Kallukadavu Muslim Jama-Ath MuHUYUDDIN SHEIK MASJID v. The District Collector Kollam District and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **WP(C).No.20685 OF 2020(I)** ## **PETITIONER:** **KALLUKADAVU MUSLIM JAMA- ATH MUHUYUDDIN SHEIK MASJID, SOUTH MYNAGAPPALLY, MYNAGAPALLY P.O., KOLLAM DISTRICT, REPRESENTED BY ITS PRESIDENT SRI.A.S.SHAJAHAN.** **BY ADV. SRI.NAVIA SEBASTIAN** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR KOLLAM DISTRICT – 691 001.** - **2 THE ASSISTANT ENGINEER, PWD (ROADS DIVISION), KARUNAGAPALLY, KOLLAM – 690 518** - **3 THE ASSISTANT EXECUTIVE ENGINEER, MARKET ROAD, KARUNAGAPALLY, KOLLAM – 690 518.** ## **SRI KP HARISH, SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20685 OF 2020** **2** **==> picture [37 x 10] intentionally omitted <==** ## **JUDGMENT** The Secretary of the Kallukadavu Muslim Jama-Ath was served with Exhibit P1 notice issued by the Assistant Executive Engineer, PWD Road Division, Karunagappally informing him that the wall built by the petitioner in front of the Muhiyuddin Sheikh Masjid which comes under the Jamat encroaches upon the Padanayarkulangara-Sasthamkotta Major District Road and they were asked to remove the encroachment within a period of three days. This writ petition is filed challenging the said notice. 2. The petitioner contends that the mosque was built about 40 years back and according to them, Ext.P1 notice was issued without properly demarcating the property of the petitioner and the State Highway. It is contended that there is considerable free space between the road and the compound wall of the Mosque and therefore, for the widening of the road, the removal of the wall is not required. Their grievance is that the petitioner has been discriminated against as other encroachments in the near vicinity remain untouched by the respondents. It is further stated that the petitioner was not even **WP(C).No.20685 OF 2020** **3** afforded an opportunity of being heard. The petitioner contends that stating their grievance, the petitioner has preferred Exhibit P5 representation before the respondents 1 to 3. However, no action was taken. It is further contended that on receipt of Exhibit P1 notice, the petitioner submitted Exhibit P6 representation seeking a reconsideration of the matter. This was also not responded to. It is in the above background that the petitioner has approached this Court with this Writ Petition seeking the following reliefs. - “1. Issue writ of Mandamus directing the 1st and 2nd respondent to carry out appropriate measurements from the starting of Padanayarkulangara - Sasthamkotta till mosque in order to decide the encroachment to the public property. 2. Issue an order or direction to the 1st, 2nd and 3rd respondent to take measures to ensure the equal approach to all encroachments on Padanayarkulangara - Sasthamkotta state highway.” 3. Miss. Navia Sebastian, the learned counsel appearing for the petitioner has reiterated the contentions raised by the petitioner in the writ petition. The learned counsel argued that the respondents are not justified in ordering the removal of the encroachment without even demarcating the property owned by the petitioner with the **WP(C).No.20685 OF 2020** **4** Padanayarkulangara- Sasthamkotta road. 4. Sri K.P. Harish, the learned senior Government Pleader has vehemently opposed the prayer. He contends that in connection with Major District Road improvement work, the land survey for fixing the road boundaries were entrusted with the revenue department and extensive survey was conducted during the period from 29.4.2019 to 3.7.2019. The Tahsildar, Land Record forwarded the survey sketches of encroachment and it was found that the petitioner had encroached upon road puramboke and had built a wall. Notice was issued and when attempts were made to demolish the same to complete the road widening within the plan period itself, a group of persons obstructed the work. A meeting was held in the presence of local leaders and the same was attended by the President and Secretary of the Masjid. Being satisfied that the construction was carried out by encroaching into the public road, they agreed to remove the same. When no steps were taken, Ext.P1 notice was issued. He would contend that the allegation that selective demolition was carried out is incorrect. According to the learned Government Pleader, even in the representation filed by the petitioner, they have admitted that the wall was built encroaching upon the highway and it is their case that the removal of such encroachment **WP(C).No.20685 OF 2020** **5** is not required for the development of the highway. 5. I have considered the submissions advanced. 6. Act 6 of 2000 was enacted to provide for the protection and development of highways and for the prevention of ribbon development and encroachment and use of highways for purposes which would adversely affect the safety of traffic and proper condition of highways in the State of Kerala. Highway has been defined under Section 2 (h) of the Act to mean any road, way or land declared as a highway under Section 3 and includes any land acquired or demarcated for construction of a highway. Section 3 of the Act provides for the declaration of roads, ways or land as highway. Section 3 reads as follows: 3. Declaration of roads, ways or land as highway.- (1) The Government may, by notification in the Gazette, declare any road, way or land appurtenant thereto to be a highway and classify it as a State highway or a hill highway or a major district road or any other category of road. Explanation.- For the purpose of classification of highways under this section, important roads within a district or adjourning districts serving areas of production and market and connecting these with each other or with a State highway or a national highway shall be considered as a major district road and arterial routes of the State linking district headquarters and important cities or towns or important places of tourist interest or pilgrim centers within the State and connecting them with national highways or highways or neighbouring States shall be considered as a State highway. (2) Every notification under sub-section (1) shall also be published by Government in at least two daily news papers having wide circulation in the area to which the notification **WP(C).No.20685 OF 2020** **6** ## relates. 7. In other words, an exhaustive definition has been given to the term Highway in the Kerala Highway Protection Act, 1999. Important roads within a district or adjourning districts serving areas of production and market and connecting these with each other or with a State highway or a national highway are to be considered as a Major District Road and arterial routes of the State linking district headquarters and important cities or towns or important places of tourist interest or pilgrim centers within the State and connecting them with national highways or highways of neighbouring States shall be considered as a State highway. 