Abdul Nazar A v Cheranalloor Grama Panchayat, represented by its Secretary, Cheranalloor Grama Panchayat, South Chittor; 2nd respondent; 3rd–5th respondents (PWD NH Division, Aluva; Project Director, NH A I; etc.)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940 WP(C).No. 17794 of 2018** ## **PETITIONER:** **ABDUL NAZAR A, AGED 58 YEARS, S/O. M. AHAMED, ANTHIKAD CHENNAMPILLY HOUSE, CHERANALLOOR, KOCHI-682 034, NOW RESIDING AT ANTHIKAD HOUSE, THRIKKAKARA P.O., 682 021.** **BY ADVS.SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** ## **RESPONDENT(S):** ## **1. CHERANALLOOR GRAMA PANCHAYAT,** **REPRESENTED BY ITS SECRETARY,' SOUTH CHITTOR P.O., KOCHI-682 027.** ## **2. SECRETARY,** **CHERANALLOOR GRAMA PANCHAYAT, SOUTH CHITTOR P.O., KOCHI-682 027.** ## **3. EXECUTIVE ENGINEER,** **PUBLIC WORKS DEPARTMENT(NATIONAL HIGHWAY DIVISION), MINI CIVIL STATION, KODUNGALLUR, THRISSUR-680 664.** ## **4. ASSISTANT EXECUTIVE ENGINEER,** **PUBLIC WORKS DEPARTMENT(NATIONAL HIGHWAY DIVISION), ALUVA, ERNAKULAM-683 101.** ## **5. PROJECT DIRECTOR,** **NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, MAVELIPURAM, KAKKANAD, ERNAKULAM-682 030.** **R1,R2 BY ADV. SRI.T.K.AJITHKUMAR (VALATH) R3 & R4 BY SENIOR GOVERNMENT PLEADER SRI. P.M. MANOJ R5 BY ADV. SRI.E.C.KURIAKOSE,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PBS** ## **WP(C).No. 17794 of 2018 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT ON 04.02.2009. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 10.02.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE CASH RECEIPT DATED 04.04.2018 ISSUED BY THE 1ST RESPONDENT ACKNOWLEDGING THE RECEIPT OF PROPERTY TAX FOR BUILDING NO. 3/507A. EXHIBIT P4 TRUE COPY OF THE CASH RECEIPT DATED 04.04.2018 ISSUED BY THE 1ST RESPONDENT ACKNOWLEDGING THE RECEIPT OF PROPERTY TAX FOR BUILDING NO. 3/507C. EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT DATED 13.04.2018 ISSUED BY THE 1ST RESPONDENT EVIDENCING RECEIPT OF APPLICATION FOR BUILDING PERMIT.** **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 18.01.2018 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBIT NIL** **/TRUE COPY/** **PS TO JUDGE** **PBS 28/7/2018** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.17794 of 2018 ----------------------------------------------Dated this the 26[th] day of July, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to respondents 3 and 4 to issue No Objection Certificate (NOC) for carrying out a construction on the second floor of a building owned by the petitioner in Re-survey No.548/8 of Cheranalloor Village, Ernakulam District. Material facts for the disposal of the writ petition are as follows: 2. Petitioner obtained Ext.P1 building permit from the 1[st] respondent Panchayat in February, 2009 for construction of a three-storied building (ground plus two floors) in his property situate in Cheranalloor Village of Ernakulam District. The validity of the building permit was for a period of three years. It was further renewed for a period of three years from 04.02.2012 to 03.02.2015. However, due to paucity of funds, petitioner could not complete the construction within the renewed period. Again, a renewal was sought for as per Ext.P2, and the 2[nd] respondent renewed the permit for a further period of three more years. 2 **W.P.(C) No.17794 of 2018** 3. Petitioner completed construction of the ground and first floors and the Panchayat has assigned number to the building in the year 2017. Petitioner has also remitted the property tax for the completed construction, evident from Exts.P3 and P4. During February, 2018, petitioner applied for further renewal of Ext.P1 building permit to construct the second floor. The 1[st] respondent declined to renew Ext.P1, stating that, once granted, the permit can be renewed only twice. Thereupon, petitioner applied for fresh building permit on 13.04.2018, evident from Ext.P5 acknowledgement issued by the 1[st] respondent. It was sought for to construct two residential units on the second floor of the existing building. Petitioner was thereupon informed by the 2[nd] respondent that, in view of Ext.P6 communication from the 4[th] respondent i.e., the Assistant Executive Engineer, Public Works Department (National Highway Sub Division), Aluva, application for NOC could be considered only after approval of new alignment for the National Highway and fixation of boundary. It is thus seeking specified directions, this writ petition is filed. 3 **W.P.(C) No.17794 of 2018** 4. Respondents 1 and 2 have filed a counter affidavit stating that no objection certificate from respondents 3 to 5 is a necessary requirement, since it is abutting National Highway 66 (formerly, NH-17). Therefore, as per Sec.20 of the Kerala Highway Protection Act, notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing from the Highway authority:- erect or re-erect any building or structure or alter the level of the land by lowering, raising, digging or filling up, or construct, form or pay out any means of access to a highway upon land laying in between the building line and the control line. As per Rule 11(1) of the Kerala Panchayat Building Rules, 2011, the Secretary shall, after inspection of the site and verification of the site plan and documents, if convinced of the _bonafides_ of the ownership of the site and that the site plan, drawing and specifications conform to the site, and the provisions of the rules or bye-laws made under the Act and any other law, approve the site and site plan. Therefore, according to the said respondents, without an NOC from the National Highway Authorities, no permission can be granted for construction of the building. 4 **W.P.