Whether an Unauthorized Building is Entitled to Tax Exemption if it is otherwise Entitled :  Unanswered Questions

(By V.N. Haridas, Advocate High Court of Kerala)
E-mail : slclawyers@gmail.com   Mob. 9497065695

The recent Judgment of the Hon’ble High Court of Kerala with respect to the imposition of property tax raises certain questions.₁ This article is to raise the questions that may have escaped the attention of the Court while considering the Writ Petition. The facts of the case are as follows:

The petitioner is the Manager of an Aided Upper Primary School for which the Chief Town Planner granted approval of layouts to reconstruct a 3-storied building by adding one more floor with an extent of 3100.84 square metres of plinth area. The petitioner school was demanded by the Municipal Corporation to pay property tax during the period when the constructions were unauthorized constructions and not regularized. The petitioner contended that they are entitled to get an exemption from payment of taxes under S.235(b)of the Kerala Municipality Act, 1994. The Hon’ble Court, interpreting Section 242, concluded that, Rule 3 and Rule 20(3) of the Surcharge Rules, 2011 stipulate that the demand is possible  only when the owner is liable to pay the property tax and not when it is exempted under the provisions of the Act and S.242 speaks about the liability of the owner who constructed the building unlawfully to pay the sum of property tax that would have been paid, had the said building been constructed unlawfully and in the instant case there is no liability of property tax on the building in question and the fact that the petitioner is not liable to pay the property tax is evident from the fact that for the rest of the floors except one.

Where unauthorized construction was alleged and which was subsequently regularized, there is no demand to pay the property tax. The Court, accordingly holds that the petitioner is not liable to pay the property tax as it is exempted from payment of property tax under S.235 (b) of the Act. The question remains unanswered: When is a building exempted from the property tax? If a building was constructed that remains unauthorized for the reasons envisaged under S.242, whether the Municipality imposes a tax under S.242 or it will be exempted under S.235. As per the judgment, tax cannot be imposed under S.242 for the reason that the building in question is “supposed to be “exempted” under S.235 of the Act.

The fundamental issue herein is that to be entitled to an exemption under S.235, the building must be “used” for any of the purposes enumerated under S.235 of the Act now when a building can be made available for “use” as per the Municipality Act. According to R.4(2) of the Kerala Municipality Building Rules, 2019, no person shall construct, reconstruct, make additions extensions, or alterations to any building or cause the same to be done without first obtaining a building permit from the Secretary. R.4(3) further states no person shall change the occupancy of an existing building from one group to another without first obtaining a permit from the secretary.

After completing the construction in accordance with the approved plan and in compliance with the building rules, the person has to apply for an occupancy certificate. The permit shall be issued in accordance with the occupancy of the building. Accordingly, the building can be used only after obtaining an occupancy certificate and numbered the building. As per S.242(5) of the Municipality Act, the municipality shall not grant a permit or license to use the building that was constructed unlawfully. If that is so, the question of tax exemption would arise only after the lawful completion of the building. In other words, a Municipality can grant exemption to a building if it is lawful. An unauthorized building that was granted a special number shall in no way entitled to get exemption from the property tax. If that is so, the Municipality is very well empowered to collect tax under S.242 even if a portion of the building is already granted exemption. This is more acceptable in the light of S.242 (2). Under S.242 (2) the secretary shall proceed under S.406 against an unauthorized building and nothing contained in S.242 (1) shall preclude the secretary from proceeding with such actions.

It is reiterated by the settled position of law that exemption can only be granted to the buildings which are utilized for the purposes mentioned.₂  There is another explicit provision in the Municipality Act that no building can be used for any purpose without obtaining occupancy and numbered the building. If that be so, the reason that the building constructed was intended to be for an educational institution that might have obtained tax exemption shall not be a reason to escape from the imposition of tax under S.242(1) of the Act.

It is also worthwhile to note here that as per R.11 (2), the person claiming property tax exemption has to submit the return in Form-2a. One of the details to be furnished along with this specific form is the building number. Only after obtaining a valid occupancy and building number that a person can apply for tax exemption under this rule. 

Therefore, for the reason that, if a building constructed lawfully, it could have been given tax exemption shall not be reason for precluding a Municipality for proceeding against an unauthorized building including the imposition of tax under S.242(1). Unfortunately, these aspects have not been brought to the notice of the Hon’ble Court while deciding the matter which resulted in a judgment that goes against the spirit of the Act.

