IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 WPC.No. 38088 of 2010 (R) PETITIONER(S) 1 K. ABOOBACKER, 3/1289, ZALAL OPP. TELEPHONE BHAVAN GANDHI ROAD KOZHIKODE - 673 011. BY ADV.SRI.C.P.MOHAMMED NIAS RESPONDENT(S) 1 CORPORATION OF KOZHIKODE, REPRESENTED BY ITS SECRETARY KOZHIKODE - 673 032. 2 TOWN PLANNING OFFICER, CORPORATION OF KOZHIKODE KOZHIKODE - 673 032. 3 ADDL.R3- STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001. 4 ADDL.R4- THE HONOURABLE HIGH COURT OF KERALA ERNAKULAM KOCHI-683031 REPRESENTED BY ITS REGISTRAR GENERAL. (ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DATED 06.01.2011 IN IA.218/2011) (ADDL.RESPONDENTS 3 & 4 IMPLEADED AS PER ORDER DATED 6.1.2011 IN I.A.218/2011) 5 ADDL.R5- THE DISTRICT COLLECTOR, KOZHIKODE (ADDL.R5 IS SUO MOTU IMPLEADED VIDE ORDER DATED 17.02.2011) BY ADV. R1 & R2 BY SRI.K.D.BABU,SC,KOZHIKODE CORPORATION ADDL.R3 & R5 BY G.P.SRI. BIJU MEENATTOOR ADDL.R4 BY ADV.SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.38088/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1- TRUE COPY OF THE NOTICE NO. TP5/23845/10 DATED 8.6.2010, DATED 8.6.2010. EXT.P2-TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE DISTRICT JUDGE, KOZHIKODE, DATED 14.6.2010. EXT.P3-TRU E COPY FO THE LETTER SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT, DATED 19.6.2010. EXT.P4-TRUE COPY OF . TP5/23845/10 DATED 13.7.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P5- TRUE COPY OF THE LETTER NO. P1/9660/2010/SB DATED 30.7.2010 ISSUED BY THE ADDL.DIRECTOR GENERAL OF POLICE (INTELLIGENCE). EXT.P6- TRUE COPY OF THE ORDER NO. TP5/23845/10 DATED 30.10.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P7-TRUE COPY OF THE LETTER NO. B4-5372/2010 DATED 6.10.2010 ISSUED BY THE DISTRICT JUDGE, KOZHIKODE. EXT.P8. ORIGINAL PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER. EXT..P9- RELEVANT PAHOTOGRAPHS SHOWING THE SITE IN QUJESTION, THE COURTS AND THE OTHER HIGH RISE BUILDINGS,. RESPONDENT'S EXHIBITS : EXT.R1- TRUE COPY OF THE REPORT SUBMITTED BY THE ASSISTANT COMMISSIONER OF POLICE, KOZHIKODE DATED 8.4.2010. EXT.R2-TRUE COPY OF THE REPORT OF THE DEPUTY SUPERINTENDENT OF POLICE, SBCID, KOZHIKODE, DATED 18.12.10. EXT.R4(A)- TRUE COPY OF THE AUDIT CHECK REPORT BY THE KOZHIKODE CITY POLICE ON THE COURT COMPOUND OF KOZHIKODE CITY ON 13.11.2009. EXT.R4(B)- TRUE COPY OF THE LETTER NO. D4(A)-54177/2010 DATED 6.9.2010 OF THE 4TH RESPONDENT TO THE DISTRICT JUDGE, KOZHIKODE. TRUE COPY P.A. TO JUDGE al. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 38088 of 2010 --------------------------------------- Dated this the 21st day of December 2011. JUDGMENT Writ petition is filed seeking to quash Ext.P6 stop memo and for a direction permitting the continued construction activities in the property of the petitioner and his family in accordance with permit No. E4/3952/09 dated 19.2.2010 of the Corporation of Kozhikode. 2. Petitioner and his three brothers are the owners of the land in survey No. 58/3B-59. Petitioner applied for permission to construct ground plus 12 floor building of about 25,000 sq.ft. The first respondent Corporation issued permit No. E4/3952/09 dated 19.2.2010. Petitioner demolished the old building in the property and had undertaken property development works. Piling work was undertaken and he had spent a few lakhs of rupees for the construction activities. While so, the 2nd respondent, W.P.(C) No.38088/2010 2 Town Planning Officer of the first respondent Corporation, issued Ext.P1 notice dated 8.6.2010 directing the petitioner to stop the construction activities immediately. Ext.P1 refers to the letter dated 23.3.2010 issued by the District Judge, Kozhikode. Ext.P1 states that the work stoppage was necessitated due to the concern expressed by the District Judge Kozhikode that the construction would affect the security of the District Court. Thereupon, the petitioner submitted a representation dated 14.6.2010 to the District Judge, Kozhikode. In the representation, the petitioner pointed out that the construction of the building in the adjacent property of the District Court Complex will not cause any security problem to the Court premises. Ext.P2 is the copy of the representation. Petitioner also submitted Ext.P3 letter to the Town Planning Officer in reply to Ext.P1 notice and requested the Town Planning Officer to afford an opportunity of being heard to the petitioner and withdraw Ext.P1 order . W.P.(C) No.38088/2010 3 3. Considering Ext.P3 reply to Ext.P1 order, first respondent issued Ext.P4 order dated 13.7.2010. By Ext.P4, Ext.P1 order was withdrawn and permitted the petitioner to continue the construction activities. Petitioner again started construction activities in his property. While so, the petitioner was served with Ext.P6 order dated 30.10.2010 by which the first respondent stated that Ext.P4 stands withdrawn and directed the petitioner to immediately stop the construction activities in the property. Ext.P6 refers to the letter B4/5372/10 dated 6.10.2010 of the District Judge, Kozhikode marked as. Ext.P7. In Ext.P7 it is requested that in view of the security problem construction of high rise building and towers adjacent to the court premises shall be prohibited. It is also stated that six storied Bicentenary Memorial Court complex is under proposal for construction for accommodation of various courts. It is further stated that therefore, high rise building near to court complex will create problems related to security. W.P.