Kerala High Court
Viswambaran vs State Of Kerala on 19 July, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
WP(C) NO. 7745 OF 2020
PETITIONERS:
1 VISWAMBARAN
S/O.SANKUNNY, PAMPUMKADAN HOUSE,
THALORE.P.O, TRICHUR-680306
2 CHANDRAN
S/O.VELAYUDHAN, PAMPUMKADAN HOUSE, THALORE.P.O,
TRICHUR-680306
BY ADVS.
SMT.V.P.SEEMANDINI (SR.)
SRI M.R.ANISON
SMT.V.BHARGAVI (PANANGAD)
SMT.P.A.RINUSA
RESPONDENTS:
1 STATE OF KERALA
REP BY ITS SECRETARY TO GOVT, HOME DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPRUAM-695001
2 THE DISTRICT COLLECTOR,
COLLECTORATE, TRICHUR-680001
3 THE VICAR
INFANT JESUS CHURCH, THALORE,
THRISSUR DISTRICT-680306
4 THRISSUR ARCHDIOCESE REP
BY ITS PRESIDENT, ARCH BISHOP BISHOP HOUSE,
THRISSUR-680005
5 CENTRAL BOARD OF SECONDARY EDUCATION
REPRESENTED BY ITS SECRETARY,
SHIKSHA KENDRA, 2N,
COMMUNITY CENTRE,
PREETH VIHAR,
DELHI-110092
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
2
6 NENMANIKKARA GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, CHITTISSERY.P.O,
PALIYEKKARA, THRISSUR DISTRICT-680005
BY ADVS.
SMT.K.R.DEEPA, SPL.GOVT.PLEADER (LSGD)
SRI KURIAN GEORGE KANNANTHANAM (SR.)
SRI.LINDONS C.DAVIS
SRI.NIRMAL S., SC, CBSE
SRI.C.HARIKUMAR
SRI.RAJITH DAVIS
SRI.RENJITH RAJAPPAN
SMT.E.U.DHANYA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.07.2024, ALONG WITH WP(C)NOS.7787/2020 AND 2712/2021, THE
COURT ON 19.7.2024 DELIVERED THE FOLLOWING:
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
WP(C) NO. 7787 OF 2020
PETITIONERS:
1 JOY EDUTHAN
S/O.E.V.ANTONY,EDUTHAN HOUSE,THALORE, THRISSUR,PIN-
680306.
2 VINCENT.T.C,
S/O.CHIRAYATH THRISSOKARAAN CHAKKU, THRIKKUR
VILLAGE,MUKUNDAPURAM TALUK, THALORE,THRISSUR,PIN-
680306.
3 P.J.XAVI,
S/O JOSEPH,PORATHUR HOUSE,
THAIKKATTUSERY.P.O,TRICHUR DISTRICT, PIN-680306.
BY ADVS.
S.KARTHIKA
SMT.PREETHY KARUNAKARAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,HOME
DEPARTMENT, THIRUVANANTHAPURAM-695001.
2 DISTRICT COLLECTOR,
COLLECTORATE,THRISSUR-680001.
3 NENMANIKKARA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
PALIYEKKARA,CHITTISSERY.P.O,THRISSUR DISTRICT,PIN-
680301.
4 THE VICAR,
INFANT JESUS PARISH CHURCH, THALORE,THRISSUR,PIN-
680306.
5 CMI INFANT JESUS MONASTERY
REPRESENTED BY PRIOR, THALORE, THRISSUR, PIN - 680
306
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
4
6 ARCHBISHOP
THRISSUR ARCH DIOCESE, CATHOLIC BISHOPS HOUSE,
P.B.NO.706, THRISSUR - 680 005.
BY ADVS.
SMT.K.R.DEEPA, SPL.GOVT.PLEADER (LSGD)
SRI.C.HARIKUMAR
SRI KURIAN GEORGE KANNANTHANAM (SR.)
SRI.LINDONS C.DAVIS
SRI NIRMAL.S(B/O)
SRI.RENJITH RAJAPPAN
SRI RAJITH DAVIS
SRI PRASAD CHANDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.07.2024, ALONG WITH WP(C)NOS.7745/2020 AND 2712/2021, THE
COURT ON 19.7.2024 DELIVERED THE FOLLOWING:
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
WP(C) NO. 2712 OF 2021
PETITIONERS:
1 VISWAMBARAN
S/O SANKUNNY, PAMPUMKADAN HOUSE, THALORE P.O,
THRISSUR-680 306.
2 CHANDRAN,
S/O VELAYUDHAN, PAMPUMKADAN HOUSE, THALORE P.O,
THRISSUR-680 306.
BY ADVS. SMT.V.P.SEEMANDINI (SR.)
SRI M.R.ANISON
SMT.V.BHARGAVI (PANANGAD)
SMT.P.A.RINUSA
RESPONDENTS:
1 STATE OF KERALA
REP BY ITS SECRETARY TO GOVT, LOCAL SELF GOVERNMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695
001.
2 THE SECRETARY,
NENMANIKKARA GRAMA PANCHAYAT, CHITTISSERY
P.O.PALIYEKKARA, THRISSUR DISTRICT-680 005.
3 THE VICAR,
INFANT JESUS CHURCH, THALORE, THRISSUR DISTRICT-680
306.
BY ADVS.
SMT.K.R.DEEPA, SPL.GOVT.PLEADER (LSGD)
SHRI.C.HARIKUMAR, SC, NENMANIKKARA GRAMA PANCHAYATH
SRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.RENJITH RAJAPPAN
SHRI.ANAND GOKULDAS
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 12.07.2024, ALONG WITH WP(C)Nos.7745/2020 AND
7787/2020, THE COURT ON 19.7.2024 DELIVERED THE
FOLLOWING:
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
6
T.R. RAVI, J.
--------------------------------------------
W.P.(C)Nos.7745 of 2020,
7787 of 2020 & 2712 of 2021
--------------------------------------------
Dated this the 19th day of July, 2024
JUDGMENT
These three writ petitions challenge the permission granted by the Government for the construction of a new church and the building permit issued by the Local Self Government Institution for the construction of the church. Since the issues involved in these cases are similar and overlapping, they are being heard and disposed of together.
WP(C)Nos.7745/2020 & 2712/2021
2. The petitioners in these two writ petitions are the same persons. They claim to be owners of properties adjacent to the properties of the 3rd respondent (hereinafter referred to as 'the Vicar'). According to the petitioners, the parishioners of the locality from time immemorial were offering prayers in a Monastery Church situated on more than 25 acres of property owned by the Carmelites of Mary Immaculate (CMI). In the year 2009, a decision was taken by the Thrissur Arch Diocese to WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 7 establish a new church in that locality. By Ext.P1 order produced in WP(C)No.7745 of 2020, the District Collector granted permission for the construction of a new church in Sy.No.559/5 in Edakuny Village. The parishioners were also permitted to offer prayers in the existing Monastery Church of CMI. The petitioner submits that the two churches are situated within a 500 meter radius of the petitioners' properties.
3. In the year 2009, the Vicar purchased 1.3506 hectares (333.702 cents) of property comprised in Sy.Nos.601/2, 602/2, 609/2, 603/2, and 610/1 of Thrikkur Village, lying adjacent to the petitioners' property. After obtaining provisional affiliation from the CBSE on 29.9.2016, a school named Jesus Academic School, Thalore, was established on the property. The approved plan of the school and the provisional affiliation order dated 29.9.2016 have been produced as Exts.P3 and P4 in WP(C)No.7745 of 2020. The petitioners submit that as per the affiliation bye-law of the CBSE, a minimum extent of 2 Acres is required for establishing a CBSE school. Ext.P4 order would show that the facilities reported at the time of the last inspection included an area of 10066 SQ.M., equivalent to 248.73 cents for the school campus, and 5000 SQ.M. area for the playground (equivalent to 123.55 cents). The WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 8 petitioners submit that the school and the Laverna Convent, Thalore belonging to the Franciscan Sisters of Sacred Heart, are functioning in the 333.655 cents owned by the Vicar. It is contended that out of the said total extent, 53 cents comprised in Sy.No.602/9 of Thalore Village is paddy land as evidenced by the data bank and revenue records. It is hence contended that the extent of land available with the Vicar and the details provided for getting CBSE affiliation do not tally.
4. Another contention is that as per Rule 7(8A) of the Kerala Panchayat Building Rules, 2011 ('KPBR 2011' for short) and clause 23 of the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005 (Manual for short), prior permission from the District Collector is necessary for the construction of a religious place. The petitioners had submitted a complaint before the Revenue Divisional Officer, Thrissur, who had, on 1.11.2012, directed the Vicar to stop the functioning of the church on the property adjacent to that of the petitioners. The petitioners approached this Court by filling WP(C)No.992 of 2013. The Vicar also filed WP(C) No.15308 of 2013 challenging the order dated 1.11.2012 issued by the Revenue Divisional Officer. By a common judgment WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 9 dated 20.6.2014, the writ petition filed by the Vicar was allowed and the writ petition filed by the petitioners was dismissed. Exhibit P5 in WP(C)No.7745 of 2020 is a copy of the judgment. Exhibit P5 was challenged by the petitioners in W.A.Nos.1306 of 2014 and 1263 of 2014. Meanwhile, the Vicar filed an application before the District Collector for permission to conduct prayer in the property comprised in Sy.No.602/2 603/2 and 610/1 of the Thrikkur Village. The request made by the Vicar was granted by Ext.P6 order dated 12.4.2014 produced in WP(C)No. 7745 of 2020. Ext.P6 order was challenged by the petitioners by filing WP(C)No.11702 of 2014. Pending the writ petition, the Division Bench disposed of W.A.Nos.1306 and 1403 of 2014, by a common judgment dated 8.10.2018, permitting the petitioners to agitate the issue raised in those appeals in WP(C)No.11702 of 2014 and leaving open all the contentions. A copy of the judgment is produced as Ext.P7 in WP(C)No.7745 of 2020. The petitioners submit that on the strength of Ext.P6 permission, the Vicar submitted Ext.P8 undertaking not to use the property for religious purposes, and started offering prayers in a semi-constructed residential house on the property. The 2nd petitioner, along with a neighbour, filed O.S.No. 957 of 2016 before the Munsiff Court, Irinjalakuda, WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 10 challenging the action of the Vicar. The Munsiff Court issued an interim order of injunction restraining the offering of prayers, a copy of which has been produced as Ext.P9 in WP(C)No.7745 of 2020.
