IMPORTANT POINT
In the absence of any provision in Section 3 of the Act concerning the ancillary units of the works of defence such as lodger units in the case on hand, or of any site intended to be used or to be acquired for any such works included in the declaration, according to me, the restrictions imposed in terms of the Act would not apply to any lands other than lands specifically mentioned in the declaration.

JUDGMENT :

Petitioner and his wife hold an item of land at Mukkunnimala within the limits of the first respondent Panchayat. They preferred an application before the Panchayat for building permit to put up a residential building in the said land. The Kerala Panchayat Building Rules, 2011 (2011 Building Rules) was in force at the time when the petitioner preferred the application. The land of the petitioner is situated within 100 meters of an establishment of the Indian Air Force. In terms of Rule 7(5) of the 2011 Building Rules, in the case of an application for construction of building within a distance of 100 meters from any property maintained by the Defence Establishments, the Secretary of the Panchayat is required to consult in writing the officer in charge of the establishment and required to consider the objections, if any, of the officer also while considering the application for building permit. In the light of the said Rule, the Secretary of the Panchayat sought the No Objection Certificate of the second respondent, the Chief Administrative Officer of the Air Force Station, Shangumugham, under whose jurisdiction the establishment of the Indian Air Force at Mukkunnimala falls. The request made by the Secretary of the Panchayat was, however, turned down by the second respondent. The Secretary of the Panchayat, in the circumstances, issued Ext.P9 communication to the petitioner and to his wife informing them that the building permit sought by them cannot be granted. Ext.P9 communication is under challenge in the writ petition.

2. A statement has been filed initially on behalf of the second respondent in the matter. Later, as directed by this court, a few counter affidavits/affidavits have also been filed by the second respondent.

3. In the statement filed on behalf of the second respondent, the stand taken by the second respondent is that the land of the petitioner is situated 10 meters away from the establishment and there is a restriction on constructions upto 100 meters from the boundary wall of the establishment. In the counter affidavit filed by the second respondent later on 14.11.2019, it is stated that the establishment is one of the lodger units of the Shangumughom Air Force Station and the restriction on constructions is imposed in terms of Ext.R2(g) declaration issued under the Works of Defence Act 1903 (the Act).

4. On 15.11.2019, this Court directed the second respondent to explain as to how a lodger unit of an Air Force Station included in Ext.R2(g) declaration would fall within the scope of the said declaration. Thereupon, an additional counter affidavit has been filed by the second respondent on 14.01.2020 stating that all areas brought under the command and control of the Air Force Stations included in the declaration would also fall within the scope of the declaration.

5. Heard the learned counsel for the petitioner, the learned counsel for the Panchayat as also the learned Assistant Solicitor General of India.

6. The contentions advanced by the learned counsel for the petitioner, in essence, is that the restriction in terms of Ext.R2(g) declaration does not apply to the establishment of the Air Force at Mukkunnimala in as much as the said establishment is not included in the said declaration.

7. Per Contra, the learned Assistant Solicitor General of India submitted that the establishment of the Indian Air Force at Mukkunnimala being part of the Air Force Station at Shangumukham included in Ext.R2(g) declaration, the restrictions in terms of the declaration would apply to the lands around the said establishment also, irrespective of the fact as to whether the same is specifically included in the declaration.

8. 2011 Building Rules has now been replaced by the Kerala Panchayat Building Rules, 2019 (2019 Building Rules) and in terms of sub-rule (4) of Rule 5 of 2019 Building Rules, No Objection Certificate of the officer in charge of the defence establishment is required for the Panchayat to consider an applicat