Mary Joy v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **WP(C).No.13285 OF 2020(I)** ## **PETITIONER/S:** **MARY JOY, AGED 53 YEARS, W/O.(LATE) T.V.JOY, 37/1042-A, THAKKANATH, SUBHASHCHANDRA BOSE ROAD, KAVANATHARA P.O., ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM-682020.** **BY ADV. SRI.K.SHAJ** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DISTRICT DISASTER MANAGEMENT AUTHORITY, REPRESENTED BY ITS CHAIRMAN AND DISTRICT COLLECTOR, DISTRICT COLLECTORATE, FIRST FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM-682030.** - **3 DISTRICT COLLECTOR, DISTRICT COLLECTORATE, FIRST FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM-682030.** - **4 EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, ERNAKULAM, CIVIL STATION, THRIKKAKARA, KAKKANAD, ERNAKULAM, PIN-682030.** - **5 THE KOCHI MUNICIPAL CORPORATION, KOCHI, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KOCHI MUNICIPAL CORPORATION, PARK AVE RD, MARINE DRIVE, KOCHI, KERALA, PIN-682011.** - **6 THE SECRETARY,KOCHI MUNICIPAL CORPORATION, OFFICE OF THE KOCHI MUNICIPAL CORPORATION, PARK AVE RD, MARINE DRIVE, KOCHI, KERALA,PIN-682011.** ## **OTHER PRESENT:** ## **SRI.S.SUDHEESH KUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.13285 OF 2020(I)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.13285 Of 2020 --------------------------------Dated this the 24[th] day of July, 2020. ## **J U D G M E N T** ## The case set up in this Writ Petition (Civil) is as follows: _That as part of Operation Breakthrough, initiated by the 2[nd] respondent, District Disaster Management Authority, as per the power vested in it under Section 30 of the Disaster Management Act, 2005, the thodu in front of the petitioner’s property consisting of shoprooms, was widened and as a result, the property has become inaccessible to the public road in front of the said thodu. As the petitioner’s access to the public road was destructed due to an act of the state under the DM Act, and as the petitioner had volunteered to build a bridge across the thodu at her expense, the authority under the DM Act gave her Exhibit P6 NOC for construction of a bridge, it is averred. By virtue of Section 72 of the Act, the issuance of Exhibit P6 NOC is sufficient enough to enable the petitioner to construct the bridge and the petitioner need not obtain any permission under the KMBR, 1999, but had also applied for one, as evidenced by Exhibits P4 and P5 receipt. Even though the 5[th] respondent directed the petitioner to approach the DDM Authority, has now issued Exhibit P7 stop memo on the lame ground that the petitioner has not obtained building permit. The petitioner seeks quashing Exhibit P7 stop memo._ 2. The main contentions urged by the petitioner are as follows: ::3:: **WP(C).No.13285 OF 2020(I)** _A. The fifth respondent has no manner of right to issue Exhibit P7 order to stop the construction of the bridge as the right of access of the petitioner to the public road was destructed as part of the work done as per the provisions of the DM Act and on the petitioner volunteering to construct the bridge for accessing the road at her own cost, the DDMA gave her NOC. Thus the work done by the petitioner can only be construed as part of the work under the DM Act._ _B. Section 72 of the Act states that the provisions of the Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Thus,_ _by virtue of the overriding power vested in the second respondent under Section 72 of the DM Act, the petitioner need not obtain building permit under the Kerala Municipality Building Rules, 1999, especially when Exhibit P6 NOC has already been issued by an authority under the DM Act._ _C. Further, the petitioner has got a right of access from her property to every point of the public way, and the said right cannot be deprived by the fourth and fifth respondents. This Hon’ble court, in its decision in_ _**Tanoor Panchayat v. Kunhiamutty** reported in_ _**1978 KLT 813** has held that an owner of land adjoining a highway is entitled to as a matter of private right access to such highway at any_ ::4:: **WP(C).No.13285 OF 2020(I)** _point at which his land actually touches it. The rights of an abutting owner apply not only to the highway proper, but also to essential parts of the highway such as bridges and overpasses._ 3. It is in the light of these factual averments that the petitioner has filed the instant Writ Petition seeking the following reliefs: - _“A. To call for the records leading to the passing of Exhibit P7 stop memo and to issue an order of certiorari quashing the same;_ - _B. To declare that the petitioner is entitled to construct a bridge on the strength of Exhibit P6 NOC issued under the Disaster Management Act, 2005 for her access to the public road and that she is not required to obtain a building permit under the Kerala Municipality Building Rules, 1999._ - _C. To stay the operation of Exhibit P7 stop memo and to allow the petitioner to construct a bridge on the strength of Exhibit P6 NOC for her access to the public road;_ - _D. To pass such orders as this Hon’ble Court deems fit and proper and to allow the costs of the writ petition to the petitioner.”_ 4. Heard Sri.K.Shaj, learned counsel appearing for the petitioner, Sri.K.J.Manu Raj, learned Government Pleader appearing for respondents 1 to 4 and Sri.S.Sudheesh Kumar, learned Standing Counsel appearing for respondents 5 & 6 (Kochi Municipal Corporation). 5. It is the case of the petitioner that as part of the ' _Operation Breakthrough_ ' initiated by the 2[nd] respondent-Disaster Management Authority under the Chairmanship of the District ::5:: **WP(C).No.13285 OF 2020(I)** Collector as well as the respondent-Kochi Municipal Corporation authorities, the _thodu_ in front of the petitioner's property in front of the shoproom was widened by taking steps under the powers under the Disaster Management Act and as a result, petitioner's property has become in accessible to the public road in front of the said _thodu_ . Further that, since the petitioner's access to the public road was thus obstructed due to said steps taken pursuant to the provisions of the Disaster Management Act, the petitioner has volunteered to built access through the _thodu_ at her expense and the competent authority under the Disaster Management Act has given Ext.P-6 permission/NOC to the petitioner for constructing 3 meter width bridge to enable the petitioner to have access from the public road to her property. Ext.P-6 is the proceedings dated 7.3.2020 issued by the 4[th] respondent, which reads as follows: "മമൈനർ ഇററിഗഗേഷൻ ഡറിവറിഷൻ എറണണാകുളളംഎകറികക്യൂടട്ടീവവ എൻജറനടയ ടട കണരരണലയതറടല നടപടറ മള ി ്ടീ റു െ ാ ാ ി െ െിക്ര ൈം (സണാനറിധരളം : ബണാജറിചന്ദ്രൻ. ആർ ) വറിഷയളം :- ഓപ്പഗറഷൻ ഗബ്രേകവ ത്രൂ കണാരണഗകണാടെളം കനണാലറിനവ കുറുടക ഒ. പുതറിയ സണാബവ നറിർമറിക്കുനതറിനവ എൻ. സറി നൽകുനതവ സളംബനറിചവ. സൂചന :- ശട്ടീമൈതറി. ഗമൈരറി ഗജണായറിയുടടെ കതവ. ഉതരവവ നളം. ഒ . ബറി. ററി/ ഇ. ഇ /2019-20 തറിയ്യതറി07/03/2020 ::6:: **WP(C).No.13285 OF 2020(I)** ഓപ്പഗറഷൻ ഗബ്രേകവ ത്രൂ ഡറി. ഡറി. എളം. എ. എറണണാകുളതറിടന കട്ടീഴറിൽ കനണാൽ വൃതറിയണാക്കുനതറിടന ഭണാഗേമൈണായറി കരണഗകണാടെളം ഗതണാടെറിനവ കുറുടക പണറിതറിട്ടുള്ള സണാബുകൾ ടപണാളറിചവ മൈണാഗറണ്ടതണായറി വനറിട്ടുണ്ടവ. സസ്വനളം പുരയറിടെതറിഗലകവ (പഗവശറിക്കുവണാൻ പുതറിയ സണാബവ സസ്വനളം ചറിലവറിൽ നറിർമൈറിക്കുനതറിനുള്ള അനുമൈതറികണായറി ശട്ടീമൈതറി. ഗമൈരറി ഗജണായറി ഡറി. ഡറി. എളം. എ കവ അപപേക്ഷ നലലലല്കിയല്കിട്ടുണ്ടവ. 3.3.2020 ൽ ഡറി. ഡറി. എളം. എ ൽ കൂടെറിയ ടടെകറികൽ കമറിററിയുടടെ ഗയണാഗേതറിടന മൈറിനറിറവസറിൽ ടചയർമൈണാനവ എൻ.ഒ.സറി നൽകണാവുനതണാടണനവ കളക്ടർ അററിയറിചറിട്ടുണ്ടവ. ഓപ്പഗറഷൻ ഗബ്രേകവ ത്രൂ ടന ഭണാഗേമൈണായറി ടപണാളറിചവ നട്ടീഗകണ്ടറി വരുന പണാലതറിനവ പകരമൈണായറി 14/11/2019 ടല ഗേവൺടമൈൻറവ ഓർഡർ നളം. WI / NOC/12511/2018 പ്രകണാരളം, നറിർമറിതറിയുടടെ ആവശരകത പരറിഗേണറിചവ നറിലവറിലുള്ള ഇററിഗഗേഷൻ നറിർമറിതറികൾകവ ഗകടുപണാടുകൾ വരുതണാടതയുളം നട് **ട** ീരണാഴുകവ തടെടസ്സെപ്പടുതണാടതയുളം മഹൈഗഡണാളറികവ പർടറിക്കുഗലഴറിനവ മൈണാറളം വരുതണാടതയുളം റവനക്യൂ ചടങ്ങൾ പണാലറിചളം ടപണാതു നറിബനനകൾ കവ വറിഗധയമൈണായുളം 3.00 മൈട്ടീറർ വട്ടീതറിയറിൽ പണാലളം നറിർമറിക്കുന പ്രവൃതറികവ നറിരണാഗക്ഷേപപതളം അനുവദറിചവ ഉതരവണാകുന. എകറികക്യൂടട്ടീവവ എഞറിനട്ടീയർ ഇററിഗഗേഷൻ വലകപല പകർപ്പവ: ബനടപ്പട അസറിസ്റ്റനവ എഞറിനട്ടീയർ, ഗകണാർപഗറഷൻ ടസക്രടററി ടകണാചറിൻ ഗകണാർപ്പഗറഷൻ.” The complaint of the petitioner is that when she was taking steps to construct the access bridge strictly in terms of Ext.P-6 permission, respondents 5 & 6 have issued the impugned Ext.P-7 stop memo dated 5.6.2020 directing the petitioner to stop the said activity, etc. It is this order at Ext.P-7 that is under challenge in this Writ Petition. 6. The petitioner would contend that since the petitioner has already secured permission as per Ext.P-6 permit in accordance with the provisions contained under the Disaster Management Act in terms of Ext.P-6, that alone is sufficient to enable the petitioner to ::7:: **WP(C).No.13285 OF 2020(I)** construct access bridge having a width of 3 meter in order to enable the petitioner to have access from public road to her property and no separate permit is necessary from respondents 5 & 6. 7. Sri.S.Sudheesh Kumar, learned Standing Counsel appearing for Kochi Municipal Corporation appearing for respondents 5 & 6 would submit that on the previous occasion, the petitioner had secured Ext.P-1 permission on 6.4.2020 from the 6[th] respondent-Secretary of the Kochi Municipal Corporation for constructing the said access bridge and that in case the petitioner makes the requisite application for granting permission in terms of Ext.P-1, then the 6[th] respondent will grant such permission in the light of Ext.P-6 permission issued by the 4[th] respondent and subject to compliance of the conditions in Ext.P-6. 8. Accordingly, it is ordered that the petitioner may file a formal application before the 6[th] respondent-Secretary of the Kochi Municipal Corporation seeking for issuance of proceedings granting formal permission for the activity already permitted in Ext.P-6 as granted earlier in terms of Ext.P-1. Such application may be filed by the petitioner within one week from the date of receipt of a certified copy of this judgment. On receipt of such application, the 6[th] respondent will afford opportunity of