5. The Vicar had applied to the District Collector, under Rules 5(8A) and 7(8A) of the KPBR 2011, seeking prior permission for the construction of a new church in the property adjacent to that of the petitioners. By Ext.P10 order dated 4.7.2019, produced in WP(C)No.7745 of 2020, the District Collector rejected the application. The Vicar challenged the order of the District Collector before the Additional Chief Secretary, Home Department, by filing Ext.P11 appeal. The petitioners contended before the Additional Chief Secretary that there is no statutory provision that provides for an appeal against the Ext.P10 order. A copy of the argument notes submitted by the Vicar has been produced as Ext.P12.
6. Meanwhile the Kerala Panchayat Building Rules, 2019 (KPBR 2019), superseding KPBR 2011, came into force with effect from 8.11.2019. On 17.1.2020, the Government issued orders permitting the Vicar to construct a new church and a consequential order was issued by the District Collector on 25.2.2020. The orders WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 11 dated 17.1.2020 and 25.1.2020 have been produced as Exts.P13 and P14 in WP(C)No.7745 of 2020. While so, WP(C)No.11702 of 2014 challenging Ext.P6 order, was dismissed by this Court by Ext.P15 judgment dated 30.1.2020. Challenging Exts.P13 and P14 issued by the Government and the District Collector, the petitioners have filed WP(C)No.7745 of 2020.
7. Pending the above writ petition, the Vicar obtained a building permit on 13.3.2020 for constructing a church. The copy of the building permit has been produced as Ext.P5 in WP(C)No. 2712 of 2021. The petitioners submit that Ext.P5 would show that the Vicar had offered the entire extent of 135.06 Ares (333.568 cents) of property for the construction of the Church as well. It is submitted that the school is in the said property and an extent of 51.96 cents is a paddy land. It is submitted that the Vicar had not obtained any development permit specifically demarcating the school property and the improvements effected on that property. The petitioners challenged the building permit before the Tribunal for Local Self-Government Institutions in Appeal No.362 of 2020. The Vicar appeared before the Tribunal and filed a counter affidavit. The Tribunal, on 1.2.2020, stayed further proceedings pursuant to Ext.P5 building permit. Later, by order dated WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 12 16.12.2020, the Tribunal dismissed the appeal. The order of the Tribunal, produced as Ext.P9, has been challenged in WP(C)No.2712 of 2021. The Tribunal had also relied on Ext.P10 Circular dated 20.11.2019, issued by the Government clarifying that the KPBR, 2019 would not be applicable to an application submitted for a permit prior to 7.11.2019. The petitioners have also challenged Ext.P10 Circular and Ext.P5 building permit. WP(C)No. 7787 of 2020
8. The petitioners claim to be parishioners of the Infant Jesus Church, Thalore under the Thrissur Diocese. They are challenging the permission granted for the construction of a new church, which, according to them, would entail a financial burden on the petitioners and other members of the parish. The petitioners' case in the writ petition is as follows:
9. The CMI Monastery was established at Thalore in Thrissur District in the year 1924 on a property with an extent of about 25 Acres. The Monastery had a church attached to it. The members of the Christian community in and around the area of Thalore originally belonged to the Ollur and Puthukkad parishes. Since they had to travel a long distance to reach the churches in their respective parishes, they used to attend the church services WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 13 at CMI Monastery Church, Thalore, and obtain all spiritual services from the Monastery. In 1976, a committee was constituted for the formation of the Thalore Church. Taking into consideration the demand of the local residents, the Archbishop of Thrissur and the representatives of the CMI church, agreed to the formation of a full-fledged parish as per the Canon law, at Thalore, and it was decided to name it as "Infant Jesus Thalore". However, it was decided that the properties and the assets would remain with the CMI Monastery. Ext.P1 is the agreement dated 26.6.1976 entered into between the Thrissur Arch Diocese and the CMI Monastery, evidencing the above decision. On 7.1.1977, by Ext.P2 order, the Thrissur Archbishop ordered the establishment of the Thalore Monastery church as the parish church with effect from 23.1.1977. Thereafter, the local residents, along with CMI Monastery, established the parish hall and an office for the priest. A primary school that had been established by the CMI faction in the same compound in the 1950s, was later developed into a Higher Secondary School. Thereafter, a licence was obtained for putting up a cemetery attached to the church, on 15 cents of land lying within the compound. It is stated that in 2007, the Archbishop, who has been impleaded as the 6 th respondent in the writ petition, WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 14 appointed a Commission, for interacting with the parish members and submitting a report. The Commission, by its Ext.P3 report dated 11.8.2021, reported that most of the parish members opined that a new church should be constructed within the compound. It is stated that 18 members opined that a new church should be constructed outside the CMI Monastery compound. Thereafter, by circular dated 31.10.2009, the 6 th respondent declared that the Infant Jesus Parish, Thalore, will be separated from the CMI Monastery church, and directed that until a new church is constructed, the members of the parish should use the chapel attached to the SDV missionaries. A new Vicar was appointed, and arrangements were made for the administration of the new parish. A copy of the circular has been produced as Ext.P4. The petitioners submit that the 6 th respondent has taken the above decision without taking the parishioners into confidence. The petitioners submit that the CMI Monastery church at Thalore has been treated as their parish church for more than half a century.
