Kerala High Court
Radhika Keezharapurayil vs The Kannur Muncipal Corporation on 5 October, 2021
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.5288/2021
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
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
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
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
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
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.