(C) No.17794 of 2018** 5. Respondent No.5, i.e., the Project Director, National Highway Authority of India has filed a counter affidavit stating that the National Highway Authority of India has no jurisdiction over this stretch of highway, and therefore, they are not at all necessary parties in the writ petition. It is further stated that the stretch of National Highway-66 i.e., Kuttippuram to Edappally is not entrusted to the National Highways Authority of India, and it is vested with the PWD National Highways Wing of the Government of Kerala for operation and maintenance, and the custodian of the said stretch of highway is the Executive Engineer, PWD, National Highways (B) Division, Kodungallur. Other contentions are also raised by the 5[th] respondent. 6. I have heard learned counsel for the petitioner and the respective counsel appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties. 7. The thrust of the contention advanced by learned counsel for the petitioner is that, since the National Highways Authority of India has no authority over the stretch of the highway in which petitioner is proposing to carry out the **W.P.(C) No.17794 of 2018** 5 construction, there is no requirement of NOC from the said authority. So far as the Kerala Highway Protection Act, 1999 is concerned, Sec.18 deals with fixation of Building lines and Control lines. Sub-section (2) of Sec.18 prescribes a notification or publication with respect to the enforcement, and it will take effect only from the date of publication. 8. Learned counsel has pointed out that the said mandatory requirement was considered by a learned Single Judge of this Court in ' _**Peer Mohammed v. Chirakandam Grama Panchayat**_ ' [2008 (3) KLT 300], and held that unless and until the notification is published in accordance with the requirement contained under sub-section (2) of Sec.18, there is no validity for the said provision and therefore, there is no requirement of securing NOC from the 4[th] respondent or the competent authority. Paragraphs 8, 13 and 14 of the said judgment are relevant to the context, which read thus: _8. Fixation of Building line and Control line are to be done by the competent authority in terms of S. 18 of the Kerala Highway Protection Act 1999, which is extracted below for reference:_ _**“S.18: Building lines and Control lines.--** (1) The competent authority shall determine building lines and control lines in respect of any category of highway in such a way that the distance between the middle of a highway and the building line or that between the building line and the control line shall be fixed with due regard to the requirements of safety and convenience of traffic and of future development of the_ 6 **W.P.(C) No.17794 of 2018** _highway._ _**Explanation.--** For the purpose of this sub-section middle of a highway means, in relation to any highway for the improvement of which plans have been prepared by the highway authority, the middle of the highway as proposed to be improved in accordance with the plans, and where no such plans have been prepared, the point halfway between the boundaries of the highway._ _(2) The building lines and control lines as determined for any category of highway or part thereof shall be published in the Gazette and in two daily news papers by the competent authority.”_ _**13** . Read as a whole, the requirements of S.18 of the Act can be stated thus, (1) the competent authority shall determine the Building line and Control line (2) such determination shall be with due regard to the requirements of safety, convenience of traffic and future development of the highway and (3) the Building line and Control line so determined shall be published in the official Gazette and in two daily newspapers. If the argument of the learned Government pleader is to be accepted, this court will have to hold that, of the three requirements of the section, the one requiring publication in the Official Gazette and news paper is not mandatory. In view of the provisions of the Act, this contention of the Learned Government Pleader is difficult of acceptance._ _**14.** The exercise of power under S.18 is a conditional one. Unlike parliamentary legislation which is publicly made, delegated or, subordinate legislation is often made unobtrusively in the chamber of a Secretary to Government or other official of the state. It is therefore, necessary that such subordinate legislation, in order to take effect must be published or promulgated strictly in the manner as provided in the statute. It will then take effect from the date of such publication. This is the law laid down by the Apex Court in its judgment in B.K. Srinivasan v. State of Karnataka reported in 1987 (1) SCC 658. That apart, it is trite law that if a statute requires something to be done in a particular manner, it shall be done in that manner and in no other. In this case, S.18(2) provides the manner in which the publication is to be effected and if that be so, the mode prescribed by the statute must be followed and such a requirement is imperative and cannot be dispensed with.”_ **W.P.(C) No.17794 of 2018** 7 Therefore, the contention of the petitioner is that, petitioner is entitled to get the permit application considered without issuance of any NOC by respondents 4 and 5. 9. Having evaluated the contentions advanced on either side, I am of the considered opinion that, there is force in the contention advanced by learned counsel for the petitioner, especially when it is submitted that the provision is not yet notified. Therefore, there will be a direction to the 2[nd] respondent to consider the permit application submitted by the petitioner, irrespective of the findings contained under Ext.P6 issued by the 4[th] respondent dated 18.01.2018, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/27.07.2018