10. In 2010, the 6th respondent purchased an extent of 3.33 Acres in Sy.N0.602/2, 603/2, 610/1, and 609 in Thrikkur Village near the CMI Monastery church. A Higher Secondary WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 15 School with temporary affiliation with CBSE was started on the property. In 2012, the Vicar started conducting religious services in a temporary shed situated on the property. Since no permission had been obtained, the neighbours challenged the action before the Revenue Divisional Officer. The facts that have already been stated in WP(C)No.7745 of 2020 have been reiterated in this writ petition also. It is stated that when the Vicar denied certain church services to some of the members of the parish, O.S.No.3186 of 2015 was filed by the 2 nd petitioner and his wife seeking an injunction restraining the 4 th respondent from obstructing the marriage ceremony of his daughter. An interim order was issued by the civil court. The writ petition has been filed challenging the order dated 17.1.2020 issued by the State Government permitting the construction of the new church and Ext.P12 order issued by the District Collector consequent to Ext.P10 order. Exts.P10 and P12 are the same orders produced as Exts.P13 and P14 in WP(C)No. 7745 of 2020.
11. The Vicar has filed a counter affidavit in WP(C)No.7745 of 2020. It is stated in the counter affidavit that the Ext.P4 provisional affiliation certificate would show that the extent of the entire school campus, including a total built-up area of 292.8 WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 16 SQ.M. and a 5000 SQ.M playground, is 10066 SQ.M. It is submitted that the descriptions, such as classrooms, laboratories, etc., are part of the total building, having a built-up area of 292.8 SQ.M. It is stated that the averments to the contrary, made by the petitioners, is misleading. It is further submitted that even though the total area of the school campus is 10066 sqm, the church is using only less than 8000 SQ.M. in 1.97 Acres, and the remaining property is kept vacant. It is further contended that the allegation that Laverna convent is situated in 15 cents of property is not correct. It is stated that no building has been constructed on the property for starting Laverna Convent, and a part of the school building, which is used as a hostel facility for teaching staff, is being used by the Laverna Convent. Regarding 52 cents of property in Sy.No.609/12, it is stated that the Vicar is not in possession of any paddy land. It is stated that 22.75 Acres in Sy.No.609/2 is a garden land that had been converted prior to 20 years, as can be seen from Ext.R3(a) draft data bank. It is also stated that there is no construction on the said property, as can be seen from the layout approval as well as the plan attached to the building permit. According to the Vicar, the said property has been kept vacant for the children of the school to teach them about WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 17 cultivation. It is further submitted that O.S.No.957 of 2016 before the Principal Munsiff Court, Irinjalakuda was dismissed on 22.12.2020 with costs, against which the plaintiffs in the suit had preferred an appeal which is pending as A.S.No.10 of 2021 before the Additional Sub Court, Irinjalakuda. Ext.R3(b) produced along with the counter affidavit is the judgment in OS No.957/2016. The church has produced Ext.R3(d), which is the approved layout for the church building as well as the existing school buildings approved by the DTP by order dated 15.11.2018. It was after Ext.R3(d) approval that the Panchayat had issued the building permit for the construction of the church building. It is stated that the site plan is part and parcel of the building permit and is not a separate document and the said plan prescribes the requirements for construction of the church building. It is hence submitted that the construction is in accordance with the Rules. It is submitted that the Government order directing to grant permission for the construction of the church, is in accordance with the objective of the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005, and is only to secure communal harmony. It is submitted that the enquiry for the above purpose does not extend to an enquiry regarding the WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 18 title and interest of/over the property where the construction is proposed. It is contended that the power available to the District Collector is a delegated power, and if the delegate goes beyond his power and passes an order, the only remedy can be before the original authority, which is the Government. It is hence submitted that there is nothing wrong with the Government interfering with the order of the District Collector. It is pointed out that the reasons stated in the Ext.P10 order were not relevant for considering whether there is a possibility for communal disharmony. The conclusion that, as the Church authorities have failed to settle the disputes among the parishioners, the grant of permission by the district authorities would lead to communal disharmony and sectarianism was totally unwarranted; is the submission.
