Martin Johny vs State Of Kerala
2022 Latest Caselaw 1704 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
    WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943
                       WP(C) NO. 28290 OF 2021
PETITIONER:

          MARTIN JOHNY
          AGED 47 YEARS
          S/O.E.M.JOHNY,
          EDAKKATTUKUDIYIL HOUSE,
          RAMAMANGALAM,
          KOTHAMANGALAM P.O., ERNAKULAM - 686 691.

          BY ADVS.
          SRI.PEEYUS A.KOTTAM
          SRI.HRITHWIK D. NAMBOOTHIRI


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY,
          LOCAL SELF GOVERNMENT DEPARRMENT,
          SECRETARIAT, THIRUVANANTHAPURAM - 695 033.

    2     KOTHAMANGALAM MUNICIPALITY
          KOTHAMANGALAM P.O., PIN - 686 691,
          REPRESENTED BY ITS SECRETARY.

    3     KOTHAMANGALAM MUNICIPAL COUNCIL
          REPRESENTED BY THE CHAIRMAN,
          KOTHAMANGALAM MUNICIPALITY PIN 686 691

    4     THE ASSISTANT EXECUTIVE ENGINEER
          NH SUB DIVISION, KOTHAMANGALAM, PIN - 686 691.

          BY ADVS.
          SRI.JOICE GEORGE, SC,
          KOTHAMANGALAM MUNICIPALITY

          SRI. B.S. SYAMANTHAK, GP.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 28290 OF 2021
                                           2




                                T.R.RAVI, J.
                        ----------------------------------------
                         WP(C) NO.28290 OF 2021
                       -------------------------------------------
                Dated this the 16th day of February, 2022

                               JUDGMENT

The prayer in this writ petition is to call for the records

leading to Ext.P4 to the extent it insists that the petitioner

should get NOC from 4th respondent for issuing occupancy

certificate, since the building lines and control line is not yet

fixed. In Ext.P4, 2nd and 3rd respondents noticed that since the

Northern side boundary is NH 85, NOC/ access permit from the

NH Authority is required. The petitioner has produced Ext.P10

which is the list of State Highways and it is seen that the Aluva-

Munnar Highway is a State Highway. The Highway is on the

southern side of the property and there is no National Highway

at present. In order to ascertain this fact, the Court had also

sought the presence of the Standing Counsel appearing for the

National Highway Authority of India. He has also confirmed that

the road is a State Highway at present and there is only a

proposal for expanding it as a National Highway. The

Government Pleader also points out a letter dated 27.12.2021 WP(C) NO. 28290 OF 2021

whereby the Assistant Executive Engineer had addressed the

office of the Advocate General stating that the road has been

entrusted to the National Highway Authority of India and that

the access permission for construction is issued directly by the

Project Director of National Highway Authority of India.

2. When the case is taken up today, the counsel for the

petitioner submitted that his building is bounded on two sides

that is on the Southern side and Eastern side by two roads and

he is not seeking an access permission towards the portion

where it opens to the State Highway and he is restricting his

entry at present to the Eastern road and if necessary, he will

require the necessary permission for access to the Highway

from the National Highway Authority in case it is noted to be a

National Highway or under Rule 3 of the Kerala Highway

(Control of Access and Restriction on use of land) Rules, 2000, if

it is found to be a State Highway.

3. In the light of the above undertaking, I do not think

there is any necessity to insist that the petitioner should

produce NOC from the National Highway Authority for the

purpose of issuance of occupancy certificate.

In the result, the writ petition is disposed of directing 2 nd WP(C) NO. 28290 OF 2021

and 3rd respondents to issue occupancy certificate to the

petitioner's building without insisting an NOC from the National

Highway Authority of India or from any other officer of the

National Highway Authority of India or the State Highway

Authorities. The occupancy certificate shall be issued on the

basis of the law that was prevailing at the time of grant of

building permit as has been held in Exts.P7 and P8 judgments.

Necessary orders shall be issued within one month from the

date of receipt of a copy of this judgment.

Sd/-

T.R.RAVI

JUDGE

sn WP(C) NO. 28290 OF 2021

APPENDIX OF WP(C) 28290/2021

PETITIONER'S EXHIBITS

Exhibit P1 THE TRUE COPY OF THE BUILDING PERMIT NO.PW4-

BAC 143819/2018 DATED 08/05/2018 ISSUED BY THE KOTHAMANGALAM MUNICIPALITY.

Exhibit P2 THE TRUE COPY OF THE RECEIPT ISSUED BY THE KOTHAMANGALAM MUNICIPALITY FOR SUBMITTING THE APPLICATION FOR OCCUPANCY CERTIFICATE ALONG WITH COMPLETION PLAN DATED 22/07/2020.

Exhibit P3 THE TRUE COPY OF FIRE & RESCUE SERVICES NOC DATED 29/10/2021 OBTAINED BY THE PETITIONER FOR HIS BUILDING.

Exhibit P4 THE TRUE COPY OF THE COMMUNICATION SENT BY THE SECRETARY, KOTHAMANGALAM MUNICIPALITY DATED 19/11/2021 DEMANDING NOC FROM THE 4TH RESPONDENT AND ALSO FOR PRODUCTION OF LATEST POSSESSION CERTIFICATE AND LAND TAX.

Exhibit P5 THE TRUE COPY OF THE COVERING LETTER FOR SUBMISSION OF LATEST POSSESSION CERTIFICATE AND LAND TAX RECEIPT FOR THE PETITIONER'S PROPERTY.

Exhibit P6 THE TRUE COPY OF THE RECEIPT DATED 03/12/2021 ISSUED FROM THE OFFICE OF THE SECOND RESPONDENT ACKNOWLEDGING RECEIPT OF EXT.P5.

Exhibit P7 THE TRUE COPY OF THE JUDGMENT REPORTED 2008(3) KHC 261 (PEER MOHAMED M AND OTHERS V.CHIRAKANDOM GRAMA PANCHAYAT AND OTHER).

Exhibit P8 THE TRUE COPY OF THE JUDGMENT IN 2012(3) KHC 250 (MUHAMMED SALI V. OCHIRA GRAMA PANCHAYAT.

Exhibit P9 TRUE COPY OF THE MINUTES OF THE 3RD RESPONDENT'S MEETING HELD ON 26/11/2021.

Exhibit P10 THE TRUE COPY OF THE LIST OF STATE HIGHWAY IN KERALA STATE WP(C) NO. 28290 OF 2021

Exhibit P11 TRUE COPY OF THE JUDGMENT IN WP(C).NO.5453/2020 DATED 02.03.2020

Exhibit P12 TRUE COPY OF THE JUDGMENT IN WP(C).NO.3237/2019 DATED 22.02.2019

RESPONDENT'S EXHIBITS : NIL

//TRUE COPY// PA TO JUDGE