Foot Notes

1.Manager, Varam Upper Primary School v. Kannur Municipal Corporation (2024 (5) KLT 572).

2. Panayappilly Sree Narayana Guruswami Trust v. Corporation of Kochi (2022 (4) KLT 874).

Law Making for Breaking by Courts, without any Accountability

(By Adv. S. Balachandran (Kulasekharam), Thiruvananthapuram)
E-mail : balachand59@gmail.com     Mob. 9387734030

1. The judiciary is the master, protector, and enforcing authority of the rule of law. Nowadays, the general public holds faith, belief in impartiality, and trust only in the judiciary. Many people are under the impression that they will receive immediate relief from the judiciary, which is why law-abiding citizens refrain from taking the law into their own hands to address grievances.

2. “Justice delayed is justice denied” is a compelling yet unfulfilled aspiration that often remains a mere phrase within the legal system. The higher judiciary, through various thoughtful and impactful pronouncements, has made several decisions aimed at minimizing the duration of litigation. It has formulated mandates to expedite proceedings and ensure timely relief. However, these mandates often remain unimplemented, gathering dust in the archives. Subordinate courts frequently disregard the directives of the higher judiciary, and no mechanisms are in place to ensure compliance. Moreover, these decisions lack provisions for penal consequences in cases of non compliance. As a result, trial courts often turn a blind eye to these mandates, effectively violating them without accountability.

3. In Quantum Securities Pvt. Ltd. v. New Delhi Television Ltd. (2015 (4) KLT Suppl. 8 (SC) = 2015 SCC 10 602),decided on 1st July 2015, the Honorable Supreme Court held that “the court shall make an endeavor to finally dispose of the application for a temporary injunction within 30 days from the date on which the ex parte injunction is granted.” However, in practice, most trial courts, after granting temporary injunctions without notice to the defendants, take months or even years to dispose of such matters on merit, despite urgent requests from defendants. The verdict lacks provisions for penal consequences in cases of non compliance. Consequently, this decision is routinely ignored or violated by trial courts. The absence of clear consequences for non compliance and liabilities imposed on errant courts renders this decision a toothless directive, existing merely as an inert provision in legal statutes.

4. Similarly, in A.Venkatasubbiah Naidu v. S.Chellappan (2000 (3) KLT OnLine 1052 (SC) = 2000 (7) SCC 695), decided on 19th September 2000, the Honorable Supreme Court held that “if an ex parte order of injunction is not disposed of on merit within one month from the date of appearance of the defendants, an appeal from that ex parte order of injunction will lie to the District Court.” However, when this option is pursued, the matter often languishes in the District Court for years. Furthermore, trial courts tend to refrain from passing orders in such interlocutory applications, citing the pendency of the matter before the District Court. This situation exacerbates delays, leaving parties to suffer due to judicial inaction or procedural lapses. It is a well-established principle of law that no party should be made to endure hardship due to the court’s inaction or failure to adhere to procedures established by law.

In Rahul Sui Shaw v. Jinendra Kumar Gandhi (2021 (3) KLT 235 (SC) = 2021 (2) KLT OnLine 1050 (SC)), decided on 22nd April, 2021, the Honorable Supreme Court, by invoking Articles 141, 142, 144, and 227 of the Constitution of India, directed that “execution proceedings must be completed within six months from the date of filing, with extensions allowed only by recording reasons in writing for such delays. Furthermore, the Court instructed the High Courts to reconsider and update all rules relating to the execution of decrees under their powers within one year from the date of the order. To expedite execution proceedings”, the Supreme Court laid down 16 specific conditions. However, this decision remains a silent and unfulfilled directive. None of the execution courts have complied with these directions, and the High Court of Kerala, to date, has not taken steps to fulfill the prescribed conditions. Execution petitions continue to take years, and the Supreme Court’s dictum remains repeatedly violated without consequence.