12. The Vicar has filed a counter affidavit in WP(C)No.2712 of 2021. It is contended that there is no bonafides in filing the writ petition. The details regarding the extent of land used for the building and proposed to be used for the church have been stated in the counter affidavit filed in WP(C)No.7745 of 2020. It is pointed out that litigations between petitioners and the church had started way back in 2012 when a temporary shed was put up. In WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 19 the common judgment dated 20.6.2014 in WP(C)No.15308 of 2013 and 992 of 2013, this Court had already held that the church is entitled to conduct prayers in the open shed in Sy.Nos.603/2, 602/2, and 601/2 in a peaceful manner without causing disturbance to the public by using loudspeakers or causing traffic blocks in the nearby road. It is stated in the judgment that it is open to the Vicar to seek permission from the district authorities if they intend to construct the church. It was thereafter that permission was obtained for the construction of the church. It is also pointed out that the suit before the Muniff Court, Irinjalakuda was dismissed. Reliance is placed on the judgment in Fr. Geevarghese Pallippattil & Ors. V. District Collector, Idukki & Ors. [2014 4 KLT 583] to submit that the District Collector cannot refuse permission for the construction of a building for a religious purpose on the reason of any dispute regarding title, interest, or management of the property as the enquiry under the manual is not directed against such aspects. It is also submitted that the construction was already started and is midway, and the pendency of the writ petition is affecting the construction, causing severe damages.
13. The Panchayat has filed a counter affidavit in WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 20 WP(C)No.2712 of 2021 stating that the permissions granted are in accordance with law and all the provisions of the KPBR have been complied with. The State has also filed a counter affidavit. It is pointed out in the counter affidavit that the petitioners had earlier challenged the permission granted by the District Collector to start a church for conducting prayers in the premises of the daycare center, and the said writ petition had been dismissed since the parishioners were conducting prayers in a peaceful manner.
14. Heard Smt.V.P. Seemandini, Senior Advocate, instructed by Sri M.R. Anison, for the petitioners in W.P.(C)Nos.7745 of 2020 & 2712 of 2021, Smt. S.Karthika, for the petitioners in W.P. (C)No.7787 of 2020, Sri Kurian George Kannanthanam, Senior Advocate, instructed by Sri Lindons C.Davis, for respondents 3 and 4 in W.P.(C)No.7745 of 2020 and for respondents 4 and 6 in W,P. (C)No.7787 of 2020, Sri P.B.Krishnan, Senior Advocate, instructed by Sri P.B.Subramanyan for the 3 rd respondent in W.P.(C)No.2712 of 2021, Sri C.Harikumar, Standing Counsel for the Panchayat, Sri S.Nirmal, Standing Counsel for CBSE and Smt.K.R.Deepa, Special Government Pleader, on behalf of the official respondents/State.
WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 21
15. The questions that arise for consideration are the following;
1. Whether any power was available to the Gov- ernment to interfere with the decision of the District Collector under Rules 5(8A) and 7(8A) of the KPBR, 2011?
2. Whether the order dated 17.1.2020, Ext.P13 in WP(C)No.7745 of 2020 is otherwise sustainable in law assuming that there is a power available to en- tertain an appeal against the order of the District Collector?
3. Whether the order of the Tribunal for Local Self Government Institutions is liable to be interfered with?
4. Whether the circular dated 20.11.2019 issued by the State is violative of the provisions of the KPBR?
16. The issues raised in these writ petitions have become academic. On 28.6.2021, the Government brought in amendments to the Kerala Panchayat Building Rules and the Kerala Municipality Building Rules. Rule 5(4) of the KPBR Rules, says that prior to the grant of a building permit, the Secretary shall require the production of NOCs from various officers/authorities, depending on the nature of the construction. Earlier, for the purpose of construction of buildings for religious purposes or worship, there was the requirement of getting NOC from the District Collector. By the amendment, the NOC from the Panchayat is to be obtained instead of the NOC from the District Collector. Thus, as per the WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 22 amended provision, the requirement for the Secretary of the Panchayat or the applicant to obtain a No Objection Certificate from the District Collector before applying for a permit for constructing buildings for religious purposes has been taken away.
17. This Court had the occasion to consider a challenge to the amendments to the KPBR 2019, in W.P.(C)No.11776 of 2021. After a detailed consideration of the constitutional provisions and the amended Rules, this Court held that the challenge against the amendments will not lie. In view of the said judgment, even if this Court were to interfere with the impugned order and circular, the matter cannot be relegated back to the District Collector for consideration, since any consideration under Rule 5(4) of the KPBR, after the coming into force of the amendment, can be done only by the Panchayat. In the case on hand, the Panchayat has granted a building permit based on the impugned order by which the Government granted permission for the construction of the church. Faced with this situation, the counsel for the petitioners submitted that there has been no consideration by the Panchayat in terms of the amended Rule 5(4), and the Panchayat has issued a building permit based on the order of the Government. It is submitted that a fresh consideration at the hands of the Panchayat WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 23 was warranted.