(C) No.38088/2010 4 In Ext.P7 there is reference to the communication issued by this Court directing District Judge Kozhikode to take up the subject matter with the District Collector, Kozhikode to take appropriate steps to declare the Court Complex, Kozhikode as Security Zone under sub clause (bpa) to Rule 2 of the Kerala Municipality Building Rules, 1999 (amended by G.O.(MS) No. 128/2010/LSGD dated 21.6.2010). 4. Petitioner submits that the court complex is not declared as security zone for the purpose of Kerala Municipality Building Rules, that the property of the petitioner wherein the construction is being carried out lies outside the court complex, that rule 5(6B) of KMBR relates to application for development or redevelopment within the security zone and therefore, even if the court complex is notified as security zone, construction of the apartment complex, in the property of the petitioner and his family, cannot be the subject to any proceedings relating to construction within the security zone. W.P.(C) No.38088/2010 5 Petitioner further submits that multi-storied building belonging to a prominent news paper company lies on the eastern side and a church is located on the northern side of the court complex. These buildings are public places to which members of the public can easily gain access, whereas the proposed construction in the property of the petitioner and his family is a privately owned apartment complex. Petitioner further pointed out that in Ext.P7 learned District Judge has referred to Rule 5 Sub Rule (i)(1a) in Notification G.O.(MS) No. 249/2009/LSGD dated 16.12.2009 which requires permission of the owners of the adjoining lands required in cases of excavation where the depth of excavation is greater than the horizontal distance from the nearest boundary of the petitioner's property. It is pointed out that though vide G.O. dated 16.12.2009, Rule 5 of KMBR was amended adding Rule 5(1a) which requires permission from the adjacent property owners, the petitioner did not obtain consent and that subsequently this provision was deleted W.P.(C) No.38088/2010 6 vide G.O.(MS) No.128/2010/LSGD dated 21.6.2010 and therefore, the question of seeking prior permission from the court authorities is not necessary. Petitioner further submits that distance from the boundary of court premises to the place of excavation in this case is 5 metres and that as on till date, only one metre has been excavated. Petitioner contends that existence of the court building is marked in the plan submitted by the petitioner which was approved by the Corporation and therefore, the allegation that the existence of court building is suppressed is baseless and incorrect. Petitioner submits that the allegation that the construction will affect the security of the Court is completely misconceived and that the action of the District Judge, requesting the District Collector to take steps to declare the Court complex as security zone comes much after the sanctioning of the petitioner's building plan and on that short ground the same cannot affect the vested right of the petitioner, who obtained a valid building W.P.(C) No.38088/2010 7 permit. It is further contended that stop memo issued by the Corporation after sanctioning the permit on 19.2.2010 on the mere request of the District Judge is arbitrary and illegal. 5. Petitioner in the reply affidavit, pointed out that the first stage of piling work was completed initially on 29.5.2010 and that the Corporation issued the stop memo on 30.10.2010. Petitioner also produced Ext.P8 series photographs showing the lie and the stage of construction and the existence of buildings in the adjacent compounds. 6. The respondents 1,2 and additional 4 & 5 filed counter affidavits. In the joint counter affidavit filed by respondents 1and 2 it is inter alia stated that apartment building consists of 21 flats as per the approved plan and that the building permit was granted on 19.2.2010 and that the District Judge in his letter dated 20.3.2010 had expressed concern over the proposed multi-storied construction adjacent to court complex. In reply to the W.P.(C) No.38088/2010 8 said letter, the Corporation had sent copies of the permit and approved plan to the District Judge for his remarks and the construction was stopped when the remarks from the District Judge was received. It is also stated that since no reply was received, Ext.P4 order was issued revoking Ext.P1 stop memo enabling the petitioner to continue the construction activities. 7. In paragraph 4 of the counter affidavit, it is stated that the District Judge in his letter dated 6.10.2010 has asked the Corporation to stop the construction activities of the petitioner and hence Ext.P6 order was issued directing the petitioner to stop the construction till further notice. It is further pointed out that G.O.(MS) No. 128/2010/LSGD dated 21.6.2010 inserts rule 11(A) in the KMBR 1999. As per Rule 11A(6) after the excavation and completion of such works shall be intimated to the Secretary and with the consent of the Secretary only, the developer can continue the work and that no such intimation was received by the Secretary till W.P.(C) No.38088/2010 9 date. It is also pointed out that KMBR 1999 does not prohibit construction adjoining court complex or no order was issued by the Government in the matter. 