6. In Kattukandi Edathil Krishnan v. Kattukandi Edathil Vilasini(2022 (3) KLT 924 (SC)), decided on 13th June 2022, the Honorable Supreme Court emphasized that “once a preliminary decree is passed in a partition suit, the trial court must proceed suo motu to draw up the final decree. The Court held that there is no need for separate final decree proceedings; instead, the court should list the matter for action under Order XX Rule 18 of the Civil Procedure Code immediately after the preliminary decree”.

a) The Supreme Court further directed its Registry to forward a copy of the judgment to the Registrar Generals of all High Courts, who were instructed to circulate the directions to the concerned trial courts.

b) The Court observed that litigants seek actual relief, not merely paper decrees. For instance, in money suits, litigants expect to recover money; in partition suits, they expect possession of property. However, the current system often forces parties to undergo multiple proceedings, including preliminary decree proceedings, final decree applications, and execution processes, exhausting their resources and delaying justice for decades.

c) The Supreme Court highlighted that by the time a party secures a preliminary decree, they often lack the finances or energy to pursue final relief, contributing to considerable delays and undermining the civil justice system’s credibility. Both courts and lawyers should prioritize final decree proceedings and executions as much as the original suits.

d) The proverbial observation that “the difficulties of a litigant begin when they obtain a decree” remains relevant. Success in a suit is meaningless unless the party obtains actual relief.

7. Under Section 24 of the Kerala Buildings (Lease and Rent Control) Act, it is stipulated that final orders in any proceedings should be passed within four months from the date of appearance of the parties, as far as practicable. However, this provision has become practically ineffective and warrants a constitutional review.

8. It is fortunate that most poor litigants remain unaware of these systemic shortcomings. If litigants were fully informed of these issues and began conducting their cases independently, the judiciary would struggle to address their grievances effectively. The loyalty of advocates to the judiciary ensures that these systemic problems remain largely unchallenged.

9. The Honorable Supreme Court has repeatedly emphasized the principle that “Lex non cogit ad impossibilia — the law does not compel a person to do what is impossible.”
In 2024 (5) KLT 111, the Court reaffirmed this principle, emphasizing that no one is bound to perform the impossible.

In conclusion, I hope the Honorable Supreme Court continues to deliver such landmark judgments, even as the trial courts and other judicial bodies persist in violating them. This ongoing disconnect underscores the urgent need for reform to uphold the rule of law and ensure justice is both timely and effective.

 \jvS]cnlmcw \ÂIm³ hogvN hcp¯nbm XShv in£ hn[n¡mtam? Hcp hntbmP\Ipdn¸v

 (By F.]n.Fw.sambvXp, I®qÀ)  E-mail : najidaadiraja@gmail.com   Mob. 9446597898

2024 (5) sI.FÂ.Sn. 681þmw \{¼mbn dnt¸mÀ«v sN¿s¸«Xpw sslt¡mSXnbpsS {Inan\ dnhnj³ s]äoj³ 1149/ 2008 \{¼nepÅXpw 2024 k]vä_À 13þmw \p D¯chnd¡nbXpamb kmenw. V. tIcf sÌbnäv tIÊn hnNmcW tImSXnbpw XpSÀ¶v A¸o tImSXnbpw {]Xn¡v \ÂInb in£ AtX]Sn icnsh¨p sIm­Imbncp¶p _lp: sslt¡mSXn kn¦nÄ s_©v hn[n {]Jym]\w \S¯nbXv.

aPnkvt{Säv {]Xn¡v tImSXn ]ncnbpwhsc XShpw {Inan\ \S]SnN«w 357(3) hIp¸v {]Imcw aq¶p e£wcq] \jvS]cnlmcambn A\ymb¡mc¶p \ÂIphm\pw hogvNhcp¯nbm aq¶pamkw XShv A\p`hn¡p¶Xn\pambncp¶p in£bmbn hn[n¨ncp¶Xv. aPnkvt{Sävv {]Xn¡v aq¶p e£w cq] {Inan\ \S]SnN«w 357 (3)  hIp¸v {]Imcw \jvS]cnlmcw \ÂIm\pw hogvN hcp¯nbm aq¶pamkw XShv A\p`hn¡m\pw D¯chn« ]Ým¯e¯n {]kvXpX D¯chv _lp: sslt¡mSXn AtX]Sn AwKoIcn¨t¸mÄ ChnsS \nba]camb Hcp {]iv\w DbÀ¶phcp¶pI­v. {Inan\ \S]SnN«w 357(3) hIp¸v {]Imcw \jvS]cnlmcw D¯chn«m AXv \ÂIm¯]£w XShv in£ hn[n¡m³ \nbaw tImSXn¡v A[nImcw \ÂIp¶pt­Im? Cu teJIsâ Dd¨ adp]Sn “CÔ sb¶mWv. Cu ho£Ww Xmsg {]Xn]mZn¡p¶ hkvXpXIfneqsS teJI³ sXfnbn¡phm³ B{Kln¡p¶p.

