Sanjiv @ Shaji & Sheeja v. Kodungallur Municipality and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** ## **WP(C).No.17146 OF 2020(P)** ## **PETITIONERS:** **1 SANJIV @ SHAJI AGED 57 YEARS KOVILPARAMBIL HOUSE, LOKAMALESWARAM, KODUNGALLUR.** - **2 SHEEJA, W/O.SANJIV @ SHAJI, KOVILPARAMBIL HOUSE, LOKAMALESWARAM, KODUNGALLUR.** **BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH** ## **RESPONDENTS:** **1 THE KODUNGALLUR MUNICIPALITY KODUNGALLUR P.O., PIN-680664,** - **2 THE SECRETARY, KODUNGALLUR MUNICIPALITY, KODUNGALLUR P.O., PIN-680664.** - **3 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, NATIONAL HIGHWAY, THIRUVANANTHAPURAM, PIN-695001.** - **4 THE ASSISTANT EXECUTIVE ENGINEER, PWD, NH DIVISION, CIVIL STATION, KODUNGALLUR, PIN-680664.** - **5 THE NATIONAL HIGHWAY AUTHORITY OF INDIA, NEW DELHI, REPRESENTED BY THE PROJECT DIRECTOR, REGIONAL OFFICE OF THE NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, MAVELIPURAM, KAKKANAD, ERNAKULAM, PIN-682030.** **SRI.K.A. NOUSHAD,SC , SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER, SRI.MATHEWS.K.PHILIP,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No. 17146 of 2020 **2** ## ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 17146 of 2020 - ------------------------------------ Dated this the 26[th] day of August, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (C) are as follows: - _“(i) A Writ of Mandamus or any other writ,order or direction directing the 2[nd] respondent to consider the application for building permit of the petitioners without insisting on No objection certificate from the 4[th] respondent in the interest of justice._ _In the alternative_ - _(ii) A Writ of Mandamus or any other writ, order or directing the 4[th] respondent to issue NOC as requested in Exhibit P 2 for considering the application for Building Permit submitted by the petitioners in the interest of justice._ - _(iii) Any other reliefs that this Hon’ble Court may deem fit.”_ 2. Heard Sri.M.Shaju Purushothaman, learned counsel appearing for the petitioners, Sri.K.A.Noushad, learned counsel appearing for R1 & R2 (Kodungalloor Grama Panchayat), Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R3 & R4 and Sri.Mathews.K.Philip, learned Standing Counsel appearing for the National Highway Authority of India appearing for R5. 3. The factual aspects disclosed in the above Writ Petition (C) is as follows: W.P(C) No. 17146 of 2020 **3** _That the petitioners are the absolute owners and in possession of 33.46 cents. The petitioners applied for Building Permit to construct a residence in the property of which the western boundary is NH 66. The distance between the proposed residence and the boundary line of the National Highway is 50 meters. The secretary of the Municipality forwarded the building plan for NOC from the NH Division of PWD as per Exhibit P2. The minimum distance for construction of residence in properties along the National Highway is fixed as 5 meters as per the Circular No.NH1D1-6141/04 dated 24.7.2006 issued by The Chief Engineer, PWD,NH. The Kerala Municipality Building Rules are alone applicable in the case of construction of the building though the building is along the NH since Building Line and Control Line has not been determined and published as prescribed under section 18(3) of The Kerala Highway Protection Act, 1999. NOC from the NH Authorities is not required for lack of publication of Building Line and Control Line. M.Peer Mohammed vs Chirakandam Grama Panchayat (_ _**2008 (3) KLT 300** ) held that Notification or paper publication under section 18(2) is mandatory for fixation of Building line and Control line. Applying the law laid down in Peer Mohammed, it was held in Exhibit P 5 and P 6 judgment that NOC from NH Authority is not necessary._ 4. In this regard, it is relevant to note that this court in the judgment in _**M.Peer Mohammed v. Chirakandam Grama Panchayat (2008 (3) KLT 300)**_ has held that the fixation of the building line and control line are to be done by the competent authority in terms of Sec.18 of the Kerala Highway Protection Act, 1999 and that Sec.18 (2) provides that the building line and control **4** W.P(C) No. 17146 of 2020 line determined by the competent authority shall be published in the official Gazatte and in two daily news papers. Further that Sec.18 of the Act would require that (1) the competent authority shall determine the building line and control line (2) such determination shall be with due regard to the requirements of safety, convenience of traffic and future development of the Highway and (3) the building line and control line so determined shall be published in official Gazatte and in two daily news papers. This Court therein had repelled the submission of the respondent State and held that both the requirements of publication in the official Gazatte as well as publication in two dailies are mandatory and that the statutory exercise of power under Sec.18 of the Kerala Protection of Highway Act, 1999 is a conditional one and unlike a parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chamber of a Secretary to Government or other officials in the State and therefore it is highly necessary that such subordinate legislation, in order to take effect must be published or promulgated strictly in the manner as provided in the statute and that it can take effect only from the date of such publication. Further that if a statute requires something to be done in a particular **5** W.P(C) No. 17146 of 2020 manner, then it can be done only in that manner and in no other manner and that since under Sec.18(2) provides the