N.K. Muhammed v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939** **WP(C).No. 35532 of 2016 (N) ----------------------------** ## **PETITIONER(S):** **-------------** **N.K.MUHAMMED, S/O. KUNJAMMU, MANAGING TRUSTEE, MALABAR HOTEL MANAGEMENT AND CATERING PROMOTION TRUST, ALMAZ BUILDING, KOTTOOLI, KOZHIKODE.** **BY ADVS.SRI.G.SHRIKUMAR (SR.) SRI.N.SADIQUE SRI.P.M.RAFIQ** **RESPONDENT(S): --------------** **1.STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2.THE DISTRICT DISASTER MANAGEMENT AUTHORITY, WAYANAD, REPRESENTED BY ITS EX-OFFICIO CHAIRPERSON, THE DISTRICT COLLECTOR, WAYANAD - 673 576.** **3.THE VYTHIRI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VYTHIRI, WAYANAD DISTRICT-673576, KOZHIKODE-673006.** **R1-R2 BY SPL. GOVERNMENT PLEADER M.L. SAJEEVAN R3 BY ADVS. SRI.V.A.MUHAMMED SRI.V.K.GOPALAKRISHNAN R BY V.A.MOHAMMED (BY ORDER)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2017, ALONG WITH WPC. 1818/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** |**WP(C).No. 35532 of 2016 (N)**|**WP(C).No. 35532 of 2016 (N)**| |---|---| |**----------------------------**|| ||**APPENDIX**| |**PETITIONER(S)' EXHIBITS**|| |**-----------------------**|| |**P1**|**TRUE COPY OF THE BUILDING PERMIT DATED**| ||**25/11/2014 ISSUED TO THE PETITIONER BY THE 3RD**| ||**RESPONDENT**| |**P2**|**TRUE COPY OF THE ORDER NO.2014/21178/12/H3**| ||**DATED 30/06/2015 OF THE CHAIRMAN, DISTRICT**| ||**DISASTER MANAGEMENT AUTHORITY AND DISTRICT**| ||**MAGISTRATE, WAYANAD.**| |**P3**|**TRUE COPY OF THE COMMON ORDER IN W.P(C)**| ||**24873/2015 AND W.P(C)29516/2015 DATED**| ||**03/11/2015**| |**P4**|**TRUE COPY OF THE STOP MEMO DATED 7.11.2015**| ||**ISSUED TO PETITIONER BY THE SECRETARY, VYTHIRI**| ||**GRAMA PANCHAYATH**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| |**R2(A)**|**A TRUE COPY OF THE GOVERNMENT ORDER NO.GO(RT)**| ||**3104/2016/DMD DATED 30.07.2016 IN COUNTER**| ||**AFFIDAVIT DATED 12.1.2017**| |**R2(B)**|**A TRUE COPY OF THE RELEVANT PAGES OF THE STATE**| ||**DISASTER MANAGEMENT PLAN IN COUNTER AFFIDAVIT**| ||**DATED 12.1.2017**| |**R2(A)**|**A TRUE PHOTOCOPY OF THE REPORT OF THE INCIDENT**| ||**PUBLISHED IN “MALAYALA MANORAMA” DAILY DATED**| ||**13.07.2016 IN ADDL.COUNTER AFFIDAVIT DATED**| ||**21.2.2017**| |**R2(B)**|**TRUE PHOTOCOPY OF THE LAND SLIDE**| ||**SUSCEPTIBILITY MAP OF WAYANAD DISTRICT IN**| ||**ADDL.COUNTER AFFIDAVIT DATED 21.2.2017**| |**R2(C)**|**TRUE PHOTOCOPY OF THE EARTHQUAKE**| ||**SUSCEPTIBILITY MAP OF WAYANAD DISTRICT IN**| ||**ADDL.COUNTER AFFIDAVIT DATED 21.2.2017**| |**R3(A)**|**NIL**| |**R3(B)**|**TRUE COPY OF THE PHOTOGRAPHS**| ||**TRUE COPY**| **P.S. TO JUDGE** **EL** DEVAN RAMACHANDRAN, J =================== W.P.(C). No.35532 of 2016 & W.P.(C). No.1818 of 2017 ======================= Dated this the 11[th] day of April, 2017 ## JUDGMENT These two writ petitions have been filed by the same petitioners who claim to have started a construction of a multi storied building at Wayanad on the strength of a valid building permit issued by the Local Self Government Institute. The said building permit has been produced by the petitioner and has been appended to the writ petition as Ext.P1. As is luculent from Ext.P1, it has been issued on 25.11.2014. 2. While the petitioner was so carrying on his construction, it is alleged that Ext.P3 order was issued by the District Collector acting under the provisions of the Disaster Management Act. Under the mandate of Ext.P3, certain types of construction are strictly prohibited and stipulations as to height and nature of constructions to be carried out in that area was specifically and enumerated. W.P.(C). No.35532 of 2016 & 2 W.P.(C). No.1818 of 2017 3. It appears that on Ext.P3 being issued, the petitioners' construction was directed to be stopped by the Local Self Government Authority and they were asked to comply with the stipulations contained in Ext.P3. The petitioners say that this would entail not merely stoppage of construction but even demolition of the completed construction, since, according to him, he had constructed a multi storied building based on a valid permit namely Ext.P1. The petitioners, therefore, has filed this writ petition claiming several reliefs including that Ext.P3 order of the District Magistrate be quashed. 