d±m¡s¸« 1973 se {Inan\ \S]Sn N«¯n 357þmw hIp¸nepw D]hIp¸pIfnepambn«mWv {Inan\ tImSXnIÄ¡v \jvS]cnlmcw D¯chnSm\pÅ A[nImcw \ÂIs¸«n«pÅXv. AXn ChnsS hnhmZamb 357 (3)þmwhIp¸v Xmsg AtX]Sn D²cn¡p¶p.

“tImSXn ]ng in£ `mKambn«pÅXÃm¯ Hcpin£mhn[n Npa¯pt¼mÄ tImSXn¡v Ipämtcm]Ww  sN¿s¸«n«pÅ BtfmSv  Abmsf A{]Imcw in£¡v hn[n¨Xv GXv IrXy¯n¶mtWm B IrXyw ImcWambn GsX¦nepw \jvStam £Xntbm A\phZn¨n«pÅ BÄ¡v D¯chn \nÀt±in¡p¶ XpI \jvS]cnlmcambn sImSp¡m³ D¯chv sN¿mhp¶XmWv.”

AXmbXv  in£ XShvin£ am{XamIpt¼mÄ, \jvSw kw`hn¨ hyàn¡v  \jvS]cnlmcw  D¯chnSm³ tImSXn¡v A[nImcapsI­¶p {]kvXpX hIp¸v hn`mh\w  sN¿p¶p. ]s£ tImSXn D¯chnSp¶ Cu hIp¸v {]ImcapÅ \jvS]cnlmcw {]Xn \ÂInbnsæn ]Icw XShv in£ hn[n¡m\pÅ A[nImcw N«¯nse 357(3)þmwhIp¸v A\phZn¡p¶nÃ. ]s£ kn.BÀ.]n.kn 357(1) hIp¸\pkcn¨p Hcp in£bmbn Npa¯s¸Sp¶ ]ngkwJy apgpht\m `mKnIamtbm \jvS]cnlmcambn A\phZn¡m³  tImSXn¡[nImcapI­v.  ]ng Hcp in£bmsW¶ \nebn ChnsS \jvS]cnlmcw \ÂInbnsæn XShvin£ \ÂIp¶Xn bmsXmcp A]mIXbpanÃ.

\jvS]cnlmcw \ÂIp¶Xn\v D¯chnSp¶Xv \nbahyhØIfpsS ASnØm\¯n Hcp in£bÃ. F´psImI­v “in£” sb¶Xv d±m¡s¸« 1860se C´y³ in£m \nba¯nse 53þmw hIp¸n \nÀÆNn¡s¸«n«pI­v.  AXp{]ImcamWv.

“53 þ in£IÄ :þ Cu \nbkwlnXbnse hyhØIÄ¡v Iogn GXv in£IÄ¡mtWm Ipä¡mÀ AÀlamIp¶Xv B in£IÄ

   H¶maXv       :  acWw

   c­ImaXv       :   Poh]cy´w

   aq¶maXv      :  XShv þ c­Ip Xc¯nÂ

                     ITn\XShv  (2) shdpwXShv

   \memaXv      :  hkvXp I­IpsI«Â

   A©maXv     :  ]ng

ChbmIp¶p.

ChnsS \jvS]cnlmcw Hcp“in£”bmbn ]cnKWn¡p¶nÃ. IqSmsX ]ngbpsS hogvN¡v XShn\pÅ in£mhn[n kn.BÀ.]n.kn 30þmw hIp¸n hyhØ sNbvXn«pI­v. “aPnkvt{Sänsâ tImSXn¡v ]ng HSp¡p¶XnenÅ \nbaw {]m[nImcw \ÂIp¶ Imes¯ XShv in£ \ÂImhp¶XmWv.”