8. Section 2(f) defines encroachment to mean occupation of a highway or part thereof for purposes other than traffic and any act which causes damage to the highway and includes unauthorised erection of a building or any other permanent or temporary structure, balcony, porches, facades or projections on or over or overhanging the highway. The duties of the highway authority among other things is to prevent and remove the encroachments. Section 11 of the Act also mandates that the highway authority shall conduct annual checks of the boundaries of the highway in its charge with a view to locate and remove the **WP(C).No.20685 OF 2020** **7** encroachments. Under Section 12, the highway is deemed to be Government property and Section 13 of the Act proscribes any person from occupying or continuing to occupy any highway or part of a highway other than for traffic. Section 15 of the Act provides for removal of encroachment. Section 15 reads as follows: 15. Removal of encroachment.- (1) Where, as a result of the annual check of highway boundaries made under section 11 or otherwise, the highway authority is satisfied that an encroachment has taken place on the highway under its jurisdiction, it shall serve a notice on the person responsible for the encroachment to remove the encroachment within such time as may be specified in the notice and if the person fails to comply with the notice the highway authority or the officer authorized by it in this behalf shall cause the encroachment to be removed, with the assistance of police, if required. (2) Whenever an encroachment is made for the purpose of exposing articles for sale or for opening temporary booth for vending or publicity or for other like purposes, the highway authority shall with the help of police, if necessary, have such encroachment summarily removed. 9. In the case on hand, what is apparent is that certain constructions have been carried out encroaching upon the major district road and admittedly, the petitioner has not sought for previous permission under Section 21 of the Act before carrying out the **WP(C).No.20685 OF 2020** **8** construction. 10. Section 19 of the Act imposes a restriction on use of land between the Highway boundary line and the building line. The said provision reads as follows: 19. Restriction on use of land between the highway boundary and building line.- - (1) Notwithstanding anything contained in any other law for the time being in force or in any agreement or other instrument, no person shall,- - (a) construct, form or lay out any means of access to or from a highway, or a compound wall without a written permission of the highway authority; or - (b) erect or re-erect any building or materially alter the outside structural features of any existing building including any additions; or - (c) alter the level of land by lowering, raising, digging or filling up except with the written permission of the highway authority; or (d) construct, form or lay out any works,upon land lying in between the boundary of a highway and the building lines determined in respect of that highway: Provided that these restrictions shall not apply to any work in connection with the repair, renewal, enlargement or maintenance or improvement of any sewer, drain, electric line, pipe, duct or other apparatus, constructed in or upon the land before the date of commencement of this Act. (2) Where any building or any part thereof lies within the area between the building line and the boundary of a high way, the highway authority may, whenever such building or part thereof is to be rebuilt for any reason, by notice require that such building be set back to the building line. **WP(C).No.20685 OF 2020** **9** 11. In other words, there is a blanket prohibition in carrying out any construction upon land lying in between the boundary of a highway and the building lines determined in respect of that highway and if any construction is carried out, the highway authorities shall by notice require that the construction be set back to the building line. The statute also provides for seeking permission and if the request is refused, the party aggrieved can challenge the same before the appellate authority. 12. The records made available would show that the petitioner has in fact encroached upon road puramboke and that the construction put up by them is an impediment in carrying out the road development works. A proper survey was conducted and a notice was issued calling upon the petitioner to remove the encroachment. In the representation filed by the petitioner, a copy of which is produced as Ext.P5, the petitioner has admitted that the construction was effected by encroaching into public land. Their only contention is that the wall built by them encroaching upon public land need not be demolished for the purpose of widening. 13. In **Union of India v. State of Gujarat and Ors.** [(2011) 14 SCC 62], the Hon’ble Supreme Court taking note of the rampant **WP(C).No.20685 OF 2020** **10** encroachments and unauthorised religious constructions in public streets/lands, places had suggested urgent remedial measures to be taken. After impleading all States and Union Territories, the following order was passed: As an interim measure, we direct that henceforth no unauthorised construction shall be carried out or permitted in the name of temple, church, mosque or gurdwara, etc. on public streets, public parks or other public places, etc. In respect of the unauthorised construction of religious nature which has already taken place, the State Governments and the Union Territories shall review the same on case-to-case basis and take appropriate steps as expeditiously as possible. **==> picture [310 x 42] intentionally omitted <==** Having considered the facts in all its perspectives, I find no reason to exercise the discretionary powers of this Court and interfere with Ext.P1 notice. This writ petition will stand dismissed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** DSV **WP(C).No.20685 OF 2020** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 NOTICE FOR REMOVAL OF COMPOUND WALL DATED 14.09.2020 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P2 PHOTOGRAPH OF THE MUHUYUDDIN SHEIK MASJID. EXHIBIT P3 PHOTOGRAPH OF AALTHARA. EXHIBIT P4 PHOTOGRAPH OF AALTHARA. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE 1ST, 2ND AND 3RD RESPONDENTS DATED 10.09.2020.** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE 3RD RESPONDENT DATED 16.09.2020.** **RESPONDENTS EXHIBITS:NIL**