411 of the Kerala Municipalities Act. Complaining that the Corporation has no power under S.272 or under S.411 of the act to issue such a notice, Writ Petition has been preferred. Various contentions were raised before the learned Single Judge. Learned Single Judge found no merit in the contentions and rejected the Writ Petition. However, it was ordered that if the appellant submits a formal application, Corporation would take note of the same and regularise the construction.

(2.) Before the learned Single Judge Corporation has taken a reasonable stand that they would not take any steps for demolition of the hoarding if any application is made for regularisation and the same would be regularised subject to the specifications for installation of hoardings. Counsel for the appellant Sri. Govindh K. Bharathan took us through the various provisions of the Municipalities Act, particularly S.271 and 272.

(3.) Writ petitioner has put up a hoarding near the south western corner of Judges' Avenue near Kaloor. According to the Corporation, they have received several complaints from the general public and members of the Corporation Council with regard to the situation of the hoarding and the manner in which it has been installed. On receipt of the complaint, Engineering Department along with the Deputy Secretary of the Corporation visited the site and found that the hoarding was constructed without any precautionary measures and that it would cause imminent danger to the public. Under such circumstances they have issued Ext. P5 notice. Petitioner has stated that the hoarding was constructed in a private property after executing agreement with the owner of the property. Further it is also pointed out that the hoarding has been erected after the same is certified by the Chartered Engineer and following the precautions. Further it is stated that it is not dangerous to the public and the Corporation has no legal right to remove the said hoarding or to impose any tax. Further it is also the contention of the petitioner that Corporation has no right to assess the tax as per S.271 of the Kerala Municipality Act, 1994 and only if the petitioner fails to pay tax which has been assessed by the Corporation they have the right to initiate proceedings under S.272 of the Act to remove the hoarding. Petitioner also submitted that since tax has not been assessed under S.271 no proceeding could be initiated under S.272 of the Act. Petitioner made reference to the decision of this Court in Thomas Kurian v. Joseph Thomas ( 2002 (2) KLT 625 ).