ChnsSbpw  \jvS]cnlmc kwJy \ÂIm³ hogvN hcp¯nbm XShv in£ \ÂIm³  A[nImcw aPnkvt{Sän\p \ÂIp¶nÃ.

asämcp {]iv\w sslt¡mSXn¡v AXn¶pÅ A[nImcapt­Im? sslt¡mSXnIÄ¡v ]mÊm¡mhp¶ in£mhn[nIsf kn.BÀ.]n.kn 28(1) hIp¸n {]Xn]mZn¨n«pIv.

“sslt¡mSXn¡v \nbaw {]m[nImcw \ÂIp¶ GXv in£mhn[nbpw ]mÊm¡mhp¶XmWv“.

\jvS]cnlmcw \ÂIm³ hogvN hcp¯nbm XShv in£ \ÂIm³ Hcp \nbahyhØbpw \nehnenÃm¯ Npäp]mSn sslt¡mSXn¡pw {]kvXpX A[nImcansöp hyàam¡p¶p.

ASp¯Xmbn taÂhyhØIÄ kw_Ôn¨p \nehnepÅ “Zn `mcXob \mKcnIkpc£ kwlnX 2023” F´v ]dbp¶psb¶p ]cntim[n¡mw. \jvS]cnlmcw kw_Ôn¨p _n.F³.Fkv.Fkv BIvSn 395þmw hIp¸nemWv {]Xn]mZn¨ncn¡p¶Xv. \nbahIp¸v \{¼nepÅ hyXymkaÃmsX, kn.BÀ.]n.knbnse hyhØIfpambn Hcp amähpanÃ. \nehnepÅ \nba¯nepw \jvS]cnlmcw \ÂIm³ hogvNhcp¯nbmÂXShv in£ \ÂIm\pÅ Hcp hyhØbpanÃ. sslt¡mSXnbpsSbpw Iogvt¡mSXnIfpsSbpw A[nImc ]cn[nbnepw henbamä§fnÃ. in£bpsS \nÀÆN\¯n sF.]n.kn., 54þmw hIp¸n¶p]Icambn \nehnepÅ“Zn `mcXob \ymbkwlnX 2023þmw BIvSn 4þmw hIp¸nemWv Ah {]Xn\nZm\w sN¿p¶Xv. “kmaqlytkh\w”Hcp in£bmbn IqSpX tNÀ¯psh¶sXmgn¨m kn.BÀ.]o.knbpambn aäp bmsXmcp hnXymkhpanÃ. ta {]Xn]mZn¨ hkvXpXIfn \n¶pw d±m¡s¸« kn.BÀ.]n.kn 357(3) _n.F³.Fkv Fkv 395(3) hIp¸p {]ImcapÅ \jvS]cnlmcw hn[n¨m AXv ]men¨nsæn XShv in£ hn[n¡m³ tImSXnIÄ¡[nImcansöpt_m[ys¸Sp¶XmWv.

]s£ \jvS]cnlmcw F§ns\ CuSm¡pw? d±m¡s¸« kn.BÀ.]n.kn. Bnse 431þmw hIp¸v (\nehnepÅ _n.F³.Fkv.Fkv BIvSnse 461þmw hIp¸v) AXn\p¯cw \ÂIp¶p­.  “431:  Cu \nba kwlnXbn Iogn sNbvX GsX¦nepw  D¯chnsâ _e¯n sImSp¡m\pÅXpw hkqem¡p¶ k{¼Zmb¯n¶v aäphn[¯n {]ISambn hyhØ sNbvXn«nÃm¯Xpamb (]ngbÃm¯Xpamb) GsX¦nepw  ]Ww ]ngbmbncp¶Xv t]mse hkqem¡mhp¶XmWv”. CtX hyhØ \nehnepÅ _n.F³.Fkv.Fkv  BIvSn 472þmw hIp¸mbn AtX]Sn \ne\nÀ¯nbn«papI­v.

