Kerala High Court
K.M.Kamarban vs State Of Kerala on 24 August, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942
WP(C).No.16195 OF 2020(Y)
PETITIONER/S:
K.M.KAMARBAN
AGED 69 YEARS
W/O. T.N SAIDU MUHAMMED, THARAKAN HOUSE, PARIYARAM
POST, CHELANJICHAL.
BY ADV. SMT.CELINE JOSEPH
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO LOCAL SELF GOVERNMENT
DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM
695 001
2 THE DISTRICT COLLECTOR,
WAYANAD DISTRICT 673 122
3 THE SUPERINTENDENT OF POLICE,
WAYANAD DISTRICT 673 122
4 THE SECRETARY,
MUTTIL GRAMA PANCHAYATH, MUTTIL P.O, WAYANAD DISTRICT
673 122
5 THE DEPUTY DIRECTOR OF PANCHAYATH,
KALPETTA, WAYANAD DIST 673 121
6 C.M ASSASSUL ISLAM SANGAM,
PARIYARAM POST WAYANAD, REPRESENTED BY ITS PRESENT
PRESIDENT, AHAMMED SHA , AGED ABOUT 50 YEARS, FATHERS
NAME NOT KNOWN TO THE PETITIONER, URUTTIYIL HOUSE,
CHILANJICHAL, PARIYARAM POST, WAYANAD DISTRICT 673
122
7 PUTHENKANDY ABOOBACKER,
AGED 42 YEARS
FATHERS NAME NOT KNOWN TO THE PETITIONER, PUTHUKKANDY
HOUSE, PULLERI, PARIYARAM POST, CHELANJICHAL, WAYANAD
SECRETARY, C.M ASSASSUL ISLAM SANGAM, PARIYARAM 673
122
WP(C).No.16195 OF 2020(Y) 2
8 HAMID ANAS SAKHAFI,
S/O. ABDUL KHADER FAISY, ULLATTUPARAMBIL HOUSE,
CHELANJICHAL, PARIYARAM POST 673 122
9 JUMAILTH,
W/O. HAMID ANAS SAKHAFI, ULLATTUPARAMBIL HOUSE,
CHELANJICHAL, PARIYARAM POST 673 122
10 P.A SALAHUDHEEN,
PULAVOOR VEEDU, (FATHIMA MANZIL), PARIYARAM POST
673 122
OTHER PRESENT:
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.16195 OF 2020(Y) 3
ALEXANDER THOMAS, J.
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W.P.(C.) No.16195 of 2020
-----------------------------------------
Dated this the 24th day of August, 2020
JUDGMENT
The case set up in the Writ Petition (Civil) is as follows :
That the petitioner is a senior citizen residing at Chilanjichal in Wayanad District. On the Western side of the petitioner's property the respondents 6 to 10 constructed building after obtaining building permit from the 4th respondent. The permit was obtained for constructing a private hostel and home stay. After completion of the building the respondents 6 to 9 began to use the same as a Mosque C.M. Assassul Islam Sunni Juma Masjid, Chilanjichal. The building was constructed without observing any of the rules laid down in building rules. The construction of a religious worship place should be after the prior permission of the District Collector. In this regard no permission was obtained. Running of private hostel and home stay will also require permission from concerned authorities. The respondents used very powerful loud speaker and the loud noise from the loud speaker is causing much disturbance, sound pollution etc., to the petitioner and other inhabitation of the area. Moreover, the respondents 6 to 10 began to use a portion of the building as a Madrassa without complying mandatory legal requirements. The petitioner is a widow and an aged lady suffering from various ailments and is undoing treatment. People with heart complaint, small children and school going students are also residing in the nearby premises. The petitioner and other inhabitants of the area submitted representation before the respondents 2 to 5 for redressal of their grievance. The 4 th respondent issued Exhibit P5 stop memo and directed the Circle Inspector of Police, Wayanad to implement the order. The respondents 6 to 10 completely ignored the same and WP(C).No.16195 OF 2020(Y) 4 proceeded with the unlawful acts. Though the authorities found that there is violation of rules and regulation, they are not dared to take action on respondents 6to 10 due to immense pressure from the political parties. In the meanwhile respondents 6 to 10 commenced construction of another building in the adjacent compound of the mosque to be used a madrassa without obtaining valid permit from the Panchayath. Two floors are already constructed. They are assembling children in the area and conducting swalath/moulooth (kU7`pa{t\Tn) causing disturbance to the nearby inhabitants of the area. The present mosque constructed and used in violation of building rules and use of high power loud speaker in the masjid and madrassa throughout the day is a disturbance and nuisance to the peaceful living of the inhabitants of the area. The official respondents are indirectly assisting the respondents to