18. The application for a building permit was submitted on 17.01.2017. At that point in time, the KPBR 2011 was in force. The District Town Planner had granted NOC on 15.11.2018 and the Fire and Rescue Department had given NOC on 30.03.2019. While so, the KPBR, 2019 came into force with effect from 18.11.2019, replacing the earlier 2011 Rules. In both the Rules, there was a requirement for getting prior sanction from the District Collector while constructing a building for religious purposes or worship. The District Collector had rejected the application filed for sanction. The Vicar had taken up the issue before the Government and on 17.01.2020, the Government issued orders directing the District Collector to issue NOC for constructing a permanent Church. The said order has been challenged by the petitioners in these writ petitions. Consequent to the order of the Government, the District Collector issued an NOC on 25.02.2020. Based on the permission granted by the District Collector, a building permit was issued on 13.03.2020 by the Panchayat. The question is whether the issuance of the Government Order and the consequential grant of the building permit are liable to be interfered with by this Court in the exercise of the extraordinary jurisdiction under Article 226 of WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 24 the Constitution of India.
19. The counsel for the petitioners relied on the judgment of a Division Bench judgment of this Court in Asset Homes (P) Ltd. v. State of Kerala [2011 (2) KLT 1], wherein this Court had held that an application for a building permit is to be decided in accordance with the law that was prevailing on the date of sanctioning of the permit and not in accordance with the law which is prevailing on the date of submission of the application. The reasoning of this Court was that until the plan is approved and a permit is issued, no vested right accrues in favour of an applicant. The Court hence held that the Rule that was in force on the date when the application was considered and ordered is the relevant rule. Going by the said dictum, though the application, in this case, had been filed when the 2011 Rules were in force, what would be applicable is the KPBR, 2019, since the consideration was in March 2020.
20. Prior to the amendment whereby the prior sanction of the District Collector is done away with, a question would have arisen as to which of the orders of the District Collector, regarding sanction, should be considered by the Secretary of the Panchayat while granting the building permit. If it is held that the WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 25 Government did not have the power to sit in appeal over the order of the District Collector, it would mean that an erroneous refusal by the District Collector would become final, and the applicant for the building permit would be rendered without a remedy, except possibly in the form of a writ petition under Article 226 of the Constitution of India. The very purpose of vesting the District Collector with a duty to consider whether sanction can be granted for the construction is to ensure communal harmony, as can be seen from the requirements of the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony. Necessarily, the consideration also is to be with the above purpose in mind. In the case on hand, the District Collector, while refusing sanction, has stated reasons that were not relevant or germane. One of the reasons stated is that sectarianism would be developed within the community. That is not the reason contemplated. Another aspect considered is the prior conduct of the Vicar, which also is not relevant. The only reason stated regarding the possibility of communal disharmony is that a suit has been filed by believers in the Hindu religion, and even though an attempt was made to arrive at a consensus, that could not be done. The said suit has been dismissed by the civil court as is WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 26 evident from the records.
21. It is in these circumstances that the Government has issued orders directing the District Collector to issue fresh orders. The Government order says that the District Collector is to issue orders on the condition that the applicants obtain a building permit from the concerned Local Self Government Institution, that the building construction is in accordance with the rules, that no loudspeakers shall be allowed, except on the annual functions and certain specified dates and that even for the user of loudspeakers on such dates, permission should be obtained from the concerned Police Officers. It was thereafter that the District Collector issued orders on 25.02.2020 granting permission. The order granting permission was the basis for the issuance of the building permit on 13.03.2020. If this Court were to set aside the Government Order, finding that the Government did not have any power to interfere with the order refusing permission issued by the District Collector, the necessary corollary is that the subsequent order of the District Collector dated 25.02.2020 and the building permit granted on 13.03.2020 would also stand nullified. The question, then, is whether such a course of action is required in the circumstances of the case.
WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 27
22. As already noted above, the District Collector had initially considered factors that were not germane or relevant and refused to grant permission for the construction of the Church. Holding that the impugned order of the Government was bad for want of authority would mean a revival of the order dated 04.07.2019 issued by the District Collector. That is to say, the correction of the alleged illegality in the impugned order would result in the restoration of a wrong order. If, in the exercise of the power under Article 226, the order dated 04.07.2019 issued by the District Collector is set aside by this Court, the matter would necessarily have to be relegated back to the authority that issued the order. As the law stands now, the District Collector no longer can consider this issue. The power is available only to the Panchayat. In effect, any interference would result in the issuance of a futile writ.
23. In view of the amendment to Rule 5 (4) and the judgment of this Court in W.P.(C) No.11776 of 2021, the No Objection Certificate is to be issued by the Panchayat. It is based on such a No Objection Certificate that the Secretary has to consider the issuance of a building permit. No purpose will be served by relegating the matter to the Panchayat over again, to WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 28 decide whether sanction should be granted and directing the Secretary to reconsider the grant of a building permit based on the decision of the Panchayat. On the facts of this case, I do not think such a course of action is called for. This Court is of the considered opinion that these writ petitions are not the fit cases where this Court should be exercising its writ jurisdiction under Article 226 merely because it is legal to do so. The discretion under Article 226 shall not be exercised in cases where no purpose will be served by interfering with the impugned orders. I do not find anything unreasonable or illegal in the directions issued by the Government, correcting a mistake that was inherent in the order dated 04.07.2019 or in the subsequent order issued by the District Collector on 25.02.2020, granting conditional permission to construct the Church.