]ng CuSm¡Â kw_Ôn¨p kn.BÀ.]n.kn. 421þmw hIp¸n (_n.F³.Fkv.Fkv 461þmw hIp¸v) hniZambn {]Xn]mZn¨n«I­.v  AXv {]Imcw \jvS]cnlmcw ]ngt]mse CuSm¡m³ c­Iv amÀ¤§fmWv hyhØ sN¿s¸«ncn¡p¶Xv. P]vXnhgnbmbn XpI sehn sN¿m\pÅ hmdI­v ]pds¸Sphn¡p¶Xn\pw GsX¦nepw PwKa hkvXphnsâ hnÂ]\bpamWv H¶p. c­Imas¯XmIs« `q¡c IpSnÈnIbmbn XpI I­IpsI«m³ PnÃm IeIvStdmSv \nÀt±in¡p¶ hmdâv ]pds¸Sphn¡pI.

s\tKmjy_vÄ C³kv{Spsaâv 138þmw hIp¸v {]ImcapÅ Cu teJ\¯n¶m[mcamb tIÊnse hn[n apJhpcbn kqNn¸n¨ncp¶phsÃm. ]s£ Iogvt¡mSXn hn[nIsf¡pdn¨p sslt¡mSXn D¯chnsâ  6þmw JWvUnIbn {]Xn]mZn¨Xv ChnsS Hcn¡ÂIqSn D²cn¡p¶p.

“6: After trial the learned – Magistrate found the accused quilty under Section 138 N.I.Act and he was convicted and sentenced to undergo imprisonment till rising of court and to pay a compensation of Rs.3 lakhs to the complainant under Section 357 (3) Cr.P.C with a stipulation that in default of payment of compensation accused shall undergo simple imprisonment for three months. The Appeal preferred by the accused as Crl.A.No.219/2016 was dismissed by the sessions court by confirming the conviction and sentence…” XpSÀ¶p dnhnj³ lcPnbnt·Â hmZwtI« tijw sslt¡mSXn ]pds¸Sphn¨ D¯chpw AtX]Sn ChnsS D²cn¡p¶p.

“…… Therefore this court finds no reason to interfere with the finding of conviction and order of sentence passed against the accused.

The Revision Petition is devoid of any merit and accordingly dismissed”.

ChnsS DbÀ¯s¸Sp¶ tNmZyanXmWv. kn.BÀ.]n.kn 357(3) (\nehnepÅ _nF³.Fkv.Fkv BIvSv 395) hIp¸v {]Imcw Npa¯p¶ \jvS]cnlmc kwJy \ÂIp¶Xn hogvNhcp¯p¶]£w XShv in£ hn[n¡p¶Xv \nbahncp²atÃ?. A§s\ XShv in£ hn[n¡m³ A\phZn¡p¶ GsX¦nepw \nbahyhØ \nehneptI­m? Cu tNmZy§Ä¡p¯cw Is­I¯m³ {]Xn]mZyhnjbw \nbaRvP·mscbpw \ymbm[n]scbpw ChnsS _m[yØcm¡p¶pI­v.

taÂkqNn¸n¨ tIÊn am{Xaà ]e hn[nIfnepw Cu \nbasshcp²yw {]ISam¡p¶qI­v. DZmlcWambn 2024 (5) sI.FÂ.Sn 692þmw \{¼mbn dnt¸mÀ«vsN¿s¸«Xpw 2024 BKÌv 29\v hn[n {]kvXmhn¨Xpamb AeIvkm­À V._nPpsNø³ tIÊnse sslt¡mSXn D¯chnepw Cu sshcq²yw ZriyamIp¶pI­v. F³.sF.BIvSv 138þmw hIp¸v  {]ImcapÅ {]kvXpX tIÊn Ipä¡mc\msW¶p Is­¯nb {]Xn¡v aPnkvt{Säv \ÂInb in£ Bdpamkw XShpw A¿mbncw cq] ]ngbpambncp¶p. ]ng AS¨m kn.BÀ.]n.kn 357(1) hIp¸v {]Imcw \jvS]cnlmcambn A\ymb¡mc\p \ÂIp¶Xn¶pw ]ng HSp¡phm³ hogvNhcp¯nbm Hcp amkw IqSpX XShv A\p`hn¡m\pw aPnkvt{Säv D¯chn«ncp¶p. ]s£  dnhnj³ lcPnbpambn  Cu tIÊv sslt¡mSXnbnse¯nbt¸mÄ in£bn amäw hcp¯pIbpI­mbn. sslt¡mSXn D¯chnsâ 17þmw JWvUnIbn {]Xn]mZn¨Xv C{]Imcambncp¶p.