being heard to the petitioner ::8:: **WP(C).No.13285 OF 2020(I)** and then should pass appropriate orders granting such permission in terms of Ext.P-6 and as already ordered in Ext.P-1 without much delay, preferably within a period of 2 weeks from the date of receipt of a certified copy of this judgment. If there is any unnecessary delay in the matter, the petitioner may proceed with the construction of the access bridge strictly in terms of the conditions laid down in Ext.P-6 and such construction should also be the supervised by the 4[th] respondent-Executive Engineer of the Irrigation Department who has issued Ext.P-6. 9. Sri.S.Sudheesh Kumar, learned Standing Counsel for respondents 5 & 6 would submit that this Court may clarify and order that the petitioner will not have exclusive ownership over the access bridge and it is only on permission granted by the 6[th] respondent to enable the petitioner to have access from the public road to her private property and any permission to be granted by the 6[th] respondent will be subject to the condition that respondents 5 & 6 will have the rights to all incidental and ancillary works in relation to maintenance of the canal in question and in such maintenance activity if it is necessary that the access bridge is to be removed temporarily for the purpose of such works, the petitioner will have to adhere to such terms and conditions so as not to interfere with the ::9:: **WP(C).No.13285 OF 2020(I)** regulatory powers of the respondent-Kochi Municipal Corporation for doing maintenance work. 10. After hearing both sides, this Court is of the considered view that the abovesaid submission made by the Standing Counsel for respondents 5 & 6 appears to be reasonable and such appropriate conditions may also be laid down by the 6[th] respondent in the proceedings to be issued granting permission to the petitioner, but such conditions should be only for the purpose of maintenance work and only for short term and temporary purpose and should not lead to unnecessary inconvenience to the petitioner. The petitioner will produce a certified copies of this judgment along with copies of the memorandum of Writ Petition with all exhibits before respondents 4 & 6 for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::10:: **WP(C).No.13285 OF 2020(I)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF BUILDING PERMIT DATED 6.4.2000 ISSUED BY THE CORPORATION OF COCHIN TO THE PREDECESSOR-IN-INTEREST OF THE PETITIONER.** **EXHIBIT P2** - **THE TRUE COPY OF PHOTOGRAPHS OF THE WAY OF ACCESS AND THE BUILDING OF THE PETITIONER BEFORE THE REMOVAL OF THE SLABS AT THE INSTANCE OF THE SECOND RESPONDENT.** - **EXHIBIT P3 THE TRUE COPY OF MINUTES OF THE DISTRICT DISASTER MANAGEMENT AUTHORITY MEETING HELD ON 3.3.2020.** - **EXHIBIT P4 THE TRUE COPY OF APPROVED PLAN SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT FOR BUILDING PERMIT.** - **EXHIBIT P5 THE TRUE COPY OF RECEIPT NO.6642 DATED 19.2.2020 ISSUED BY THE OFFICE OF THE FIFTH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P6 THE TRUE COPY OF ORDER NO.OBT/EE/201920 DATED 7.3.2020 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7 THE TRUE COPY OF NOTICE NO.KRP21588/20 DATED 5.6.2020 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P8 THE TRUE COPY OF PHOTOGRAPHS OF THE CURRENT STATUS OF THE BRIDGE AND THE PETITIONER'S PROPERTY.**