Jaganathan K. v Vilavoorkkal Grama Panchayath and others

**WP(C) NO. 8949 OF 2022** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944** **WP(C) NO. 8949 OF 2022** ## **PETITIONER/S:** JAGANATHAN K. AGED 45 YEARS PALAZHI HOUSE, TC 21/1610(2), NEDUNGAD, KARAMANA, THIRUVANANTHAPURAM - 695 002. BY ADVS. M.P.ASHOK KUMAR ASIF N ## **RESPONDENT/S:** 1 VILAVOORKKAL GRAMA PANCHAYATH REP. BY ITS SECRETARY, POTTAYIL, MALAYINKEEZH P.O., THIRUVANANTHAPURAM - 695 571. 2 THE SECRETARY VILAVOORKAL GRAMA PANCHAYATH, POTTAYIL, MALAYINKEEZH P.O., THIRUVANANTHAPURAM - 695 571. 3 THE DISTRICT COLLECTOR CIVIL STATION, KUDAPPANANKKUNNU, THIRUVANANTHAPURAM - 695 043. BY ADV S.ANEESH ## **OTHER PRESENT:** SMT.VIDYA KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 8949 OF 2022** **2** ## **P.V.KUNHIKRISHNAN, J -------------------------------------------W.P.(C.) No. 8949 of 2022** **-------------------------------------Dated this the 16[th] day of June, 2022** ## **JUDGMENT** The above writ petition is filed with following prayers : “i. Issue a Writ of Certiorari or other appropriate writ or order quashing Ext.P3 and P4 orders issued by the 1[st] and 3[rd] respondents respectively. ii. Direct the 1[st] respondent to issue Building permit to the petitioner for the construction of a residential building in 1.21 Ares of dry land situated in Re Sy No. 654/11-2 and 2.84 Ares of property situated in Re Sy No. 654/10-2 of Vilavoorkkal Village, Kattakkada Taluk, Thiruvananthapuram. iii. Pass such other orders as this Hon'ble Court may deem fit to grant in the circumstances of the case.” [SIC] 2. The petitioner applied for a building permit to construct a residential building in his plot before the 1[st] respondent-Panchayat. Subsequent to the filing of Ext.P2 application, the Overseer attached to the office of the 1[st] respondent conducted a site inspection and reported that the **WP(C) NO. 8949 OF 2022** **3** property of the petitioner is 62 metres away from the lodger unit. It is a property owned by Airforce authority. Under Rule 5(4) of the Kerala Panchayat Building Rules, 2019 (for short "Rules, 2019) consultation is required only if the construction is within 10 metres from the Defence establishment. It is the case of the petitioner that the 1[st] respondent rejected the application referring to a letter issued by the District Collector prohibiting construction around 100 metres from the Defence property. It is the definite case of the petitioner that District Collector has no authority to issue Ext.P4 letter to the 1[st] respondent restraining construction in the vicinity of a barren land based on a letter issued by the Asst.Solicitor General of India to the High Court of Kerala. Hence this writ petition is filed. 3. According to the petitioner, this point is considered by this Court in **Ganesan R.C. v. Vilavoorkal Grama Panchayath, Thiruvananthapuram and anr.** [2021 (1) KLT 392]. It is the definite case of the petitioner that the above decision was rendered by this Court in connection with the another issue in the same Panchayat. **WP(C) NO. 8949 OF 2022** **4** 4. Heard the learned counsel for the petitioner, learned Standing Counsel for respondents 1 and 2 and the learned Government Pleader appearing for the 3[rd] respondent. 5. As per Rule 5(4), the consultation from the authorities is necessary only if the proposed building is within 10 metres from the Defence establishment. Admittedly, in this case, the distance from the proposed construction to the property of the Defence establishment is 62 metres. It is also clear from paragraph 3 of the counter filed by the 1[st] respondent. If that is the case, there is no provision in the Building Rules to get NOC from the Defence establishment in such situation. The counsel for the Panchayat takes me through Rule 5(4) of the Rules, 2019 and submitted that if the proposed building is within any security zone, NOC from the District Collector is necessary. The security zone is defined in Rule 2(cs). There is no case to the District Collector that the place in question is declared as security zone as defined in Rule 2(cs). If that is the case, according to me, Ext.P4 will not stand. Moreover, in **Ganesan's** case (supra), this Court considered this point in detail. It will be better to extract paragraph Nos. 8, 10 and 11 of the above decision. **WP(C) NO. 8949 OF 2022** **5** “8. 