Kerala High Court
Radhika Keezharapurayil vs The Kannur Muncipal Corporation on 5 October, 2021
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 5TH DAY OF OCTOBER 2021/13TH ASWINA, 1943
WP(C) NO. 5288 OF 2021
PETITIONER:
RADHIKA KEEZHARAPURAYIL,
W/O.SHAJU, AGED 51 YEARS,
PAZHAYAPURAYIL HOUSE,
THAVAKKARA WARD, KANNUR-670 001.
BY ADVS.
ABDUL RAOOF PALLIPATH
SRI.K.R.AVINASH (KUNNATH)
RESPONDENTS:
1 THE KANNUR MUNCIPAL CORPORATION,
SPCA ROAD, TALAP, KANNUR-670 001,
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,
KANNUR MUNICIPAL CORPORATION,
SPCA ROAD, TALAP, KANNUR-670 001.
3 THE STATION COMMANDANT,
DSC CENTRE, BURNASSERY,
KANNUR-670 013.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SMT.M.MEENA JOHN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C)No.5288/2021
2
JUDGMENT
Dated this the 5th day of October, 2021 The petitioner who is owner of 2.18 Ares of property in Kannur has approached this Court aggrieved by the refusal of the 1st respondent-Municipal Corporation to issue Building Permit.
2. The petitioner submitted an application for Building Permit. As the Station Commandant, DSC Centre, Burnassery own certain property nearby, the 1st respondent has not issued Building Permit on the ground that the NOC from the Defence Authorities is required if the construction proposed is within 100 meters from the defence land. The petitioner urged that the action of the 3 rd respondent is illegal and arbitrary. The defence land in question is a small strip of land wherein a multi-storied building is situated. No defence activity is carried out there.
WP(C)No.5288/20213
3. It is the contention of the petitioner that as per rules now existing, such NOC is required from Defence Authorities only if the proposed construction is beyond 10 meters. The petitioner's property is within 40 meters, hence no NOC is required.
4. The learned counsel for the petitioner further pointed out that the Kerala Municipality Building Rules have been amended and as per Rule 5(4) of Chapter 2 of the KMBR, 2019, the prohibited area is limited to 10 meters from the defence land. For this reason also, the stand taken by the 1st respondent Corporation is unsustainable.
5. The Assistant Solicitor General representing the 3rd respondent filed a statement. As per the said statement, the proposed construction of the petitioner being in a land which falls within 100 meters of the boundary of defence land, the construction cannot be permitted as it would be a threat to the security of the defence establishment. The learned ASGI stated that as per Circular/Order dated WP(C)No.5288/2021 4 18.05.2011, the prohibited distance is 100 meters. The Defence authorities had reduced the prohibited distance in the year 2016, by issuing the Order/Cirucular dated 21.10.2016. The prohibited distance of 10 meters was later found not sufficient for averting security threat. The Ministry of Defence NOC guidelines issued on 21.10.2016, are under review. Till a decision is taken in this regard, the 3 rd respondent is disabled from granting NOC as required by the petitioner.
6. Heard the learned counsel for the petitioner, the learned Standing Counsel Smt.Meena John for respondents 1 and 2 and the Assistant Solicitor General of India representing the 3rd respondent.
7. It is not in dispute that the prohibited distance was 100 meters as per order issued by the Government of India on 18.05.2011. Subsequently the Ministry of Defence, Government of India reduced the said requirements for NOC, to 10 meters from the defence land in 193 stations. WP(C)No.5288/2021 5 The present argument of the 3rd respondent is that since a review is pending in respect of the Order/Circular dated 21.10.2016 before the Defence Authority, no NOC can be issued. This Court is unable to accept the said argument. As long as the order dated 21.10.2016 is not withdrawn or cancelled, the 3rd respondent will have to act on that Circular/Order. In that view of the matter, the stand taken by the 3rd respondent cannot be sustained.
In the circumstances, the writ petition is disposed of directing the 3rd respondent to issue NOC to the petitioner for the construction of the building by the petitioner if the construction satisfies distance criteria laid down in the Order dated 21.10.2016 and NOC in this regard shall be issued within a period of one month.
Sd/-
N. NAGARESH JUDGE ncd/05.10.2021 WP(C)No.5288/2021 6 APPENDIX OF WP(C) 5288/2021 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.2366/2019 OF SRO, KANNUR DATED 20.09.2019.
EXHIBIT P2 TRUE COPY OF THE LAND REVENUE PAYMENT RECEIPT DATED 05.02.2021.
EXHIBIT P3 TRUE COPY OF THE SITE PLAN
SUBMITTED BEFORE THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED BY
THE 3RD RESPONDENT DATED
19.10.2020.
RESPONDENTS' EXHIBITS
ANNEXURE R3(a) TRUE COPY OF REVISED POLICY ISSUED
BY MINISTRY OF DEFENCE LETTER
NO.11026/2/ 2011/D(LANDS) DATED 18
MAY,2011.
ANNEXURE R3(b) TRUE COPY OF HQ SOUTHERN COMMAND
LETTER NO.100104/PN-319/NOC/Q/L
DATED 05 FEB, 2019.
ANNEXURE R3(c) TRUE COPY OF NO OBJECTION
CERTIFICATE (NOC) TO STATION CELL KANNUR LETTER NO.E3/BA/274/19-20 DATED 16 JANUARY 2020 ANNEXURE R3(d) TRUE COPY OF ORDER NO.3001/NOC/CAN/Q1 DATED 23 DECEMBER, 2019 ISSUED BY STATION COMMANDER, STATION CELL, C/O DSC CENTRE ANNEXURE R3(e) TRUE COPY OF STION CELL KANNUR LETTER NO.3001/1/Q1(PC) DATED 13 FEBRUARY, 2020.
ANNEXURE R3(f) TRUE COPY OF LETTER NO.16900/NOC/CAN/ Q2L.DATED 25 SEPTEMBER, 2020.
ANNEXURE R3(g) TRUE COPY OF LETTER WP(C)No.5288/2021 7 NO.3001/1/Q1(PC) DATED 16.10.2020.
ANNEXURE R3(h) TRUE COPY OF COMMENTS OF ARMY, TO
THE QUERY RAISED BY SRI.GOPAL
SHETTY, LETTER NO.B/35273/VIP
REF/44/LAND(POLICY &PLG) DATED 25 JUNE, 2021.
ANNEXURE R3(i) TRUE COPY OF MINISTRY OF DEFENCE LETTER NO.137/SO(II)/D(LANDS)2019 DT.20.02.2020.