Restrictions on building permits related to military establishments require valid declarations and notifications under the Works of Defence Act, 1903 to be enforceable.

JUDGMENT :

HARISANKAR V. MENON, J.

1. The petitioner is stated to be in ownership and enjoyment of 1.72 Ares of landed property situated in Re.Sy.Nos.3/1 and 4/1 of Sasthamangalam Village. He submitted Ext.P2 application dated 28.12.2021, for obtaining a building permit from the Thiruvananthapuram Corporation. In reply, the Corporation issued Ext.P3, dated 13.05.2022, informing that though the proposed construction is within a distance of 70 metres from the “Pangodu Military Station” on the basis of a letter from the Station Commander of Pangodu military station, no construction within a radius 100 metres would be permitted, unless and until an NOC from the military establishment is obtained. The petitioner has filed the captioned writ petition, seeking to challenge Ext.P3 issued as above by the respondent Corporation, as well as the circular at Ext.P4 issued by the Government dated 12.02.2022.

2. I have heard Sri. M.P.Ashok Kumar, the learned counsel for the petitioner, Sri.Suman Chakravarthy, the learned Standing Counsel for the respondent Corporation, Sri.M.S.Kiran, the learned senior panel counsel for the 3^rd respondent herein, and Smt.Sylaja S.L., the learned Government Pleader.

3. The short issue arising for consideration in this writ petition is as to whether the interdiction pursuant to Ext.P3 could be sustained or not.

4. Sri.Ashok Kumar, the learned counsel for the petitioner, would make extensive reference to the provisions of the Works of Defence Act, 1903 (hereinafter referred to as the ‘Act’) - the provisions under Sections 3, 8 and 9 - to contend that unless and until a separate declaration as prescribed under Section 3 followed with a notification under the provisions of Section 9 has been issued, no interdiction in the nature of the one sought to be imposed herein could be enforced as regards a building proposed to be constructed. He also sought to rely on the judgment of this Court in Rubina Sajith v. State of Kerala, 2022 (1) KLT 650 as well as Ganesan v. Vilavoorkal Grama Panchayath, 2021 (1) KLT 392 in support of his contentions. He further relied on the judgment of the Bombay High Court in Union of India v. State of Maharashtra and Others, (2023) 10 Bom CK 0052 to state that no declaration with reference to or notification under has been produced by the respondents herein, and that mere reliance on certain guidelines is insufficient. He would also submit that Ext.R3(e), relied on by the 3^rd respondent in the counter affidavit, would also not be relevant on account of the provisions of the Act.

5. The learned counsel for the respondent Corporation would point out that it was only on account of the insistence from the side of the Station Commander of the Pangodu Military Establishment that they were not in a position to issue the building permit. The learned counsel for the 3^rd respondent sought to justify the action by placing reliance on a series of guidelines issued in this regard, which were produced along with the counter-affidavit filed by the 3^rd respondent.

6. I have considered the rival submissions as well as the connected records.

7. The provisions under Sections 3, 8, and 9 of the Act require to be referred to, which reads as under:-

“8. Land to be marked out, measured, registered and planned.—As soon as may be after the publication of the declaration aforesaid, the Collector shall cause the land to be marked out and measured, and shall also prepare a register and a detailed plan, which shall be on a scale not smaller than six inches to the mile, showing accurately every building, tree and other obstruc