K.J. Joy and Chacko Mali James v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932** ## **WP(C).No. 6129 of 2010(M)** **-------------------------------------** **PETITIONERS:** - **---------------------** **1. K.J.JOY, AGED 49 YEARS, S/O.JOSEPH, KAROTTU VEETTIL, MALAYINKEEZHU, KOTHAMANGALAM.** **2. CHACKO MALI JAMES, AGED 69 YEARS, S/O.CHACKO, HILL TOP VILLA, NOORMAVU, MALLAPILLY, AANIKKAD, MUVATTUPUZHA.** **BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, ADV. SRI.PEEYUS A.KOTTAM.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIT, TRIVANDRUM-695 001.** **2. THE EXECUTIVE ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, KERALA STATE TRANSPORT PROJECT (KSTP) DIVISIONAL OFFICE, REST HOUSE COMPOUND, MUVATTUPUZHA P.O, ERNAKULAM DIST.** **3. THE ASSISTANT ENGINEER, KERALA PUBLIC WORKS DEPARTMENT, KERALA STATE TRANSPORT PROJECT (KSTP) DIVISIONAL OFFICE, REST HOUSE COMPOUND, MUVATTUPUZHA P.O, ERNAKULAM DIST.** **4. THE CHANGANASSERY MUNICIPALITY, CHANGANASSERY, REPRESENTED BY ITS SECRETARY.** **R1 TO R3 BY GOVERNMENT PLEADER SRI. K.V. MANOJ R4 BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON 15/07/2010 DELIVERED THE FOLLOWING:** **W.P.(C). NO.6129/2010-M:** **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE BUILDING PERMIT DTD. 26/11/1999 ISSUED BY R.4. TO PETITIONERS.** **EXT.P.2: COPY OF THE ORDER DTD. 23/11/2002 ISSUED BY R.4. TO PETITIONERS.** **EXT.P.3: COPY OF THE NOTICE DTD. 11/06/2007 ISSUED BY SPECIAL TAHAZILDAR (LA) (NH), CHANGANASSERY.** **EXT.P.4: COPY OF THE GO(RT).NO.1296/08/PWD ISSUED BY ADDITIONAL SECRETARY.** **EXT.P.5: COPY OF THE G.O.(RT).NO.386/09/PWD DTD. 03/03/2009 ISSUED BY ADDITIONAL SECRETARY.** ## **EXT.P.6: COPY OF THE RECEIPT DTD. 08/04/2009 ISSUED CHANGANASSERY MUNICIPALITY ISSUED TO PETITIONER AND REPRESENTATION AND ORDER.** ## **EXT.P.7: COPY OF THE BUILDING CONSTRUCTION PERMISSION DTD. 24/06/2009 ISSUED BY CHANGANASSERY MUNICIPALITY TO THE PETITIONERS.** ## **EXT.P.8: COPY OF THE PLAN APPROVED BY CHANGANASSERY MUNICIPALITY.** **EXT.P.9: COPY OF THE CIRCULAR DTD. 21/04/2009 ISSUED BY THE DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS.** ## **EXT.P.10: COPY OF THE NOTICE DTD. 19/02/2010 ISSUED BY ASSISTANT ENGINEER, KPWD.** **EXT.P.11: COPY OF THE LETTER NO. EE/3979/2008 DTD. 13/02/2009 ISSUED BY EXECUTIVE ENGINEER, PWD DIVISION (ROADS).** **EXT.P.12: COPY OF THE LETTER NO. GL/2003 DTD. 05/03/2010 ISSUED BY ASSISTANT ENGINEER, PWD ROADS SECTION, CHANGANASSERY.** **EXT.P.13: COPY OF THE LETTER NO. GL/2003 DTD. 17/10/2003-2010 ISSUED BY ASSISTANT ENGINEER, PWD ROADS SECTION, CHANGANASSERY.** ## **RESPONDENTS' EXHIBITS:** **EXT.R2: COPY OF THE STOP MEMO ISSUED BY THE R.2.** **EXT.R2.(A),(B),(C): COPY OF THE RELEVANT PORTION OF THE HPA.** **EXT.R2.(D): COPY OF THE CIRCULAR INSTRUCTION DTD. 04/07/2006.** **EXT.R.(2) 8 SERIES (13 NOS.): COPY OF THE STOP MEMO AND NOTICES ISSUED BY THE R.3.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 6129 of 2010-M** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 15th day of July, 2010.** ## **JUDGMENT** The petitioners were granted building permit by the fourth respondent Municipality to construct a commercial building. They are aggrieved by a stop memo issued by the second respondent as Ext.P10, on the ground that no objection has not been obtained from the K.S.T.P. (Kerala State Transport Project), as the road in question is one notified under the Highway Protection Act as a Highway. 2. The petitioners were initially granted building permit as per Ext.P1 in 1999 and they jointly own 8 cents of land. There was a condition in Ext.P1 that they should provide parking lot. According to the petitioners, there was a dispute with the neighbouring property owners which led to the delay in completing the construction and the petitioners had to give two cents of land to a neighbour. The period of Ext.P1 permit was extended as per Ext.P2, for a period of three years from 23.11.2002 and it was further extended from 26.11.2005 for another period of three years, during which period they completed the foundation and piling work. In the year 2007 a stop memo was issued by the Special Tahsildar (LA), National Highway wpc 6129/2010 2 stating that acquisition proceedings are pending against the petitioners; property. A copy of the stop memo is produced as Ext.P3. The petitioners moved the Government in the matter and pursuant to the directions issued by this Court in W.P.(C) No.23068/2004 the Government passed Ext.P4 order exempting the petitioners' property from acquisition. One of the conditions in Ext.P4 that the ground floor of the building be set up for public parking whenever the building is constructed, was deleted by a a later order, Ext.P5. Again, renewal of the permit was sought for, which was granted by the Municipality as per Ext.P7. It is at that stage Ext.P10 stop memo was issued. 