In the above circumstances, these writ petitions fail and are dismissed.
Sd/-
T.R. RAVI JUDGE dsn WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 29 APPENDIX OF WP(C) 7745/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 26.07.2010 OBTAINED BY THE 3RD RESPONDENT FROM THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE LETTER DATED 01.10.2013 PUBLISHED BY THE 4TH RESPONDENT IN A BULLETIN EXHIBIT P3 TRUE COPY OF THE APPROVED PLAN ORDER DATED 26.07.2010 ISSUED BY THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE PROVISIONAL AFFILIATION ORDER DATED 29.09.2016 ISSUED BY THE 5TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE COMMON JUDGMENT DATED 20.06.2014 IN WP(C)NO.992/2013 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 12.04.2014 ISSUED BY THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE COMMON JUDGMENT DATED 08.10.2018 IN WA NOS.1306/2014 AND 1463/2014 EXHIBIT P8 TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 6TH RESPONDENT EXHIBIT P9 TRUE COPY OF THE INJUNCTION ORDER DATED 28.03.2016 IN IA NO.1776/2016 IN O.S NO.957/2016 EXHIBIT P10 TRUE COPY OF THE ORDER DATED 04.07.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P11 TRUE COPY OF THE APPEAL DATED 30.07.2019 SUBMITTED BY THE 3RD RESPONDENT EXHIBIT P12 TRUE COPY OF THE ARGUMENT NOTE DATED 12.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1T RESPONDENT EXHIBIT P13 TRUE COPY OF THE ORDER DATED 17.01.2020 ISSUED BY THE 1ST RESPONDENT EXHIBIT P14 TRUE COPY OF THE ORDER DATED 25.02.2020 ISSUED BY THE 2ND RESPONDENT WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 30 EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 30.01.2020 IN WP(C)NO.11702/2014 EXHIBIT P16 TRUE COPY OF THE WEB SITE OF THE 4TH RESPONDENT RESPONDENT EXHIBITS Exhibit R3(a) TRUE COPY OF DRAFT DATA BANK ISSUED BY AGRICULTURAL OFFICER.
Exhibit R3(b) TRUE COPY OF JUDGMENT DATED 22/12/2020 IN OS.957/2016 ON THE COURT FILE OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA.
Exhibit R3(c) TRUE COPY OF THE ORDER DATED 16/12/2020 IN APPEAL 362/2020 ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM.
Exhibit R3(d) TRUE COPY ORDER NO.C1/2442.18 DDIS DATED
15/11/2018 DISTRICT TOWN PLANNING
AUTHORITY.
Exhibit R3(e) TRUE COPY OF BUILDING PERMIT DATED
13/03/2020 ISSUED BY 6TH RESPONDENT.
Exhibit R3(f) TRUE COPY OF GOVT. CIRCULAR
201/R.D1/2019/LSGD, DATED 20/11/2019
ISSUED BY 1ST RESPONDENT.
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
31
APPENDIX OF WP(C) 7787/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DECISIONS TAKEN AT THE
MEETING HELD ON 26.6.1976 BETWEEN THE
REPRESENTATIVES OF RESPONDENTS 4 AND 6
AND RESIDENTS OF THALORE PARISH.
EXHIBIT P2 TRUE COPY OF THE ORDER BEARING
NO.DL1/77, 07.01.1977 ISSUED BY THE 6TH
RESPONDENT
EXHIBIT P3 TRUE COPY OF THE THALORE EDAVAKA
COMMISSION REPORT SUBMITTED PURSUANT TO ORDER DATED 11.08.2007 OF THE 6TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 31.10.2009 ISSUED BY THE 6TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 08.04.2011 IN O.P(C)NO.1198/2011 PASSED BY THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 19.08.2015 IN I.A.NO.6517/2015 IN O.S.NO.3186/2015 ON THE FILES OF ADDITIONAL MUNSIFF COURT,IRINJALAKUDA.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 04.07.2019
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P8 TRUE COPY OF THE REQUEST DATED
17.10.2019 BY THE 2ND RESPONDENT SOIN
BEFORE THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE OBJECTION DATED
12.11.2019 FILED BY 1ST PETITIONER
BEFORE THE 1ST RESPONDENT
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 17.01.2020
ISSUED BY THE 1ST RESPONDENT
EXHIBIT P11 TRUE COPY OF THE CIRCULAR DATED FEBRUARY
2020 ISSUED BY THE 4TH RESPONDENT
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 25.02.2020
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE PRINT OUT OF
INFORMATION AVAILABLE IN THE WEBSITE OF
ARCHDIOCESE OF THRISSUR UNDER THE 6TH
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
32
RESPONDENT.
Exhibit P14 TRUE COPY OF THE PHOTOGRAPH SHOWING
ADDITIONAL CONSTRUCTION CARRIED OUT BY
THE 4TH RESPONDENT .
