Jazeela Sherif vs. Thiruvananthapuram Corporation; Anoop R vs. Thiruvananthapuram Corporation (WP(C) Nos. 15131 of 2018 and 17180 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY ,THE 13TH DAY OF AUGUST 2018 / 22ND SRAVANA, 1940** ## **WP(C).No. 15131 of 2018** ## **PETITIONER/S:** **1 JAZEELA SHERIF W/O. A.M.SHERIF, RESIDING AT 47,GEM, TAGORE GARDENS,KUMARAPURAM, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM: 695 011,REPRESENTED BY HER FATHER AND POWER OF ATTORNEY HOLDER, M. MALUK MOHAMMED, S/O. MOIDEEN KANNU, RESIDING AT 47,GEM,TAGORE GARDENS,KUMARAPURAM, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM:695 011.** **2 ANOOP R S/O. P.N RAVINDRAN, RESIDING AT NEELAMBARAM, SASTHA NAGAR, SRA 216,PANGODE, THIRUMALA,THIRUVANANTHAPURAM:695 006.** **BY ADVS. SRI. PIRAPPANCODE V.S.SUDHIR SRI. JELSON J.EDAMPADAM** ## **RESPONDENT/S:** - **1 THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY,CORPORATION OFFICE, THIRUVANANTHAPURAM: 695 033.** - **2 THE SECRETARY THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM: 695 033.** - **3 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM 695 001.** - **4 INDIAN OIL CORPORATION REPRESENTED BY THE DIVISIONAL MANAGER,DIVISIONAL OFFICE, PREMIER PARK GROUND FLOOR,EANCHAKKAL BYE PASS** 2 W.P.(C) Nos.15131 & 17180 OF 2018 ## **ROAD, VALLAKKADAVU,THIRUVANANTHAPURAM: 695 008.** **BY ADVS. R1 & R2 BY SRI. M.K. CHANDRA MOHANDAS, SC R3 BY GOVERNMENT PLEADER, SRI. PAUL ABRAHAM VAKKANAL R4 BY SRI.M.GOPIKRISHNAN NAMBIAR SRI. JOSON MANAVALAN SRI. K. JOHN MATHAI SRI. KURYAN THOMAS SRI. PAULOSE C. ABRAHAM SRI. P. GOPINATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.08.2018, ALONG WITH WP(C). 17180/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGEMENT** The captioned writ petitions are materially connected in seeking implementation of the order passed by the Tribunal for Local Self Government Institutions by the petitioners in W.P.(C) No.15131 of 2018, and the challenge made by the 1[st] respondent, who is the 1[st] petitioner in the other writ petition against the order of the Tribunal. Therefore, I heard them together and propose to deliver a common judgment. Facts and documents available from W.P.(C) No.15131 of 2018 are relied upon for the disposal of the writ petitions. However, wherever separate facts are required, it would be supplied separately. 2. In pursuance of the application submitted by the 2[nd] petitioner, the 4[th] respondent, Indian Oil Corporation appointed him as Dealer of a Petroleum outlet. Initially, it 3 W.P.(C) Nos.15131 & 17180 OF 2018 was proposed to be set up in the property situated at Resurvey No.186 of Sasthamangalam Village, extending to 651 sq. mtrs. belonging to the 1[st] petitioner. Accordingly, application for obtaining the building permit was submitted by the 1[st] petitioner before the 1[st] respondent Corporation. Since the property is situated within 100 metres of Military Station Headquarters at Pangode, from the proposed construction, respondents 1 and 2, in accordance with Rule 5(5) of Chapter 2 of the Kerala Municipality Building Rules, have written a letter ascertaining as to whether it has any objection. Meanwhile, petitioners secured permission from each of the statutory authorities, including consent from the Kerala State Pollution Control Board for putting up the petrol bunk. 3. Though initially, the Military establishment refused permission, subsequently, by Ext.P10 letter of the Commanding Officer, 1[st] petitioner was directed to forward documents mentioned therein. Though the 1[st] petitioner complied with the said direction, there was no response thereafter. Accordingly, it was decided in the Adalat convened by the 1[st] respondent to send a reminder to the Station Commander, Military Station Headquarters, Thiruvananthapuram, seeking their views, and specifying, in the event of any failure to reply within 15 days of the receipt of the said reminder, the W.P.