manner in which the publication is to be effected not only in the Gazatte but also in two dailies and that both the said requirements has been strictly followed and such a requirement is imperative and cannot be dispensed with. The abovesaid legal position laid down by this Court in _**M.Peer Mohammed's case**_ (supra) [2008 (3) KLT 300] has been followed by this court in a series of cases as in Ext.P5 judgment dated 07-09-2018 in W.P(C)No.27817/2018, in which the respondent Municipality is none other than the present Kodungalloor Municipality. Exhibit P5 judgment dated 07-09-2018 in W.P(C) No.27817/2018 reads as follows: _“The petitioner is the owner in possession of an extent 2 cents of property, comprised in Sy.No.1061/10 of Methala Village in Kodungallur Taluk, wherein a two storied building was constructed._ _2. According to the petitioner, permit for construction of the building in the aforesaid property was secured by the predecessorin-interest of title. After the purchase of the property utilizing the permit, petitioner has carried out the construction and later submitted an application seeking regularization of the construction carried out by the petitioner, since the Kerala Panchayath Building Rules, 2011 insist for transfer of permit, if the property in which the construction was sought for is transferred. According to the petitioner, it is pending consideration. Anyhow, the petitioner sought numbering of the building which was kept in abeyance, since no NOC was secured by the petitioner from the executive engineer PWD in accordance with Section 18 of the High Way Protection Act._ _3. Therefore, according to the petitioner, the said insistence made_ W.P(C) No. 17146 of 2020 **6** _for NOC cannot be sustained under law since the said provision is not notified. It is also pointed out that said issue was considered by a learned single Judge of this Court in M.Peermohammed and others Vs.The Chirakandam Grama Panchayath [2008(3)KLT 300] and held that since Section 18(2) is not notified, the panchayath is not at liberty to insist for NOC from the executive engineer PWD. In that view of the matter, there will be a direction to the 5th respondent to consider the application submitted by the petitioner seeking numbering of the building, taking into account, the judgment rendered by this Court in the above specified judgment and attain finality at the earliest and at any rate within a month from the date of receipt of a copy of this judgment. However, I make it clear that the numbering of the building will be subject to the result of the regularization application submitted by the petitioner in respect of the building in question._ _This writ petition is disposed of accordingly._ 5. Hence in the light of the abovesaid indisputable factual position settled by this Court in decisions as _**M.Peer Mohammed's case**_ (supra), Ext.P5 judgment etc, it is only to be held that since building line and control line has not been prescribed in compliance of the requirements of Sec.18 (2) of the Kerala Protection of Highway Act, 1999, the respondent Municipality cannot insist that the petitioner should necessarily produce NOC from the competent authority of the National Highway Division etc. 6. The petitioner would thus urge that even till date such prescription of building line and control line satisfying the requirements in Sec.18 (2) of the Kerala Highway Protection Act, 1999 has not been done and therefore there is no question of the **7** W.P(C) No. 17146 of 2020 petitioner being compelled to seek any NOC from the Highway authorities in as much as the building line and control line have not been statutorily brought into force in compliance of the requirements in Sec.18 (2) of the Kerala Protection of Highways Act, 1999 till date etc. 7. Taking note of the facts and circumstances of the case it is ordered in the interest of justice that the 2[nd] respondent Secretary of the Kodungalloor Municipality will take up for consideration the application for building permit submitted by the petitioner along with Ext.P1 building plan (referred to in Ext.P2 communication) and after affording reasonable opportunity of being heard to the petitioner should take a decision on the said application of building permit strictly in accordance with the provisions contained in the applicable statutory building rules and without insisting the abovesaid NOC, orders should be passed on the application for building permit, without any further delay, at any rate, within three weeks from the date of production of a certified copy of this judgment. 8. The petitioner will produce a certified copy of this judgment along with a copy of the memorandum of W.P(C) with all the Exhibits **8** W.P(C) No. 17146 of 2020 before the 2[nd] respondent Municipal Secretary for necessary information and further action. With these observations and directions, the Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS W.P(C) No. 17146 of 2020 **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE BUILDING PLAN SUBMITTED BEFORE THE 4TH RESPONDENT DATED 13.08.2019.** **EXHIBIT P2** **THE TRUE COPY OF THE COMMUNICATION NO.B.A.568/18-19 FORWARDED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 13.08.2019.** **EXHIBIT P3 THE PHOTOGRAPH SHOWING THE DISTANCE OF THE PROPERTY FROM THE NATIONAL HIGHWAY DATED NIL.** **EXHIBIT P4** **THE TRUE COPY OF THE RTI REPLY DATED 13.07.2018.** **EXHIBIT P5** **THE TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.27817/2018 DATED 07.09.2018.** **EXHIBIT P6 THE TRUE COPY OF THE DECISION REPORTED IN 2008 (3) KLT 300 DATED 03.07.2008.** **RESPONDENT'S/S EXHIBITS: NIL**