Exhibit P15 TRUE COPY OF THE PHOTOGRAPH SHOWING
ADDITIONAL CONSTRUCTION CARRIED OUT BY
THE 4TH RESPONDENT .
RESPONDENT EXHIBITS
EXHIBIT R4(A): TRUE COPY OF THE ORDER NO.C1/2442/18
DDIS DATED 15.11.2018.
EXHIBIT R4(B): TRUE COPY OF THE DRAFT DATA BANK ISSUED
BY THE AGRICULTURAL OFFICER.
EXHIBIT R4(C): TRUE COPY OF THE BUILDING PERMIT NO.A-
258/2017/PMT/36/19-20 DATED 13.03.2020 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT R4(D): TRUE COPY OF THE JUDGMENT DATED 22.12.2020 IN OS 957/2016 ON THE COURT FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA.
EXHIBIT R4(E): TRUE COPY OF THE ORDER DATED 16.12.2020
IN APPEAL NO.362/2020 BY LOCAL SELF
GOVERNMENT INSTITUTIONS TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT R4(F): TRUE COPY OF THE CIRCULAR
NO.201/R.D1/2019/LSG(R.D) DEPARTMENT,
THIRUVANANTHAPURAM DATED 20.11.2019.
Exhibit R4(G) A COPY OF THE APPLICATION DATED
11.02.2023 OF THE 4TH RESPONDENT FOR
EXTENSION OF THE BUILDING PERMIT.
Exhibit R4(H) A COPY OF THE JUDGMENT IN WPC
NO.11776/2021 DATED 20.05.2024 OF THE
HON'BLE HIGH COURT OF KERALA.
Exhibit R 1(a) True copy of the photograph showing the
present condition of the building.
Exhibit R1(b) True copy of the photograph showing the
present condition of the building
EXHIBIT R3(A) TRUE COPY OF THE DRAFT DATA BANK ISSUED
BY AGRICULTURAL OFFICER
EXHIBIT R3(B) TRUE COPY OF THE COMMON JUDGMENT DATED
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
33
20.06.2014 IN WP (C) 15308 OF 2013 AND
WP(C) 992 OF 2013
EXHIBIT R3(C) TRUE COPY OF THE ORDER DATED 12.04.2014
ISSUED BY THE DISTRICT COLLECTOR,
THRISSUR
EXHIBIT R3(D) TRUE COPY OF THE JUDGMENT DATED
22.12.2020 IN OS NO. 957 OF 2016 ON THE
FILE OF THE PRINCIPAL MUNSIFF COURT,
IRINJALAKUDA
EXHIBIT R3(E) TRUE COPY OF G.O.NO.155/2020 DATED
17.01.2020
WP(C)Nos.7745/2020,
7787/2020 & 2712/2021
34
APPENDIX OF WP(C) 2712/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF PROVISIONAL AFFILIATION ORDER
DATED 29.9.2016 ISSUED BY THE CENTRAL BOARD OF SECONDARY EDUCATION EXHIBIT P2 TRUE COPY OF THE APPROVED BUILDING PLAN EXHIBIT P3 TRUE COPY OF THE ORDER BEARING NO DCTSR/6421/2018/CB DATED 25.2.2020 ISSUED BY THE DISTRICT COLLECTOR, THRISSUR EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 30.1.2020 IN WPC NO 11702/2014 EXHIBIT P5 TRUE COPY OF THE BUILDING PERMIT DATED 13.3.2020 ISSUED BY THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF APPEAL MEMORANDUM SUBMITTED BY THE PETITIONERS BEFORE THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVT INSTITUTIONS, THIRUVANANTHAPURAM DATED 22.8.2020 EXHIBIT P7 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT DATED NIL NOVEMBER 2020 EXHIBIT P8 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED NIL NOVEMBER 2020 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 16.12.2020 IN APPEAL NO 362/2020 ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVT INSTITUTIONS, THIRUVANANTHAPURAM EXHIBIT P10 TRUE COPY OF THE CIRCULAR BEARING NO 201/R.D 1/2019/LSGD DATED 20.11.2019 ISSUED BY THE 1ST RESPONDENT Exhibit P11 TRUE COPY OF THE WEBSITE INFORMATION OF THE 4TH RESPONDENT RESPONDENTS' EXTS:
EXHIBIT R3(A) TRUE COPY OF THE DRAFT DATA BANK ISSUED BY AGRICULTURAL OFFICER EXHIBIT R3(B) TRUE COPY OF THE COMMON JUDGMENT DATED 20.06.2014 IN WP (C) 15308 OF 2013 AND WP(C) 992 OF 2013 EXHIBIT R3(C) TRUE COPY OF THE ORDER DATED 12.04.2014 WP(C)Nos.7745/2020, 7787/2020 & 2712/2021 35 ISSUED BY THE DISTRICT COLLECTOR, THRISSUR EXHIBIT R3(D) TRUE COPY OF THE JUDGMENT DATED 22.12.2020 IN OS NO. 957 OF 2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, IRINJALAKUDA EXHIBIT R3(E) TRUE COPY OF G.O.NO.155/2020 DATED 17.01.2020