(C) Nos.15131 & 17180 OF 2018 4 1[st] respondent will be forced to grant permission irrespective of non-issuance of No Objection Certificate (NOC) by the Military authorities. Since there was no response within the stipulated period of 15 days, 2[nd] respondent issued Ext.P14 permit to the 1[st] petitioner, and on the strength of the same, the construction of the building was completed, and now what remains is formal commissioning of the petrol bunk. It is also submitted that, the 2[nd] petitioner purchased petroleum products worth more than Rs.7 lakhs and the same is now stored therein. 4. Matters being so, alleging that no NOC was obtained from the Military authorities, Ext.P20 stop memo is issued by the 1[st] respondent. The aforesaid notice was challenged in Appeal No.731/2017 before the Tribunal for Local Self Government Institutions, and by Ext.P29 order, the Tribunal, relying on the judgment of this Court in _**'Heera Constructions Private Limited v. Corporation of Thiruvananthapuram**_ ' [2008 (3) KLT 553] held that there cannot be any cancellation of the permit after completion of the construction in terms of the said permit and approved plan. However, held that the Secretary of the 1[st] respondent Corporation issued Ext.P14 permit, suppressing the letters dated 15.02.2016 and 20.07.2016 of the Military Establishment, which, according to the Tribunal, was gross dereliction of duty on her part, and W.P.(C) Nos.15131 & 17180 OF 2018 5 recommended departmental action. This again led to the issuance of Ext.P30 notice, denying Occupancy Certificate, on the very same ground for want of No Objection Certificate from the Military establishment. Similarly, 1[st] petitioner was also informed of the decision taken in the Adalat, to await the outcome of the decision in the appeal, which had already been filed, evident from Ext.P31 proceedings. Therefore, according to the petitioners, 1[st] respondent Corporation is duty bound to issue Occupancy Certificate to the 1[st] petitioner and also to quash Ext.P30 notice and Ext.P31 decision taken in the Adalat. 5. W.P.(C) No.17180 of 2018 is filed by the Corporation of Thiruvananthapuram, which is the 1[st] respondent in the other writ petition, seeking to quash Ext.P2 order passed by the Tribunal in Appeal No.731 of 2017 filed by the petitioner in the other writ petition, and for other related and consequential reliefs. According to the Corporation, the Tribunal has not taken into account the real intricacies of the requirement of No Objection Certificate from the Military, in view of the provisions of the Kerala Municipality Building Rules, and also the stipulations contained under the Defence of India Act, 1903. 6. That apart, it is pointed out that, even though the NOC was refused by the Military authorities, the then W.P.(C) Nos.15131 & 17180 OF 2018 6 Secretary of the Corporation has suppressed the fact, and has issued the building permit for construction of petrol bunk. The said aspect was clearly found out by the Tribunal, and therefore, the Tribunal went wrong in directing the Corporation to issue Occupancy Certificate to the petitioners. 7. Respondents 2 and 3 have filed a detailed counter affidavit in W.P.