Kerala High Court
Jose vs State Of Kerala on 23 March, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 1ST DAY OF DECEMBER 2017/10TH AGRAHAYANA, 1939
WP(C).No. 29671 of 2017 (H)
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PETITIONERS:
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1. JOSE, AGED 48 YEARS,
S/O.MATHAI, RESIDING AT
NEDUVILA PUTHEN VEEDU,
VENGOOR PO, AYOOR.
2. SMITHA, W/O.JOSE, AGED 42 YEARS,
RESIDING AT NEDUVILA PUTHEN VEEDU,
VENGOOR PO, AYOOR.
BY ADV. SRI.M.K.CHANDRA MOHANDAS
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. CHIEF TOWN PLANNER,
LOCAL SELF GOVERNMENT INSTITUTIONS,
2ND FLOOR, SWARAJ BHAVAN,
NATHANKODE, THIRUVANANTHAPURAM - 695 005.
3. ELAMAD GRAMA PANCHAYAT,
REPRESENTED BY THE SECRETARY,
ELAMAD PO, VIA AYOOR, KOLLAM - 691 533.
R1 & R2 BY GOVERNMENT PLEADER SRI.K.J.MANURAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01-12-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 29671 of 2017 (H)
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE RESOLUTION DATED 23.3.2016 OF
THE RESPONDENT PANCHAYAT.
EXHIBIT P2: A COPY OF THE JUDGMENT DATED 22.2.2017 IN
WPC NO.31123/2016.
EXHIBIT P3: A COPY OF THE REPRESENTATION DATED 3.3.2017.
EXHIBIT P4: A COPY OF THE ORDER NO.C3/5748/2017
DATED 15.6.2017
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
P.B.SURESH KUMAR, J.
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W.P.(C).No.29671 of 2017
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Dated this the 1st day of December, 2017
J U D G M E N T
Petitioners intend to establish a Metal Crusher- cum-M Sand Manufacturing Unit. Since the proposed activity of the petitioners is a hazardous one, the application submitted by the petitioners for permission to establish the unit was forwarded by the third respondent Panchayat to the second respondent, the Chief Town Planner, for layout approval as required under Rule 61 of the Kerala Panchayat Buildings Rules, 2011 (the Rules). Ext.P4 is the order passed by the second respondent granting the layout approval sought for the unit of the petitioners. As per Ext.P4 order, the layout approval was granted subject to conditions. Petitioners are aggrieved by W.P.(c).No.29671 of 2017 : 2 : Condition No.7 contained in Ext.P4, which provides that the Secretary of the Panchayat shall grant the building permit for the unit only after ensuring that the applicants have free of cost surrendered the land owned by them and situated on the side of the street giving access to the plot as part of the street so as to ensure its width as 7 metres, as required by the Rules.
2. A counter affidavit has been filed on behalf of the second respondent. The stand taken by the second respondent in the counter affidavit is that the width of the street giving access to the plot in terms of the Rules shall be 7 metres; that the existing width of the street is only 3.5m; that the proposal of the petitioners was to make use of the land owned by them to make up the deficit width; that there cannot be any separation between the property of the petitioners and the remaining part of the street and that it is on account of the said reason that the impugned condition was imposed in Ext.P4 order.
3. Heard the learned counsel for the petitioners W.P.(c).No.29671 of 2017 : 3 : as also the learned Government Pleader.
4. It is beyond dispute that in terms of sub rule (4) of Rule 61 of the Rules, the minimum clear width required for the street giving access to the plot shall be 7 metres and shall be motorable. Rule 61 (4) reads thus:
"4. The minimum clear width of access to a building as well as the width of the street giving access to the plot from the main street shall be 7 metres and shall be motorable:
Provided that, in the case of vault crematoria or burial grounds, the width shall not be less than 3 metres and shall be motorable.
Provided further that, in the case of Type C magazines as per the provisions contained in the Explosives Rules, 2008, such width shall not be less than 3.6 metres."
As far as the present case is concerned, it is beyond dispute that the width of the existing street is only 3.5m and the petitioners propose to make up the deficit by making use of the property owned by them.
5. The case of the petitioners is that they cannot be compelled to surrender the property owned by them, for, they may lose their proprietary rights over the property, in the event they decide to close down the unit at a later point W.P.(c).No.29671 of 2017 : 4 : of time. As noted above, the requirement of the Rule is that there should be a minimum clear width of 7 metres for the street giving access to the plot. The purpose of the Rule, no doubt, is to avert inconvenience to the general public on account of the functioning of the unit. In other words, the street having the requisite width is intended for the use of the general public. If the street having the requisite width is intended in terms of the Rules for the use of the general public, I do not think that the petitioners can retain proprietary rights over the same.
In the said view of the matter, according to me, the impugned condition is in order and the writ petition is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR JUDGE rsr