4. I have heard the learned Senior Counsel, Mr. G. Sreekumar Assisted by Mr.Rafiq appearing for the petitioners in both the writ petitions and learned Special Government Pleader appearing for respondent. 5. Even though there are several rival allegations and averments contained in the pleadings filed on behalf of the parties, I do not propose to go into it in detail since I notice that these issues have already been considered by another W.P.(C). No.35532 of 2016 & 3 W.P.(C). No.1818 of 2017 learned judge of this Court in extreme detail while delivering Ext.P5 judgment. In Ext.P5, the learned single Judge has considered the impact of Ext.P3 order on constructions that were earlier authorised to commence and continue as per valid building permits issued prior. The learned single Judge has declared ineluctably that Ext.P3 cannot affect the right of person, who was already obtained a permit to construct a building prior to 30.06.2013. The learned Judge thereafter permitted the petitioners therein to undertake the construction, according to the building permit already issued. It is interesting that the learned Judge has approved Ext.P3 order and has granted it an imprimatur, however, treating it only to act prospectively and to regulate constructions that would commence or be authorised by the concerned Local Self Government Authority after 30.06.2015. 6. The learned Special Government asserts vehemently that Ext.P3 has been issued in public interest and to avert possible disaster. He says that the greater interest of the W.P.(C). No.35532 of 2016 & 4 W.P.(C). No.1818 of 2017 citizenry must given priority over an commercial interest of the individual builder. He, therefore, asserts, relying on the judgment of the Hon'ble Supreme Court in Hira Tikkoo v. Union Territory, Chandigarh and Others [(2004) 6 SCC 765], that even if the petitioners have obtained Ext.P1 building permit prior to the date of Ext.P3 they cannot be allowed to construct on the basis of the building permit if the construction is not in conformity with the directions contained in Ext.P3 order. I am afraid that I cannot offer sustenance for these submissions since I notice that the learned Judge in Ext.P5 has considered this respectfully and found Ext.P3 to obtain no competence to interfere in any manner with the rights vested on individuals by valid authorisation and building rules permit issued prior to it. 7. I am in respectful confirmation with the observations, conclusions and holding by the learned single Judge in Ext.P5 judgment and I find myself incomplete approval of the same and, therefore, without any reason to W.P.(C). No.35532 of 2016 & 5 W.P.(C). No.1818 of 2017 deviate from the directions contained therein. I cannot possibly have any dispute against the assertions of law urged by the learned Special Government Pleader or hold against the ratio of binding precedent in Hira Tikkoo (supra). The judgment of the Hon'ble Supreme Court in Hira Tikkoo (supra), of course, declares that the greater good of the public should prevail over the interests of individuals as a general rule but does not deal respectfully with a situation as presented in the case. The facts have are in variance with what was noticed by the Hon'ble Court in Hira Tikkoo (supra) and its ratio, while applying as a rule of generally binding application, cannot be interpreted to mean that executive orders should retrospectively to even take away vested rights. In such circumstances, I close this writ petition granting liberty to the petitioner to complete the construction strictly in terms of Ext.P1 building permit without being in any manner hampered by the directions contained in Ext.P3 order of the District Magistrate. I make it clear that these directions are W.P.(C). No.35532 of 2016 & 6 W.P.(C). No.1818 of 2017 issued only in the facts presented in the case and on account of Ext.P5 judgment I have noticed. My directions, therefore, may not be treated as a precedent in future cases except where constructions have begun prior to the date of Ext.P3 order of the District Magistrate. This writ petition is thus ordered. SKV