(C) No.17180 of 2018, refuting the allegations and reiterating the stand adopted in the other writ petition. Along with the same, communications from the Government of India, Ministry of Defence dated 17.11.2015 and communication dated 25.10.2016 are produced as Exts.R3(b) and R3(c). Ext.R3(d) is also a communication issued by the Government of India, Ministry of Defence dated 21.10.2016, dealing with the requirement of NOC in order to carry out constructions near to Defence establishments/installations. It is pointed out in Ext.R3(d) that, in accordance with PartA of Annexure to the said circular in respect of 193 stations shall apply up to 10 metres from the outer wall of such Defence establishments/installations to maintain clear line of sight for effective surveillance. Any construction or repair activity within such restricted zone of 10 metres will require prior No Objection Certificate from the Local Military Authority. It is further stated thereunder that, 7 W.P.(C) Nos.15131 & 17180 OF 2018 Defence establishments/installations located at 149 stations as listed in Part-B of Annexure to the circular shall apply up to 100 metres from the outer wall of such Defence establishments/installations to maintain clear line of sight for effective surveillance. So also, any construction or repair activity shall not be permitted within 50 metres. Other restrictions are also imposed thereunder. 8. However, as per clause 3 of the said circular, it is stipulated that, where local municipal laws require consultation or approval or NOC from the LMA/Station Commander before a building plan is approved, compliance to such statutory requirements shall continue to be applicable. Therefore, according to the petitioners, petitioners will not come within the stipulations contained under Ext.R3(d) circular, and there is no inhibitions created in order to issue the Occupancy Certificate to the petitioners. 9. I have heard learned counsel for the petitioners in both writ petitions and the learned Standing Counsel for the Indian Oil Corporation. Perused the documents on record and the pleadings put forth by the respective parties. 10. The question that emerges for consideration is, whether any interference is warranted to the order of the Tribunal for Local Self Government Institutions, specified above. On a perusal of the pleadings and evaluation of the W.P.(C) Nos.15131 & 17180 OF 2018 8 documents, it is evident that, construction was carried out by the petitioners in W.P.(C) No.15131 of 2018 as per Ext.P14 building permit issued by the Thiruvananthapuram Corporation. It is evident from Ext.P20 stop memo issued by the Corporation dated 05.08.2017 that, petitioners were directed to stop the construction activities on the basis of an alleged communication issued by the Military that NOC was not secured from them before carrying out the construction. Aggrieved, petitioners have challenged the order before the Tribunal, and the Tribunal, after appreciating the rival contentions made by the petitioners as well as the respondent Corporation, has entered into a finding that the petitioners have carried out the construction on account of Ext.P14 permit issued by the Corporation. It is true, a finding is rendered by the Tribunal that letters dated 15.02.2016 and 20.07.2016 received from the Defence establishment informing refusal of NOC are available in page Nos.225 and 47 respectively of Volume-II of the file, and it is evident that, respondent has issued Ext.P14 permit ignoring the said communications received from the Defence establishment. However, taking into account the judgment rendered by this Court in _**'Heera Constructions Private Limited**_ ' ( _supra_ ), held that, the irregular issuance of permit due to the negligence of the officers of the Corporation cannot be a reason for W.P.(C) Nos.15131 & 17180 OF 2018 9 cancelling the building permit issued in favour of the petitioners. 