Kerala High Court
Shabu Sreedharan vs The Secretary on 26 October, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941
WP(C).No.40553 OF 2017(T)
PETITIONER:
SHABU SREEDHARAN
S/O LATE N.SREEDHARAN, AGED 50 YEARS,SREESHYLAM,
ELAMAKKARA,KOCHI 682 026
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENTS:
1 THE SECRETARY
CORPORATION OF COCHIN,ERNAKULAM, COCHIN
2 THE DISTRICT COLLECTOR
ERNAKULAM,CIVIL STATION,KAKKANAD,
ERNAKULAM DISTRICT 682 030
3 THE DIRECTOR GENERAL OF POLICE (PRISONS),
POOJAPPURA, THIRUVANANTHAPURAM 695 012
4 THE SUPERINTENDENT
SUB JAIL, ERNAKULAM 682 031
5 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY(HOME) DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001
R1 BY SRI.RAJU SEBASTIAN VADAKKEKARA,SC,COCHI
R1-2 BY GOVERNMENT PLEADER
R1 BY ADV. SRI.RAJU SEBASTIAN VADAKKEKARASCCOCHI
SMT.K.AMMINIKUTTY, SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.40553 OF 2017 2
JUDGMENT
The petitioner has approached this Court impugning Ext.P4 Stop Memo issued by the Tahsildar, Kanayannur Taluk, interdicting him from constructing a building in a property adjacent to the Sub Jail, Ernakulam.
2. According to the petitioner, the Tahsildar, Kanayannur, has no jurisdiction to issue the said Memo, particularly because a building permit had already been issued to him, as is evident from Ext.P3, by the Kochi Municipal Corporation. The petitioner, therefore, prays that Ext.P4 be set aside and that he be allowed to make construction on the strength of Ext.P3 building permit.
3. The learned Senior Government Pleader- Smt.K.Amminikutty - appearing on behalf of the official respondents, submits that an affidavit has been placed on record by the District Collector, Ernakulam making the following averments:-
"2.Sri.C.M.Bidar, 62/350, Parinamam Road, Kaloor, Cochin who was the WP(C).No.40553 OF 2017 3 predecessor from whom the petitioner has purchased the property had submitted an application dated 7/8/2007, with a revised plan incorporating 5 meters set back from the compound wall of the Sub Jail, before the District Collector, Ernakulam for granting N.O.C for the construction of a building in the land comprised in Survey No.323/14 of Ernakulam Village which is lying adjacent to the compound of the Sub Jail, Ernakulam.
3.In order to take a decision on the application, the District Collector requested the Commissioner of Police, Kochi City to offer his remarks on the application of Sri.C.M.Bidar.
4.In reply the Commissioner of Police, Kochi City reported that permission for the construction of building could be given on four conditions such as,
a) Opening of windows, doors or other entrances should not be allowed towards the view of the Sub Jail.
b) There should not be sight from the top of the building towards the Sub Jail
c) Vision from the proposed building towards the Sub Jail and inside the Sub Jail should not be allowed.
d) Sanction can be given as per the directions given in Circular No. 14356/B2/03/Home dated 29/03/2004 of Home (B) Department, Government of Kerala.
5.The District Collector, Ernakulam inspected the site personally and also sought the remarks from the Director General of Police (Prison), Thiruvananthapuram. On receipt of the request, the Director of General of Police (Prison) informed the respondent herein to take appropriate decision in this regard in the light of the circular issued by the Government No. 14356/B2/03/Home dated 29.03.2004 of Home (B) Department, Government of Kerala.
6. Consequently the District Collector, Ernakulam granted permission to construct the building in the said property subject to the conditions as suggested by the Commissioner of Police, Kochi city vide WP(C).No.40553 OF 2017 4 order No.M7-9549/08 dated 10.08.2009.
7.Thereafter the Superintendent of Sub Jail, Ernakulam submitted a written request to the respondent herein to stop the construction of a building in the land carried out by the petitioner as the petitioner is constructing a building deviating from the Affidavit submitted by his predecessor of the property where it affirm that the a distance of 5 meter shall be kept from the compound wall of the Sub Jail to the proposed building.
