Saji.A S vs The Varapuzha Grama Panchayat
2023 Latest Caselaw 3129 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
         THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                          WP(C) NO. 9324 OF 2023
PETITIONER:

              SAJI.A S,
              AGED 48 YEARS
              ANTHIKAD HOUSE, CHIRAKAKOM, VARAPUZHA, ERNAKULAM
              DISTRICT,, PIN - 683517

              BY ADVS.
              V.PREMCHAND
              SURYA MOHAN P.
              FATHIMA SHALU S.



RESPONDENTS:

     1        THE VARAPUZHA GRAMA PANCHAYAT,
              REPRESENTED BY ITS SECRETARY, VARAPUZHAGRAMAPANCHAYAT,
              ERNAKULAM DISTRICT,, PIN - 683517

     2        THE SECRETARY,
              VARAPUZHAGRAMAPANCHAYAT, ERNAKULAM DISTRICT., PIN -
              683517

     3        NATIONAL HIGHWAYS AUTHORITY OF INDIA,
              REPRESENTED BY ITS PROJECT DIRECTOR, MAVELIPURAM ROAD,
              KAKKANAD, ERNAKULAM DISTRICT, PIN- 682 030., PIN - 682030

              SC- B.G BIDAN CHANDRAN
              SRI.NIRMAL .S -SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 9324 OF 2023                   2




                                    JUDGMENT

Dated this the 23rd day of March, 2023

This writ petition is filed seeking the following reliefs:-

i. Call for records leading to Exhibit P 2 and quash the same by a writ of certiorari or any other appropriate writ, direction or order to the extent it demands the petitioner to produce NOC from NHAI for consideration and grant of Building permit.

ii) Declare Exhibit P2 to the extent it demands the petitioner to produce NOC from NHAI for consideration and grant of Building permit as illegal, unjust and violative of Article 14 and 19(1) (g) of the Constitution of India.

iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 2nd respondent to consider and grant building permit to the petitioner without insisting for NOC from NHAI.

2. Heard the learned counsel for the petitioner, the learned

Standing Counsel appearing for the respondents 1 and 2 and the

learned Counsel appearing for the 3rd respondent.

3. It is submitted by the learned counsel for the petitioner that

the petitioner is the absolute owner of 26.020 cents of property in

Survey No.312/4 of Varapuzha Village in Paravur Taluk. It is

submitted that the petitioner submitted an application before the

Secretary of the Panchayat for construction of a commercial cum

residential building in the property remaining after acquisition for

road widening by the National Highways Authority of India. The

petitioner has been issued with Ext.P2 notice requiring him to

produce an NOC from the NHAI for the purpose of consideration of

the application. Certain other defects have also been pointed out in

Ext.P2. The learned counsel for the petitioner submits that he is

ready and willing to cure all the defects pointed out in Ext.P2.

However, it is submitted that there is no requirement for prior NOC

from the NHAI for the construction of either residential or commercial

buildings abutting the National Highway and all that is required is

access permit after the construction is complete. The learned counsel

also places reliance on Ext.P3 judgment of this Court where a similar

issue was considered and the application for building permit was

directed to be reconsidered without insisting on production of prior

NOC or prior access permit for consideration of the application for

building permit.

4. The learned Standing Counsel appearing for respondents 1

and 2 submits that the 3rd respondent had directed all Grama

Panchayats to ascertain that NOC had been obtained from the NHAI

for constructions abutting the National Highway which is the reason

why Ext.P2 communication had been issued stating the said

requirement as well.

5. The learned counsel for the 3rd respondent submits that in

case, where properties stands acquired for the purpose of widening

of the National Highways, the persons who construct new buildings

abutting the Highway are duty bound to leave the necessary set

back from the National Highway. It is only to ensure that such set

back is made available in the building permits that the National

Highway Authority of India had required the Grama Panchayats

where acquisition had been recently done to get NOC from the NHAI

before issuance of building permits. It is submitted that the relevant

provisions of law only provide for access permit from the NHAI and

for maintaining the necessary set back. However, if necessary set

back is not provided when buildings are put up, it will lead to further

difficulties in future.

6. Having considered the contentions advanced on all sides and

in the light of Ext.P3 judgment of this Court, I am of the opinion that

the 2nd respondent cannot insist on a prior NOC from the NHAI for

the consideration of an application for building permit. It is true that

2nd respondent can consider the distance to be maintained from the

National Highway while considering the application submitted by the

petitioner for building permit. The petitioner would also have to

obtain an access permit from the NHAI after completion of the

construction. However, since there is no provision for obtaining a

prior NOC from the National Highway before an application for

building permit can be considered, the application is to be

considered by the respondents.

In the above view of the matter, Ext.P2 in so far as requires no

objection certificate from the NHAI for consideration of the

application for building permit shall stand set aside. The 2 nd

respondent shall consider the application submitted by the petitioner

for building permit strictly in accordance with the Panchayat Building

Rules as well as the MORTH guide lines and shall pass appropriate

orders on the application for building permit within a period of one

month from the date of receipt of a copy of this judgment. It is

made clear that the petitioner shall rectify all other defects pointed

out in Ext.P2.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE ska

APPENDIX OF WP(C) 9324/2023

PETITIONER EXHIBITS

Exhibit-P1 A TRUE COPY OF THE JUDGMENT IN W.P.

(C).NO.23910/2019 BEFORE THE HON'BLE HIGH COURT OF KERALA, AT ERNAKULAM DATED 19-11-2019

Exhibit-P2 A TRUE COPY OF THE COMMUNICATION DATED 23.11.2022 ISSUED BY THE 2ND RESPONDENT

Exhibit-P3 A TRUE COPY OF THE JUDGMENT IN W.P.

(C).NO.26255/2020 BEFORE THE HON'BLE HIGH COURT OF KERALA, AT ERNAKULAM DATED 4-8-2022