11. Now, the sole question that is called upon to be answered is, whether any manner of interference is warranted to the order rendered by the Tribunal. Learned counsel for the petitioners have also invited my attention to the judgment of this Court in W.A.No.132 of 2013 dated 02.06.2015, wherein, a similar question was considered _vis-avis_ non-issuance of NOC by the Kerala Coastal Zone Management Authority and held that, merely because the Maradu Municipality failed to obtain necessary NOC from the said authority, cannot be a reason to decline Occupancy to the petitioners therein, who have carried out construction on account of permit issued by the Municipality. Therefore, according to the learned counsel for the petitioners, taking into account the proposition of law laid down by this Court in _**'Heera Constructions Private Limited**_ ' ( _supra_ ), and the afore-quoted judgment of the Division Bench of this Court, it is clear that, petitioners have carried out the construction on the basis of the permit issued by the Corporation. There is no case for the Corporation that the permit conditions are violated by the petitioners. This is exactly the findings rendered by the Tribunal also. It is also evident from the photographs produced by the petitioners W.P.(C) Nos.15131 & 17180 OF 2018 10 that the construction is complete in all respects, and therefore, in my considered view, it is only appropriate that the Corporation is directed to issue Occupancy Certificate to the petitioners in W.P.(C) No.15131 of 2018. 12. Taking into account all these aspects, W.P.(C) No.15131 of 2018 is allowed to the above extent, and there will be a direction to the 1[st] respondent Corporation therein to issue Occupancy Certificate to the petitioners. Having found so, I am of the considered opinion that, there is no illegality, arbitrariness or any other legal infirmity in the order passed by the Tribunal, justifying interference of this Court under Article 226 of the Constitution of India. Resultantly, W.P.(C) No.17180 of 2018 fails, and accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** ## **Judge** ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE LETTER OF INTENT NO.N/2015/IN000077/KER/000009/4202/00008 DATED 17.04.2015 ISSUED BY THE 4TH RESPONDENT IN FAVOUR OF THE 2ND PETITIONER.** **EXHIBIT P2** **TRUE COPY OF THE REPORT NO.B-3037.2015 DATED 16.06.2015 OF THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM.** 11 W.P.(C) Nos.15131 & 17180 OF 2018 |**EXHIBIT P3**|**TRUE COPY OF THE REPORT NO.C-2-15626/2015**| |---|---| ||**DATED 17.06.2015 OF THE DISTRICT MEDICAL**| ||**OFFICER (HEALTH), DISTRICT MEDICAL OFFICE**| ||**(HEALTH), THIRUVANANTHAPURAM.**| |**EXHIBIT P4**|**TRUE COPY OF THE REPORT NO.D1-2646/2015**| ||**DATED 1.07.2015 OF THE EXECUTIVE ENGINEER,**| ||**PWD ROADS DIVISION, THIRUVANANTHAPURAM,**| ||**ADDRESSED TO THE DISTRICT COLLECTOR,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT P5**|**TRUE COPY OF THE CONSENT NO.PCB/TVM-**| ||**CO/ICE/PTP/166/2015 DATED 21.08.2015, ISSUED**| ||**BY THE ENVIRONMENTAL ENGINEER, POLLUTION**| ||**CONTROL BOARD, THIRUVANANTHAPURAM.**| |**EXHIBIT P6**|**TRUE COPY OF THE REPORT NO.A5-40981/15 DATED**| ||**30.07.2015 OF THE TAHSILDAR,**| ||**THIRUVANANTHAPURAM, TO THE DISTRICT**| ||**COLLECTOR, THIRUVANANTHAPURAM.**| |**EXHIBIT P7**|**TRUE COPY OF THE LETTER NO.D2-68234/2015/TC**| ||**DATED 07.10.2015 OF THE DISTRICT POLICE**| ||**CHIEF.**| |**EXHIBIT P8**|**TRUE COPY OF THE NO OBJECTION CERTIFICATE**| ||**NO.A17/45592/2015 DATED 03.12.2015 ISSUED BY**| ||**THE ADDITIONAL DISTRICT MAGISTRATE AND**| ||**DEPUTY COLLECTOR, THIRUVANANTHAPURAM.**| |**EXHIBIT P9**|**TRUE COPY OF THE PROCEEDINGS**| ||**NO.A/P/SC/KL/14/3317(P359193) DATED**| ||**30.06.2015 OF THE CONTROLLER OF EXPLOSIVES.**| |**EXHIBIT P10**|**TRUE COPY OF THE LETTER NO.471/NOC/11/Q4**| ||**DATED 29.03.2016, OF THE COMMANDING OFFICER**| ||**9 MADRAS(TRAVANCORE)PIN-911409, C/O.56 APO**| ||**ADDRESSED TO THE 1ST PETITIONER.