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2024 Supreme(Online)(KER) 31444
HIGH COURT OF KERALA
MOHAMMED NIAS C.P., J
L.G.KRISHNA KUMAR – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) 19867/2023
N.RATHEESH, SUMA RATHEESH, SHANKAR RETHEESH, SMT. AMMINIKUTTY.K., SR.GP., SHRI.K.S.PRENJITH KUMAR, CGC, G.SANTHOSH KUMAR (P)
Valid restrictions on property rights must be substantiated by clear evidence; mere claims without proof are insufficient to deny construction.
Headnote:
Construction - Property Rights - Works of Defence Act - Sections 3 - The court interpreted the provisions of the Works of Defence Act, emphasizing that valid restrictions must be based on clear evidence of safety zones. The absence of such evidence led to the quashing of the denial for construction approval.
Fact of the Case:
The petitioner, owner of land near a defense establishment, sought approval for construction but was denied due to safety zone restrictions. The petitioner argued that his property was outside the restricted area, supported by a commission report.
Finding of the Court:
The court found that the petitioner's property was not within the safety zone as claimed by the respondents. The commission report indicated other buildings closer to the defense establishment, undermining the respondents' position.
Issues: Whether the petitioner's property falls within the safety zone of the Naval Armament Depot, thereby justifying the denial of construction approval.
Ratio Decidendi: The court held that without clear evidence of the safety zone encompassing the petitioner's property, the denial of construction approval was unjustified, especially given the existence of other nearby constructions.
Final Decision: The writ petition is allowed, quashing the denial of construction approval.
JUDGMENT
The petitioner is stated to be the owner in possession of 5.180 Cents of land comprised in Resurvey No.212/4/3, Block No.36 of Aluva East Village under Ext.P1 partition deed dated 1.2.2007. The petitioner submits that his property is 280 meters from the compound wall of the sixth respondent Naval Armament Depot (NAD). It is also stated that after the boundary of the NAD compound wall, there is a public road and thereafter Periyar Valley Irrigation Project Edappally Main Branch Canal and further to that another public road is lying, which is about 100 meters away from the petitioner's property. Intending to construct a residential house, the petitioner approached the seventh respondent and submitted a building plan for approval. He was informed that NOC is required from the sixth respondent.
2. The petitioner constructed the house about 10 years back and approached the seventh respondent to assign a building number. The petitioner points out that as per the letter issued by the second respondent dated 18.5.2011 Ext.P3, the only restriction is for construction within 100 meters of the defence establishment and that too only if there is a threat of security hazard. Beyond the distance of 100 meters, there is no objection for buildings having two or three storyes. The request of the petitioner to issue an NOC for the construction was turned down as per Ext.P11 order dated 19.1.2021, on the ground that the property falls within the safety zone of the NAD. The petitioner accordingly prays for quashing GOI, MOD Gazette notification dated 15.02.1992 and public notice dated 18.12.1995, which are produced as Exts.R6(b) and R6(c) by the respondent. There is also a prayer to direct the eighth respondent to measure and demarcate 5.180 Cents of land so as to assess the distance from the outer compound wall of NAD to the petitioner's property.
3. A counter affidavit has been filed on behalf of respondents 2 to 6, wherein, relying on Exts.R6(a) and R6(b) and their power to impose restrictions under Section 3 of the Works of Defence Act , it is stated that there is a prohibition for any type of construction within the safety zone. It is also stated that the distance from the compound wall of NAD is not the basis of reference for deciding the safety zone and that the safety zone has been notified based on the survey numbers and not with reference to the distance from the compound wall.
4. The petitioner had filed an application to appoint an Advocate Commissioner to measure and assess the distance between the petitioner's house and the NAD compound wall. The said application was allowed by order dated 5.4.2024. IA No. 3 of 2024 was an application filed by the petitioner to direct the eighth respondent District Collector to produce the sketch plan of the land survey numbers which shows the prohibited area for construction in the vicinity of the Naval Armament Depot
5. The Commissioner, who inspected the property with notice to all the parties found that the distance from the compound wall is 140 meters on one side and 130 meters on the other. The Commissioner states about the buildings in between the residential house of the petitioner and the NAD compound wall, that there are five residential houses, the details of which are also furnished. The Commissioner also noticed seven other residential houses situated on the western side of the compound wall of the demolition ground of NAD which is approximately 20-30 meters away from the compound wall. The Commissioner has also noticed in addition to the above residential building, several other residential houses are in the locality. The Commissioner also finds that there are no signs, boards or other indicators to earmark any prohibited area as claimed by the respondents in the locality of the petitioner's property. The sketch produced along with the Commission report showed the distance of 140 and 130 meters on two sides to the petitioner's house from the NAD compound.
6. As rightly suggested b
