The court emphasized that a no-objection certificate under the Kerala Highway Protection Act cannot be required without prior publication of building line and control line notifications.

JUDGMENT

The petitioners were granted building permit by the fourth respondent Municipality to construct a commercial building. They are aggrieved by a stop memo issued by the second respondent as Ext.P10, on the ground that no objection has not been obtained from the K.S.T.P. (Kerala State Transport Project), as the road in question is one notified under the Highway Protection Act as a Highway.

2. The petitioners were initially granted building permit as per Ext.P1 in 1999 and they jointly own 8 cents of land. There was a condition in Ext.P1 that they should provide parking lot. According to the petitioners, there was a dispute with the neighbouring property owners which led to the delay in completing the construction and the petitioners had to give two cents of land to a neighbour. The period of Ext.P1 permit was extended as per Ext.P2, for a period of three years from 23.11.2002 and it was further extended from 26.11.2005 for another period of three years, during which period they completed the foundation and piling work. In the year 2007 a stop memo was issued by the Special Tahsildar (LA), National Highway wpc 6129/2010 2 stating that acquisition proceedings are pending against the petitioners; property. A copy of the stop memo is produced as Ext.P3. The petitioners moved the Government in the matter and pursuant to the directions issued by this Court in W.P.(C) No.23068/2004 the Government passed Ext.P4 order exempting the petitioners' property from acquisition. One of the conditions in Ext.P4 that the ground floor of the building be set up for public parking whenever the building is constructed, was deleted by a a later order, Ext.P5. Again, renewal of the permit was sought for, which was granted by the Municipality as per Ext.P7. It is at that stage Ext.P10 stop memo was issued.

3. The petitioners are relying upon Ext.P9 circular issued by the Government to show that the building line and control line have not been published in the official gazette and therefore there is no embargo in issuing a building permit. The said circular is issued by the Local Administration Department of the Government. It is therefore contended that unless such a notification is issued under Section 18 of the Kerala Highway Protection Act , the second respondent cannot insist for a no objection from him. It is further contended that KSTP is only a project and the Executive Engineer of the Project is not empowered to issue a stop memo also. Ext.P11 is a communication issued by the Executive Engineer, P.WD Division (Roads)

wpc 6129/2010 3 to the Assistant Executive Engineer, Roads Sub Division, to the effect that till fresh orders are passed by the Government, even without NOC from the Roads Division, the local authorities can issue building permits. This is also relied upon by the petitioners. Ext.P12 is a later stop memo issued, which was later withdrawn as per Ext.P13, in the light of Ext.P11.

4. The respondents have filed a counter affidavit and an additional counter affidavit and the petitioners have filed a reply affidavit also.

5. Learned Senior Counsel Shri K. Ramakumar, appearing for the petitioners submitted that the second respondent has no power to issue the stop memo as K.S.T.P. is only a project. It is further pointed out that unless there is a notification published in terms of Section 18 of the Highway Protection Act notifying building line and control line, the second respondent cannot insist for a no objection under Section 19 of the Act. It is submitted that the said question is covered in favour of the petitioner by a decision of this Court inPeer Mohammed v. Chirakandam Grama Panchayat ( 2008 (3) KLT 300 ).

6. In the counter affidavit filed by the second respondent, mainly it is contended that the property of the petitioners is by the side of M.C. Road in Changanacherry town. It is part of a Highway and the Chengannor-

wpc 6129/2010 4 Kottayam reach is included in the upgradation project of the Kottarakkara- Chengannore-Kottayam