**| |**EXHIBIT P11**|**TRUE COPY OF THE REMINDER**| ||**NO.E9/BA/114206/2016 DATED 27.07.2016 ISSUED**| ||**BY THE CORPORATION TO THE STATION COMMANDER,**| ||**MILITARY STATION, HEADQUARTERS,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT P12**|**TRUE COPY OF THE DECISION TAKEN IN THE**| ||**ADALATH ON 18.10.2016.**| |**EXHIBIT P13**|**TRUE COPY OF THE LETTER NO.E9/BA/114206/16**| ||**DATED 22.10.2016 OF THE 2ND RESPONDENT.**| 12 W.P.(C) Nos.15131 & 17180 OF 2018 |**EXHIBIT P14**|**TRUE COPY OF THE PERMIT NO.E9/BA/114206/15**| |---|---| ||**DATED 30.11.2016 ISSUED BY THE 2ND**| ||**RESPONDENT TO THE 1ST PETITIONER.**| |**EXHIBIT P15**|**TRUE COPY OF THE RECEIPT DATED 30.03.2017**| ||**SHOWING THE PURCHASE OF DIESEL WORTH**| ||**RS.7,52,959/- BY THE 2ND PETITIONER.**| |**EXHIBIT P16**|**TRUE COPY OF THE CIRCULAR DATED 18.05.2011**| ||**OF THE GOVERNMENT OF INDIA, MINISTRY OF**| ||**DEFENCE.**| |**EXHIBIT P17**|**TRUE COPY OF THE CIRCULAR DATED 17.11.2015**| ||**OF THE GOVERNMENT OF INDIA, MINISTRY OF**| ||**DEFENCE.**| |**EXHIBIT P18**|**TRUE COPY OF THE WRITTEN STATEMENT FILED BY**| ||**THE 2ND RESPONDENT BEFORE THE TRIBUNAL IN**| ||**APPEAL NO.358/2017.**| |**EXHIBIT P19**|**TRUE COPY OF THE ORDER DATED 04.07.2017 OF**| ||**THE TRIBUNAL FOR LOCAL SELF GOVERNMENT**| ||**INSTITUTION IN APPEAL NO.358/2017.**| |**EXHIBIT P20**|**TRUE COPY OF THE STOP MEMO NO.TP/E3/1138/08**| ||**DATED 05.08.2017 ISSUED BY THE TOWN PLANNING**| ||**OFFICER TO THE 1ST PETITIONER.**| |**EXHIBIT P21**|**TRUE COPY OF THE MEMORANDUM OF APPEAL**| ||**NO.731/2017 FILED BY THE PETITIONERS BEFORE**| ||**THE TRIBUNAL FOR LOCAL SELF GOVERNMENT**| ||**INSTITUTE, THIRUVANANTHAPURAM, WITHOUT ITS**| ||**ENCLOSURES.**| |**EXHIBIT P22**|**TRUE COPY OF THE STATEMENT FILED BY THE**| ||**RESPONDENTS 1 AND 2 BEFORE THE TRIBUNAL FOR**| ||**LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL**| ||**NO.731/2017.**| |**EXHIBIT P23**|**TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE**| ||**COMPLETION OF THE INDIAN OIL PETROLEUM**| ||**OUTLET AT THE PROPERTY BELONGING TO THE 1ST**| ||**PETITIONER.**| |**EXHIBIT P24**|**TRUE COPY OF THE APPOINTMENT**| ||**NO.LOA.REF.N/2016/IN000509/4202/00001 DATED**| ||**28.03.2017 ISSUED BY THE 4TH RESPONDENT TO**| ||**THE 2ND PETITIONER.**| |W.P.(C) Nos.15131 & 17180 OF 2018|13| |---|---| |**EXHIBIT P25**|**TRUE COPY OF THE AGREEMENT DATED 29.03.2017**| ||**ENTERED INTO BETWEEN THE 2ND PETITIONER AND**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P26**|**TRUE COPY OF THE CONSENT NO.PCB/TV-**| ||**DO/ICO/PTP/107/2018 DATED 09.03.2018 ISSUED**| ||**BY THE KERALA STATE POLLUTION CONTROL BOARD.**| |**EXHIBIT P27**|**TRUE COPY OF THE CERTIFICATE NO.B-1352/18**| ||**DATED 19.03.2018 ISSUED BY THE DIVISIONAL**| ||**OFFICER, FIR AND RESCUE SERVICE,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT P28**|**TRUE COPY OF THE COMPLETION CERTIFICATE**| ||**DATED 18.02.2018, ISSUED BY THE ARCHITECT**| ||**CONCERNED.**| |**EXHIBIT P29**|**TRUE COPY OF THE ORDER DATED 31.01.2018 OF**| ||**THE TRIBUNAL FOR LOCAL SELF GOVERNMENT**| ||**INSTITUTIONS IN APPEAL NO.731/2017.**| |**EXHIBIT P30**|**TRUE COPY OF THE NOTICE NO.TPE9/18724/18**| ||**DATED 06.04.2018 ISSUED BY THE TOWN PLANNING**| ||**OFFICER, TO THE 1ST PETITIONER.**| |**EXHIBIT P31**|**TRUE COPY OF THE PROCEEDINGS NO.TP**| ||**E9/18724/18 DATED 13.04.2018 CONTAINING THE**| ||**DECISION TAKEN ON THE ADALATH CONVENED ON**| ||**13.04.2018.**| |**EXHIBIT P32**|**TRUE COPY OF THE LETTER NO.751/26/L/E/2011**| ||**DATED 25.10.2016 OF THE ADDITIONAL DIRECTOR**| ||**(L/LA), DEFENCE ESTATES, DELHI CANTONMENT,**| ||**NEW DELHI.**| |**EXHIBIT P33**|**TRUE COPY OF THE LETTER NO.F11026/2/2011/D**| ||**(LANDS) DATED 21.10.2016, OF THE GOVERNMENT**| ||**OF INDIA, MINISTRY OF DEFENCE.**| RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## P.S. TO JUDGE St/-