3. The petitioners are relying upon Ext.P9 circular issued by the Government to show that the building line and control line have not been published in the official gazette and therefore there is no embargo in issuing a building permit. The said circular is issued by the Local Administration Department of the Government. It is therefore contended that unless such a notification is issued under Section 18 of the Kerala Highway Protection Act, the second respondent cannot insist for a no objection from him. It is further contended that KSTP is only a project and the Executive Engineer of the Project is not empowered to issue a stop memo also. Ext.P11 is a communication issued by the Executive Engineer, P.WD Division (Roads) wpc 6129/2010 3 to the Assistant Executive Engineer, Roads Sub Division, to the effect that till fresh orders are passed by the Government, even without NOC from the Roads Division, the local authorities can issue building permits. This is also relied upon by the petitioners. Ext.P12 is a later stop memo issued, which was later withdrawn as per Ext.P13, in the light of Ext.P11. 4. The respondents have filed a counter affidavit and an additional counter affidavit and the petitioners have filed a reply affidavit also. 5. Learned Senior Counsel Shri K. Ramakumar, appearing for the petitioners submitted that the second respondent has no power to issue the stop memo as K.S.T.P. is only a project. It is further pointed out that unless there is a notification published in terms of Section 18 of the Highway Protection Act notifying building line and control line, the second respondent cannot insist for a no objection under Section 19 of the Act. It is submitted that the said question is covered in favour of the petitioner by a decision of this Court in **Peer Mohammed v. Chirakandam Grama Panchayat** (2008 (3) KLT 300). 6. In the counter affidavit filed by the second respondent, mainly it is contended that the property of the petitioners is by the side of M.C. Road in Changanacherry town. It is part of a Highway and the Chengannor- wpc 6129/2010 4 Kottayam reach is included in the upgradation project of the KottarakkaraChengannore-Kottayam reach. The alignment plan was prepared and approved by the Government in 2004 and boundary stones for acquisition of land was planted by the KSTP in the year 2005. the notification under Section 4(1) of the Land Acquisition Act was published in the Gazette on 13.4.2007 and the petitioners' property was included in the land acquisition also. The exemption granted by the government as per Ext.P4 is admitted in para 3 of the counter affidavit. The substantial contention raised is that as the Highway boundaries have been demarcated by planting stones, as per Section 21 of the Act, the petitioners should have made an application in writing to the second respondent for permission to erect a building. It is further pointed out that the second respondent is appointed as the Highway Authority in respect of the area, under Section 4 of the Act and the Chief Engineer, P.W.D., National Highways has issued Ext.R2(d) circular to the effect that it should be ensured that at least 5 meter road clearance should be strictly enforced for any type of construction on the road side under the Highway Protection Act. In the additional counter affidavit filed by the second respondent, it is pointed out that the construction made by the petitioners is between the boundary of highway and the building line of the road. The area having width of 5 meters from the boundary of the road is to wpc 6129/2010 5 be kept as without any construction as provided under Section 19 of the Act. Exts.P9 and P11 are pertaining to the restriction on construction over the area covered by the building line and control line. Once the area is demarcated for the Highway under Section 2(h) of the Act, the restrictions will come into effect. It is also pointed out that the Municipality has issued the permit without considering that the existing Highway is having width of 15 meters, whereas the petitioner has shown in the plan the width as 11.90 meters only. It is therefore submitted that the plan Ext.P8 is against the Highway Protection Act. 7. In the counter affidavit filed by the Municipality, it is pointed out that in the absence of a notification under Section 18(2) of the Act, the no objection by the second respondent is not necessary. It is further pointed out that in the building permit, the petitioners were directed to carry on the construction activities only after leaving 10.50 meters from the central line of the M.C. Road. As per the Master Plan of the Municipality, the width of the M.C. Road is 15 meters and the building permit was granted after leaving a space of 10 to 15 meters from the central line of M.C. Road. 8. The substantial contention raised by the learned Govt. Pleader is by relying upon Section 2(h) and Section 19 of the Highway Protection Act. It is further pointed out that the second respondent is an authority under the wpc 6129/2010 6 Highway Protection Act and