2011 Building Rules has now been replaced by the Kerala Panchayat Building Rules, 2019 (2019 Building Rules) and in terms of sub-rule (4) of R.5 of 2019 Building Rules, No Objection Certificate of the officer in charge of the defence establishment is required for the Panchayat to consider an application for building permit, if the proposed building is within 10 meters from the defence establishment. Even in the absence of any provision in the Building Rules, if there is a restriction on construction of building in a particular land in terms of the provisions of a statute, buildings can be constructed in that land only subject to such restrictions. The short question, therefore, is as to whether the restrictions on constructions in terms of Ext.R2(g) declaration applicable to the lands around the Shangumugham Air Force Station would apply to the lands around the lodger unit of the Shangumugham Air Force Station situated at Mukkunnimala. 10. Sub-section (2) of S.3 of the Act provides that in the declaration issued under sub-section (1) of S.3, the Central Government shall state the place where a sketch plan of the land can be inspected. In other words, it is obligatory for the Central Government to prepare a sketch plan of the land in respect of which restrictions are imposed in terms of the declaration for the inspection of the public at the place mentioned in the declaration. Further, S.8 of the Act makes it obligatory for the Collector to cause the lands covered by the declaration to be marked and measured and prepare a register and a detailed plan showing accurately every building, tree and other obstruction in such lands. The second respondent has not made available the sketch plan of the land in respect of which restrictions are imposed prior to Ext.R2(g) declaration nor did he make available the register maintained in respect of the same **WP(C) NO. 8949 OF 2022** **6** under S.8 of the Act. In the circumstances, I am of the view that the restrictions on construction in terms of Ext.R2(g) declaration do not apply to the lands around the establishment of the Air Force at Mukkunnimala. 11. Be that as it may, S.7 of the Act only provides that from and after the notification of the declaration under S.3 of the Act, the restrictions made mention of in the declaration would apply to the lands mentioned in the declaration. The lands around the lodger units of the Air Force Station, Shangumugham are not mentioned in Ext.R2(g) declaration, while a few installations of the Indian Air Force, other than Air Force Stations, are included in Ext.R2(g) declaration. The Act being one imposing restrictions on right to property protected under Art.300A of the Constitution, it is an expropriatory legislation. It is trite that expropriatory legislations shall be construed strictly, as a liberal interpretation of such legislations would affect the constitutional rights of citizens (See Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. (2007 KHC 3721 : (2007) 8 SCC 705 : JT 2007 (7) SC 352 : AIR 2007 SC 2458), Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai (2005 KHC 1432 : (2005) 7 SCC 627 : AIR 2005 SC 3520 : 2006 (1) KLT 230) and Sri Krishnapur Mutt, Udupi v. N. Vijayendra Shetty ((1992) 3 Kant LJ 326)). Black's Law Dictionary defines "strict interpretation" thus: "Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case." In the light of the principles aforesaid, in the **WP(C) NO. 8949 OF 2022** **7** absence of any provision in S.3 of the Act concerning the ancillary units of the works of defence such as lodger units in the case on hand, or of any site intended to be used or to be acquired for any such works included in the declaration, according to me, the restrictions imposed in terms of the Act would not apply to any lands other than lands specifically mentioned in the declaration. The writ petition, in the circumstances, is allowed. Ext.P9 communication of the Panchayat is quashed and the first respondent Panchayat is directed to consider the application of the petitioner for building permit referred to in Ext.P9 afresh, without insisting the No Objection Certificate of the second respondent. This shall be done within one month.” 6. In the light of the same, according to me, Ext.P4 will not stand. Therefore, this writ petition is allowed. - 1) Ext.P4 is quashed. 2) The 1[st] and 2[nd] respondents are directed to proceed with the building permit application, in accordance to law and pass appropriate orders in it, within three weeks from the date of receipt of a copy of this judgment, if the application is otherwise in order. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS **WP(C) NO. 8949 OF 2022** **8** ## **APPENDIX OF WP(C) 8949/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE DT. 22/07/2021. Exhibit P2 TRUE COPY OF THE APPLICATION DT. 11/08/2021. Exhibit P3 TRUE COPY OF THE ORDER NO.A1-5688/2020 DT. 31/08/2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P4 TRUE COPY OF THE COLLECTOR'S LETTER NO.B11 8782/2019/DCTVM DT. 12/12/2020 REFERRED BY THE 1ST RESPONDENT OBTAINED BY THE PETITIONER UNDER THE RTI ACT WITH TYPED COPY.