proceed with their unlawful activities. Therefore petitioner filed a complaint before the ombudsman for Local Self Government Institutions Thiruvananthapuram in O.P.153/2020 and the petition is still pending for consideration. But it is learnt that 4th respondent is going to grant building permit to respondents 6 to 10 to their proposed lodge building (used as madrassa) under the influence of official respondents and local politicians. Therefore the petitioner filed Exhibit P18 representation before the 4th respondent Muttil Panchayath asking them not to issue new building permit for the proposed lodge building till the disposal of O.P.133/2020 pending before the ombudsman for Local Self Government Institutions Thiruvananthapuram. So far they have not acted upon the same. The conduct of respondents 2 to 5, in the circumstances, has infringed the fundamental rights guaranteed to the petitioner under the Constitution of India. The inaction on the part of respondents 2 to 5, in the facts and circumstances, is due to extraneous reasons.
2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers :
a. to issue a writ of mandamus or appropriate writ or necessary directions to the respondents No.2 to 5 to execute the order No.A4-9305/2019 dated 26.10.2019 issued by the 4 th respondent to stop the functioning of the building and use of the high power loud speaker.
b. To issue direction to the 4 th respondent to execute the order referred in WP(C).No.16195 OF 2020(Y) 5 A4 6942/2019 dated 19.08.2019 communication issued to 2 nd respondent. c. To issue direction to the Secretary Muttil Grama Panchayath to restrain from issuing building permit to the respondents 6 to 10 for construction of the proposed building as shown in exhibit P16 photographs till the disposal of the O.P.153/2020 of the Hon'ble Ombudsman for Local Self Government Institutions.
d. issue a writ, order or direction declaring that the action of the 4 th respondent in not taking action for removal of illegal construction made by the 6 to 10 respondents as illegal and arbitrary and consequently direct the 4 th respondent to take action for removal of the constructions made in contravention of building permit and not to allow the 6 to 10 respondents to use the lodge building for conduct of Madrassa, and pass such other or further order or orders as deem fit and proper in the circumstances of the case.
e. issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to take appropriate action on complaints/representations of the petitioner especially Exhibit P18, within a time limit to be prescribed by this Honourable Court.
3. Heard Sri.Gracious Kuriakose, learned senior counsel instructed by Smt.Celine Joseph, learned counsel appearing for the petitioner, Sri.K.J.Manuraj, learned Government Pleader appearing for respondents 1 to 3 and 5. In the nature of the orders proposed to be passed in this petition, notices to R4 (Muttil Grama Panchayat) and contesting respondents 6 to 10 will stand dispensed with.
4. Taking note of the facts and circumstances of this case, it is ordered that the 4th respondent-Secretary of the Muttil Grama Panchayat will take up for consideration the matters raised in Ext.P18 representation dated 2.7.2020 for consideration without any further delay and may ensure that an inspection is conducted with due prior notice to the petitioner as well as to contesting respondents 6 and 7, so as to ascertain the correctness or otherwise of the allegations raised in Ext.P18 representation and copies of the said inspection report should be given to both the petitioner and the respondents 6 and 7 and thereafter, the 4 th respondent-Secretary of the WP(C).No.16195 OF 2020(Y) 6 Grama Panchayat will afford reasonable opportunity of being heard to the petitioner and the contesting respondents 6 and 10, through their authorised representative/counsel, if any and then should take a considered decision so as to pass orders on Ext.P18 representation, in accordance with law, preferably within a period of 5 weeks from the date of receipt of a certified copy of this judgment.The abovesaid process of inspection shall be duly conducted and completed within 2 weeks from the date of receipt of a copy of this judgment, so that the overall time limit of 5 weeks could be strictly adhered to by the 4 th respondent-Secretary of the Grama Panchayat.