therefore the stop memo has been issued legally and validly. The second respondent's objection therefore is that no construction can be made between the boundary of the Highway and the building line of the road. 9. Evidently, the fixation of boundary of the Highway and building line is done as per Section 18 of the Act. Section 18 confers power on the competent authority to determine building line and control line in respect of any category of highway. Section 18(2) provides that 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 newspapers by the competent authority. Section 19(1) prohibits construction upon land lying between the boundary of a highway and the building lines without permission and Sections 20 and 21 prescribes the procedure for getting previous permission from the Highway Authority for construction of building between building line and control line. 10. But, herein the question is whether without a notification under Section 18(2) of the Act, the respondents can insist that the petitioners should obtain a permission as contemplated in the Highway Protection Act. The very same issue was considered by this Court in **Peer Mohammed's** wpc 6129/2010 7 **case** (2008 (3) KLT 300). It was held that the notification and paper publication under Section 18(2) is mandatory and it can take effect only from the date of publication. The contention that the provision is only directory, was not accepted. I respectfully agree with the said view. 11. Therefore, the restrictions under Sections 19 and 20 and the procedure for obtaining permission from the Highway Authority, cannot be insisted by the second respondent in the absence of a notification under Section 18(2). There is no case that such a notification is in existence here and hence the stop memo issued as per Ext.P10 cannot hold good. 12. There is controversy between the parties with regard to the question whether the property of the petitioners was notified at all under the Land Acquisition Act. It is mentioned in Ext.P3 stop memo that the property in Block No. and Sy. No.106/25-1, 106pt and 106/25 are notified for acquisition. The same is dated 11.6.2007. The petitioners approached the Government and by Ext.P4 the Government ordered that the land in Sy. No.102/25-1 & 25-2 in Changanacherry Town proposed for acquisition for parking purpose will be exempted from acquisition subject to the condition that the party would set apart the ground floor of the building for public parking whenever the building is constructed. The said condition was deleted by Ext.P5 order dated 3.3.2009. Even though in the counter wpc 6129/2010 8 affidavit it is mentioned that Section 4(1) notification was issued, no details have been furnished and the petitioners in the reply affidavit, have refuted the said contention also. What is evident from the counter affidavit is only that an alignment was approved by the Government and boundary stones have been planted. But as noted already, the second respondent has sought to justify the action relying upon the provisions of the Highway Protection Act, which obviously, in the absence of a notification under Section 18(2) of the Act, cannot help the second respondent in issuing a stop memo. In fact, the Government by Ext.P9 circular, was also of the view that the restrictions under the Highway Protection Act can be enforced only after publication of a notification under Section 18 and so far no such notification has been issued and therefore the building permits can be issued. Even though it is sought to be explained away in the additional counter affidavit, by stating that the same applies only in the case of the area between building line and control line, as already noticed, since the notification under Section 18(2) is not issued, such a contention cannot be accepted. 13. Learned Govt. Pleader, by relying upon Section 2(h) of the Act, contended that if any demarcation is there, then also the same will form part of the Highway. True that the definition of 'highway' includes any land acquired or demarcated for construction of a highway. But the demarcation wpc 6129/2010 9 alone cannot help the second respondent to impose restrictions under Section 19 or other Sections, in the absence of a notification under Section 18(2), as held by this Court in **Peer Mohammed's case** (2008 (3) KLT 300). Therefore, the said contention also cannot be accepted. 14. It is evident from the counter affidavit filed by the Municipality that the building plan has been approved by taking width of the highway as 15 meters. Therefore, the contention raised by the second respondent that the width of the highway shown in the plan was only 11.50 meters, does not appear to be correct. For all these reasons, the writ petition is allowed. Ext.P10 is quashed. The petitioners are entitled to complete the construction in terms of the building permit and plan approved by the Municipality. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**