      “17:  Considering the long delay and the purpose and object  of the  legislation, this court is inclined to modify the sentence as simple Imprisonment  for one day till rising of court and to pay compensation of `5 lakhs to the appellant complainant with a default sentence of simple imprisonment for six months.

ChnsS \jvS]cnlmcw hn[n¨Xv kn.BÀ.]n.kn 357 (3) hIp¸v {]ImcamsW¶p hyàam¡nbn«nsænepw hmNILS\ AXv hyàam¡s¸Sp¶pI­v.

kn.BÀ.]n.kn.357 (3) hIp¸v  (\nehnepÅ _n.F³.Fkv FkvBIvSv 395(3) hIp¸v) {]ImcapÅ \jvS]cnlmcw \ÂIp¶Xn hogvN hcp¯nbm XShvin£ \ÂIp¶ coXn hensbmcp {]XymLmXw krjvSn¡phm³ hgn Hcp¡p¶pI­v. \jvS]cnlmcw \ÂIm³ km[n¡m¯ Npäp]mSn {]Xn PbnÂin£ A\p`hn¡m³ X¿mdmIpt¼mÄ AhnsS “\nba¯n¶p ap¼n kaXz”sa¶ `cWLS\ 14þmw hIp¸v A\phZn¨n«pÅ auenImhImi¯nsâ \áamb ewL\w ZÀin¡s¸Sp¶p. AXpsImI­v  Cu hnjb¯n  \nbaÚcpw \ymbm[n]cpw {i² ]Xn¸nt¡­Ip¶ BhiyIXbpsS A\nhmcyX Du¶n¸dbp¶p. ASp¯pXs¶ AXpImIpsa¶ ip`{]Xo£tbmsS ChnsS hncmaanSp¶p. 

Frame  of Suit Based on Easement  of Necessity

 (By P.B. Menon, Advocate, Palakkad)   Mob. 9846544495

I am obliged to pen these few lines on this subject only out of my experience as a civil lawyer at the Bar in the course of the last nearly 75 years.

As a matter of fact in my said career I have not come across a single suit relating to easement of necessity having been filed with reference to Section 14 Indian Easement Act 1882 by any lawyer.

Whenever, due to partition or transfer splitting up of a holding as provided for in Section 13(a), (b) & (c) of the Indian Easement Act take place, an easement of necessity springs up in favour of the dominant tenement. In such cases what is seen generally done is to claim Easement of necessity over the existing way or road in the servient tenament. That I believe is not  proper or correct method, for Section 14 provides the right procedure. The  plaintiff who files the suit should issue a registered notice to the servient  tenament holder demanding him to set out  a way through his tenement which is reasonably convenient to the plaintiff dominant owner to have access to his plot,. and if he refuses ,neglects or fails to provide such a way the plaintiff can seek the aid of the court to set out such a way by issuing a commission to inspect and suggest a convenient way by filing a suit. That I believe is the real import and scope of Section 14. So to claim easement of necessity over the existing way and moulding the relief in the prayer portion so, is clearly wrong and unsustainable in law. Of course if the defendant has no such objection to allow the plaintiff to use the existing way there will be no problem at all. If you analyse the scope of  the section the real option is left with the servient owner of the tenement to set out  the way and the dominant owner has no right to insist upon the old existing way or any other way as he suggests. As a plaintiff, he can only  demand to set out a way through the servient tenant but can’t never  insist on a particular way according to his wishes. I feel that is the correct position in law.

In case a reader of this article feels otherwise please come up with his view to enlighten me on the subject which I warmly welcome.

Administrative Indifference to Mass Gatherings

(By Hariraj M.R., Senior Advocate, High Court of Kerala)
Email : harirajmr@gmail.com     Ph.: 9447072461

“The greatest failure of all is the failure to act when action is needed”.—John Wooden

The tragic incident involving Smt.Uma Thomas, Member of the Legislative Assembly, has once again underscored the negligence surrounding safety measures at public events. The immediate fallout has sparked discussions about the organizers’ failure to prevent such an accident. These conversations, predictably, will dominate the media for a short time. Social media may extend the discourse, but if history is any guide, the fervor will fade, leaving the root issues unresolved — until the next tragedy.

In 1999, a devastating stampede at Sabarimala claimed 53 lives. Public outrage was swift. A judicial commission was established, which recommended urgent safety improvements. Yet, these recommendations fell by the wayside as the event faded from public memory.

