Kerala High Court
Subramanian vs The District Collector on 25 February, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940
WP(C).No. 1700 of 2015
PETITIONER/S:
SUBRAMANIAN,
AGED 63 YEARS,
S/O.LAKSHMANA MUDALIYAR, 'RAJEEVAM',
AMBALAPARAMBU,MUNDAMUKHA AMSOM, SHORNUR - 679 121.
BY ADV. SRI.R.SREEHARI
RESPONDENT/S:
1 THE DISTRICT COLLECTOR,
CIVIL STATION, PALAKKAD - 678 001.
2 THE TAHSILDAR,
TALUK OFFICE, OTTAPALAM - 679 101.
3 VILLAGE OFFICER,
SHORNUR I VILLAGE, SHORNUR POST - 679 121.
4 SHORNUR MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, MUNICIPAL
OFFICE,SHORNUR - 679 121.
5 SREE MAHAGANAPATHY KSHETRA COMMITTEE
AMBALAPARAMBU REPRESENTED BY ITS PRESIDENTSADU,
S/O.SOMAN, CHATHACHERI PARAMBIL,SHORNUR - 679 121.
6 SREE MAHAGANAPATHY KSHETRA COMMITTEE,
AMBALAPARAMBU, REPRESENTED BY ITS SECRETARY
RAJAMANICKAN, S/O.MANICKA MUDALI, MUDALIYARTHERUVU,
SHORNUR - 679 121.
R1 TO R3 BY SMT.RAJI.T.BHASKAR,GOVERNMENT PLEADER
R5 TO R6 BY SMT.C.SEENA
SRI.P.JAYARAM
R4 BY SRI.P.P.THAJUDEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 1700 of 2015 2
JUDGMENT
This writ petition is filed by the petitioner seeking to quash Ext.P4 order passed by the District Collector, Palakkad, dated 22.12.2014, on account of the directions issued by this court in W.P. (C).No.27560/2014 dated 23.10.2014, holding that no permission is required from the District Collector to carry out construction of a building within the temple compound in accordance with the provisions of Proviso to Rule 7(6B) of the Kerala Municipality Building Rules, 1999, and in accordance with the provisions of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony.
2. Brief material facts for the disposal of the writ petition are as follows:-
3. Petitioner is residing in a building situate in an extent of 9.8 Ares in Sy.Nos.25/15 and 25/14 of Shornur I village. To the northern side of the petitioners residence, situate Sri. Maha Ganapathy Temple, Shornur. When the temple committee started construction of Thidapally (Kitchen), office and hall without obtaining permission from the District WP(C).No. 1700 of 2015 3 Collector. Ext.P2 complaint was filed before the District Collector. Since the same was not considered, petitioner approached this court by filing W.P.(C).No.27560/2014, which was disposed of as per Ext.P3 judgment, directing the 1st respondent to consider the complaint of the petitioner and pass orders after hearing the parties. Accordingly, 1 st respondent heard the matter and by Ext.P4 order dated 22.12.2014, dismissed petitioner's compliant holding that, the construction of Thidapally (Temple Kitchen), office and store are not temple or temple allied construction, but the construction of kitchen, office and store of the temple.
4. According to the petitioner, going by Rule 7(6B), any construction carried out for religious purpose or worship, prior approval or clearance or permission and concurrence of the District Collector is required along with the permission that are required to be taken as per the provisions of the guidelines issued for the purpose.
5. A detailed counter affidavit is filed by the 6 th respondent, ie, the temple committee, refuting the allegations and claims and demands raised by the petitioner and also justifying the stand adopted by WP(C).No. 1700 of 2015 4 the District Collector in Ext.P4. Virtually in the counter affidavit, the 6th respondent is reiterating the decisions taken by the District Collector.
6. I have heard learned counsel for the petitioner, learned Government Pleader and the Standing Counsel appearing for the 4th respondent Municipality and perused the pleadings and the documents on record.
7. The subject issue revolves around the Proviso to Rule 7(6B), which read thus:
7. Application for building permit.
(1)**** (2)**** (3)**** (4)**** (5)**** (6B) In the case of an application to construct or reconstruct a building or make alteration or addition or extension within any Security Zone, the Secretary shall consult the District Collector concerned before permission is granted. The District Collector, after getting the specific recommendations from the Director General of Police, shall furnish his reply. The objection if any raised and/or restriction and/or regulation if any suggested by the District Collector shall be complied by the Secretary while issuing the permit.WP(C).No. 1700 of 2015 5
Provided that in the case of
construction of new building or
reconstruction for religious purpose or
worship, prior approval or clearance or
permission and concurrence as the case may be, of the District Collector concerned shall be obtained and the conditions stipulated in the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony which is in force have to be complied with.
Applications for renovation without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship can be considered by the secretary after informing the District Collector in form in Appendix-N duly filled by the applicant and verified by the secretary. The permit shall be issued only after the concurrence of the District Collector.
8. On an analysis of the proviso, what I could gather is that, any construction or reconstruction for religious purpose, the permission of the District Collector is required. Even assuming that, it is a store or a kitchen for the temple purpose, that becomes a religious activity liable to be taken into account by the District Collector before a permission is granted. I do not think the District Collector WP(C).No. 1700 of 2015 6 has taken into account either the aforesaid provision or the Manual of Guidelines before passing Ext.P4 order. Looking at that view, I am of the considered view that the order suffers from the wise of arbitrariness and illegality, liable to be interfered by this court under Article 226 of the Constitution of India.
9. Therefore, I quash Ext.P4 and direct the District Collector to reconsider the issue after providing an opportunity of hearing to the petitioner as well as the respondents 5 and 6 and attain finality at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment.
10. When this writ petition was admitted to the files of this court, an interim order was granted by this court, which was extended until further order on 04.06.2015. The said order will continue to be in force till such time the decision is taken.
The writ petition is disposed of, accordingly.
Sd/-
SHAJI P.CHALY JUDGE uu 26.02.2019 WP(C).No. 1700 of 2015 7 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOGRAPHS EVIDENCING THE CONSTRUCTION OF THIDAPALLY, OFFICE AND HALL.
EXHIBIT P2 PHOTO COPY OF THE PETITION DT.8.10.2014 FILED BEFORE THE IST RESPONDENT EXHIBIT P3 PHOTO COPY OF JUDGEMENT IN WPC NO.27560/2014 DT.23.10.2014 OF THIS HONOURABLE COURT.
EXHIBIT P4 PHOTO COPY OF THE ORDER DATED 22.12.2014 OF THE IST RESPONDENT RESPONDENT'S EXHIBITS:-
EXHIBIT R6(a) PHOTOGRAPHS OF THE COMPLETED BUILDING.
EXHIBIT R6(b) TRUE COPY OF PLAINT IN O.S. N.49/2007, ON THE FILES OF MUNSIFF'S COURT, OTTAPALAM EXHIBIT R6(c) TRUE COPY OF DECREE DATED 19.8.2013 PASSED BY THE MUNSIFF COURT,OTTAPALAM IN O.S. NO.49/2007 EXHIBIT R6(d) TRUE COPY OF ORDER DATED 24.01.2014 IN I.A. NO.2306/2013, O.S. NO.49/207