5. While so passing orders, the 4 th respondent-Secretary of the Grama Panchayat will ascertain as to whether the abovesaid alleged use of the building for prayer purpose etc. would require prior permission of the District Collector/District Magistrate as envisaged in the rule and whether such prior permission of the District Collector/District Magistrate has been obtained as per the rules etc.
6. Further, it is ordered that the 4th respondent-Secretary of the Grama Panchayat should ensure that the orders are passed on Ext.P18 representation as aforedirected before any decision is taken on the application for grant of building permit that may have been submitted on behalf of the contesting respondents 6 to 10.
7. The petitioner will produce a certified copy of this judgment WP(C).No.16195 OF 2020(Y) 7 along with the copy of the memorandum of this W.P.(C.) with all the exhibits before the 4th respondent-Secretary of the Grama Panchayat for necessary information and further action. Registry will forward certified copies of this judgment to contesting respondents 6 to 10, at the cost of the petitioner.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.16195 OF 2020(Y) 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PERMIT ISSUED BY THE
MUTTIL GRAMA PANCHAYATH DATED 10.03.2016.
EXHIBIT P2 TRUE COPY OF THE PLAN OF THE BUILDING
SUBMITTED TO THE PANCHAYATH.
EXHIBIT P3 TRUE COPY OF THE COMPLETED BUILDING PLAN
SUBMITTED TO THE PANCHAYATH.
EXHIBIT P4 THE PHOTOGRAPHS OF THE COMPLETED BUILDING
OF THE RESPONDENTS 6 TO 8.
EXHIBIT P5 TRUE COPY OF THE STOP MEMO ISSUED BY THE
4TH RESPONDENT BY ORDER IN NKO.A4-9305/19
DATED 26.10.2019.
EXHIBIT P6 TRUE COP OF THE COMMUNICATION DATED
14.11.2019 ISSUED TO THE CIRCLE INSPECTOR
OF POLICE ,WAYANAD BY THE 4TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED
19.08.2019 ISSUED TO THE DISTRICT COLLECTOR
BY THE 4TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION FILED
BEFORE THE SUPERINTENDENT OF
POLICE,WAYANAD.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
28.09.2019 FILED BY THE 5TH RESPONDENT
EXHIBIT P10 TRUE COPY OF THE COMPPLAINT FILED BEFORE
THE NATIONAL COMMISSION FOR PROTECTION OF
CHILD RIGHTS.
EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED
30.11.2019 ISSUED BY THE 5TH RESPONDENT TO
THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED
16.01.2020 FILED BEFORE THE STATE POLICE
CHIEF.
EXHIBIT P13 THE ORDER DATED 04.02.2020 ISSUED FROM THE
OFFICE OF THE DISTRICT POLICE.
EXHIBIT P14 PETITION RECEIVED DATED 26.06.2020 FROM THE
WP(C).No.16195 OF 2020(Y) 9
4TH RESPONDENT OFFICE
EXHIBIT P15 REPLY RECEIVED DATED 26.06.2020 FROM THE
4TH RESPONDENT OFFICE
EXHIBIT P16 TRUE COPY OF THE PHOTOGRAPHS OF THE
PROPOSED BUILDING.
EXHIBIT P17 TRUE COPY OF COMPLAINT BEFORE THE OMBUDSMAN
DATED 09.03.2020 FOR THE LOCAL SELF
GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM. EXHIBIT P18 TRUE COPY OF THE REPRESENTATION DATED 02.07.2020 SUBMITTED BEFORE THE 4TH RESPONDENT.