8.Thereupon the 2nd respondent directed the Tahasildar, Kanayanoor to issue a stop memo restraining construction in the property adjacent to the Sub Jail, Ernakulam as the construction is reported to be a threat to the functioning of the Sub Jail.
9.Thereafter the respondent herein decided to hear the petitioner, the jail authorities and the Municipal Corporation. Notice were served on all concerned parties and hearing was fixed on 19.01.2018. Meanwhile petitioner approached this Hon'ble Court, and obtained a stay order against the implementation of the order of the District Collector. In compliance respondent herein deferred the hearing.
10.It is submitted that the plan submitted by the predecessor and the vendor of the property is related to the construction of a commercial complex. Whereas the petitioner after purchasing the property obtained a new building permit from the 1st respondent to construct a residential building in the aforesaid property.
11.It is submitted that the District Collector, Ernakulam granted permission to construct a commercial building in the said property for Sri.C.M.Bidar, Parinamam Road, Kaloor, Cochin who was the predecessor of the property. Vide Exhibit P2 order, Sri.C.M.Bidar was permitted to construct a commercial building in the said land in accordance with the revised plan submitted before the 1st respondent. Though the District Collector granted permission to construct the commercial building in accordance WP(C).No.40553 OF 2017 5 with the revised plan, the predecessor and vendor of the land did not construct the commercial building but transferred the land to the petitioner. The petitioner then submitted a new plan for a residential building to the 1st respondent and the 1st respondent issued a building permit to the petitioner without obtaining fresh permission from the 2nd respondent as stipulated by the Government by a circular No.14356/ B2/03/Home dated 29.03.2004 of Home (B) Department, Kerala."
4. The learned Senior Government Pleader submits that, as is evident from the afore averments, the District Collector had earlier granted permission to put up a construction to the predecessor-in-interest of the petitioner, which is clear from Ext.P2, but that it was done on the basis of the undertaking that he will leave necessary set- back from the Sub Jail. She says that since the building permit now obtained by the petitioner appears to offend this undertaking, the District Collector will hear all sides and then take a final decision on the action pursuant to the Stop Memo, namely Ext.P4. She adds that Ext.P4 is not a final order, but only a provisional order, subject to a final decision to be taken by the District Collector WP(C).No.40553 OF 2017 6 in terms of law.
5. I find substantial force in the submissions made by the learned Senior Government Pleader, because the allegations against the petitioner is virtually that his construction will cause security threat to the Sub Jail. This is a matter of public concern, since, if, as stated in Ext.P8, the construction proposed by the petitioner would cause any such threat, then it is a matter of grave nature and cannot be taken lightly.
6. I do not, however, propose to speak affirmatively on these issues because, I am of the view that this is a matter that will have to be finally decided by the District Collector, taking note of the petitioner's objections as also the applicable Building Rules that govern the field. Of course, the District Collector will have to give primacy to the requirement of safety with respect to the Sub Jail, Ernakulam and then take a final decision after following due procedure. WP(C).No.40553 OF 2017 7
7. I am of the considered view, that even though it may not be necessary for me to quash Ext.P4 Stop Memo, as has been prayed for by the petitioner, it will be sufficient, to protect his interests also, that the District Collector take a final decision as to whether the interdiction ordered through Exhibit P4- Stop Memo, should continue, after affording an opportunity of being heard to him, the Jail Authorities and the Secretary of the Corporation, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.
8. Needless to say, the resultant order shall be communicated appropriately to the petitioner by the Office of the District Collector; and he will be, subject to the said decision, entitled to make construction on the strength of Ext.P3 building permit.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN
MC/28.10.19 JUDGE
WP(C).No.40553 OF 2017 8
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF TAX PAID RECEIPT DATED 23-05-
2016
EXHIBIT P2 TRUE COPY OF NO OBJECTION CERTIFICATE DATED
10-08-2009 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF BUILDING PERMIT NO.694/16 DATED 09-08-2016 ISSUED BY 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE PROHIBITORY ORDER DATED 08-12-2017 ISSUED BY THE 2ND RESPONDENT RESPONDENT'S/S EXHIBITS:
NIL MC (TRUE COPY) PA TO JUDGE