Twelve years later, on January 14, 2011, another stampede at the same location took 106 lives. Once again, the response was limited to declarations and token measures. In those 12 years, little had been done to address the glaring risks.

The National Disaster Management Authority (NDMA), in its 2014 guide on managing crowds at mass gatherings, emphasized:

“Crowd disasters are, in general, man-made and entirely preventable with proactive planning and flawless execution by well-trained personnel”.

Yet, governments at all levels have failed to implement and enforce mandatory safety protocols for mass gatherings. The Institute of Land and Disaster Management in Kerala published guidelines in 2015 specifically for safety at “religious gatherings”. Unfortunately, these guidelines remain just that—recommendations, often ignored. The suggested standard operating procedures are rarely implemented, reflecting a pattern of systemic apathy.

Curiously, these guidelines apply only to religious gatherings, as if other events are immune to such risks. Public gatherings—whether in theaters, exhibition grounds, or marathons—are equally vulnerable. The glaring issue is the absence of legally binding provisions mandating safety measures for any mass event.

A chilling example of this negligence is the 2023 tragedy at Cochin University of Science and Technology, where four lives were lost. As usual, there was outrage, cases were filed, and directives were issued to revise “campus event protocols”. However, no protocol with statutory authority existed then — or exists now — for mass gatherings in Kerala, whether on campuses, in public spaces, or at religious events.

The NDMA guidelines identify poor guard railings as a common structural cause of accidents at such events. Tragically, Smt.Uma Thomas’s severe injury was due to a complete lack of proper barricades, compounded by the presence of a poorly constructed, unauthorized structure. Even more appalling was the absence of basic medical facilities on-site. She had to be carried away without adequate first aid or a stretcher—an unthinkable lapse in an event hosting thousands.

Every such incident triggers criticism from uninvolved quarters and defensiveness from organizers. Yet, the underlying truth is undeniable: as a society, we are indifferent to safety. We resist safety mandates—whether helmets, seat belts, or crowd control measures. When accidents occur, we engage in predictable debates, which dissipate as soon as another issue grabs our attention.

The governments must act decisively. A robust statutory framework for mass gatherings is urgently needed. This framework must include the following key elements to ensure public safety:

a. Comprehensive Crowd Control Measures:Clear statutory provisions should mandate the use of proper barricades, designated entry and exit points, maximum capacity limits for venues, and emergency exit protocols. Advanced crowd management technologies, such should also be employed to predict and prevent overcrowding.

b. Effective Risk Assessment and Management: Every event should undergo a thorough risk assessment before it is approved. This should include identifying potential hazards, assessing the venue’s structural integrity, and evaluating emergency preparedness. Event organizers must be required to submit detailed safety plans to regulatory authorities for approval.

c. Interagency Co-ordination:Collaboration between law enforcement, disaster management authorities, medical services, and local administrative bodies need to be ensured for pre-event planning, realtime monitoring, and post-event assessments to ensure accountability and continuous improvement. A body with inter departmental representation must be tasked with the responsibility of approving such gatherings and imposing conditions on the organisers.

d. Rapid Response Mechanisms:Emergency medical facilities, including first-aid stations, ambulances, and trained paramedics, must be mandatory at all large gatherings. A well-defined evacuation plan should be in place, with rehearsals conducted to ensure seamless execution during an emergency. Trained hands must be ensured onsite for effective response without delay.

e. Strict Legal Accountability: Laws governing mass gatherings must impose stringent penalties for negligence, including fines, suspension of licenses, even without any accident occurring and, in severe cases, criminal charges must be brought against organizers and officials responsible for lapses.

f. Learn from Mistakes :Every accident or mishap must lead to a detailed investigation and study based on which the protocols for safety are continuously revised.

g. Public Awareness Campaigns: Awareness campaigns should promote responsiblebehaviour, such as avoiding overcrowding, following signage, and adhering to safety guidelines. Attendees must be empowered to report safety violations without fear of reprisal.

Action must be purposeful and swift. Lives lost in preventable tragedies are a permanent reminder of our collective failure to prioritize safety. With political will and administrative commitment, these measures can transform how mass gatherings are organized, making them safer for everyone. Action must be purposeful and swift, for, as George Santayana warned,

“Those who cannot remember the past are condemned to repeat it.”