8. In the counter affidavit filed by additional 4th respondent it is pointed out that as per rule (1a) introduced by Rule 7 of the Kerala Municipality Building Rules 1999, by G.O.(MS)NO. 249/2009/LSGD dated 16/12/2009, certain restrictions and pre-requisites are stipulated for compliance by owners proposing constructions of buildings which require excavation of land in depths and the construction was started in total violation of Rule 7(1) (1a) of the Kerala Municipality Building Rules. Counter affidavit also referred O.M.No. D4 (A)-54177/2010 dated 6.9.2010 addressed to the District Judge directing him to move the District Collector to take appropriate steps to declare court complex and its area as 'security zone' under Sub Clause (bpa) of Rule 2 of the Kerala Municipality Buildings Rules 1999 as amended by G.O.(MS) NO. 128/2010/LSGD dated W.P.(C) No.38088/2010 10 21.6.2010 and to stop construction of the high rise building near the court by the petitioner, pending consideration of the entire matter. The said letter is marked as R4(b). In the counter affidavit, it is further stated that in compliance with the directions in R4(b) letter the District Judge took up the matter with the District Collector. In the meanwhile, the Corporation by Ext.P4 notice cancelled the stop memo issued on 8.6.2010. The District Judge in the letter marked as Ext.P7 addressed to the Secretary of the Corporation requested the Secretary to see that the construction by the petitioner is stopped pursuant thereto the Secretary of the Corporation issued Ext.P6 memo. 9. Ext.P1 refers to the letter dated 23.3.2010 issued by the District Judge Kozhikode. The reasons stated for issuing Ext.P1 stop memo is the concern expressed by the District Judge that construction would affect security of the District Court. Ext.P2 is the representation dated 17.6.2010 submitted by the petitioner to the W.P.(C) No.38088/2010 11 District Judge, Kozhikode in which he stated that the proposed building will not cause any security problem to the court premises. Petitioner also submitted Ext.P3 representation dated 19.6.2010 to the Town Planning Officer , Kozhikode Corporation in which he explained that no explanation is sought for from him and his family members to the alleged security hazards and requested the Town Planning Officer that he should be given an opportunity of being heard on the matter. Thereafter, the Secretary of the 1st respondent Corporation issued Ext.P4 notice on 13.7.2010 in which it was stated that Ext.P1 being withdrawn and construction activities could be proceeded with. Few months thereafter, again the Corporation issued Ext.P6 stop memo directing the petitioner to stop the construction work. In Ext.P6 stop memo there is reference to the letter of the District Judge dated 6.10.2010. In Ext.P6 stop memo it is stated that Ext.P4 stands withdrawn and that construction should be immediately stopped until further orders. W.P.(C) No.38088/2010 12 From the aforesaid materials and facts, it is revealed that Ext.P6 stop memo was issued on the basis of Ext.P7 request of the District Judge, Kozhikode. Ext.P6 stop memo was issued as a temporary measure pending decision in the matter. Admittedly, the petitioner was not afforded an opportunity of hearing before issuing Ext.P1 order, Ext.P6 stop memo nor any communication was issued to him directing to show cause as to why the construction shall not be proceeded with. Petitioner submits that he is entitled to proceed with the construction in accordance with the permit and approved plan issued by the first respondent Corporation. According to the petitioner, his right over the property is seriously infringed by the illegal action of issuing Ext.P6 stop memo. Petitioner submits that Ext.P7 communication issued by the District Judge itself shows that till date the court complex in question has not been declared as security zone for the purpose of KMBR Rules and that the Rule pointed out by the District Judge in Ext.P7 relates to W.P.(C) No.38088/2010 13 application for development or redevelopment within the security zone. According to the petitioner, assuming that the court complex is notified as security zone, construction of apartment complex in the property of the petitioner cannot be subject to legal regime relating to construction within the security zone. Learned counsel for the petitioner submits that petitioner has right to carry out the construction in accordance with law on the basis of the sanctioned plan and in accordance with the Rule applicable as on the date of permit. Petitioner submits that the Kerala Municipality Building Rules 1999 do not contain Rule prohibiting construction in the adjoining property of the court complex and as such Ext.P6 stop memo is liable to be interfered with. Taking into consideration the contentions raised by the parities, it is for the first respondent to pass appropriate orders, after hearing the petitioner and other affected parties. Therefore, the writ petition is disposed of directing the Secretary of Kozhikode Corporation to consider the W.P.(C) No.38088/2010 14 matter and pass appropriate orders in accordance with law, after affording an opportunity of being heard to the petitioner and District Judge or his nominee within a period of one month from the date of receipt of a copy of this judgment. HARUN-UL-RASHID JUDGE al