Kerala High Court
C.K.Ponnappan vs The District Collector on 17 February, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH
MAGHA,1942
WP(C).No.22817 OF 2020(B)
PETITIONER:
C.K.PONNAPPAN, AGED 60 YEARS
S/O.LATE KOCHITTA, CHITTANATHADATHIL HOUSE,
KOOTHATTUKULAM P.O., ERNAKULAM DISTRICT-68662
BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)
RESPONDENT:
1 THE DISTRICT COLLECTOR
OFFICE OF THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANADU,
ERNAKULAM DISTRICT-682030
2 THE REVENUE DIVISIONAL OFFICER
MUVATTUPUZHA, MINI CIVIL STATION,
MUDAVOOR P.O., MUVATTUPUZHA-686669
3 THE VILLAGE OFFICER
VILLAGE OFFICE, PALAKUZHA, PALKUZHA P.O.,
ERNAKULAM DISTRICT-686662
4 PALAKUZHA GRAMA PANCHAYAT
PALAKUZHA P.O.,
ERNAKULAM DISTRICT-686662,
REP. BY ITS SECRETARY
5 THE SECRETARY
PALAKUZHA GRAMA PANCHAYAT,
PALAKUZHA P.O., ERNAKULAM DISTRICT-686662
W.P.(C) No.22817 of 2020 ..2..
6 M.N.SASIDHARAN
METTUMPURAM HOUSE, KOOTHATTUKULAM P.O.,
ERNAKULAM DISTRICT-686662
R1 BY GOVERNMENT PLEADER SRI. K.J. MANURAJ
R4-5 BY SHRI.GIGIMON ISSAC, SC, PALAKUZHA
GRAMA PANCHAYAT
R6 BY ADV. SRI.P.FAZIL
R6 BY ADV. SRI.V.S.SREEJITH
R6 BY ADV. SMT.JAYASREE MANOJ
R6 BY ADV. SRI.SAJU THALIATH
R6 BY ADV. SRI.JITHIN PAUL VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 17.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.22817 of 2020 ..3..
P.B.SURESH KUMAR, J.
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W.P.(C) No.22817 of 2020
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Dated this the 17th day of February, 2021
JUDGMENT
Petitioner is stated to be a member of one of the families which formed a body called "Sree Narayana Bhajana Samajam"
(Bhajana Samajam) at Palakuzha near Muvattupuzha. The Bhajana Samajam owns an item of land and there exists a temple in the said land. It is stated that a branch of Sree Narayana Dharama Paripalana Yogam (SNDP) owns a land near the land of the Bhajana Samajam and there exists a statue of Sree Narayana Guru since 2008. It is alleged by the petitioner that some intruders have now taken over the administration of the Bhajana Samajam and they have attempted to erect a statue of Sree Naryana Guru in the land owned by the Bhajana Samajam also. As the construction undertaken by the Bhajana Samajam for the said purpose was unauthorized, at the instance of the District Collector, the Tahsildar, W.P.(C) No.22817 of 2020 ..4..
Muvattupuzha interdicted the said construction. Ext.P2 is the prohibitory order issued by the Tahsildar in this regard. The petitioner preferred a complaint later to the District Collector pointing out that the construction made by the Bhajana Samajam is one intended for religious worship and that the permission required to be obtained from the District Collector for the said purpose has not been obtained. In the meanwhile, one C.P.Sathyan requested the District Collector to vacate Ext.P2 prohibitory order. The District Collector considered the request of C.P.Sathyan and the complaint of the petitioner together and required the Revenue Divisional Officer and the police official concerned to submit reports on the complaint. Pursuant to the said direction, the Revenue Divisional Officer reported that the construction undertaken by the Bhajana Samajam is unauthorised; that an application has already been filed by the sixth respondent on behalf of the Bhajana Samajam for regularization of the construction before the Palakuzha Grama Panchayat and since satisfactory evidence establishing the title of the applicant was not made available, the application was not processed. The police reported that there exists some dispute in the locality concerning the erection of the statue of Sree Narayana Guru W.P.(C) No.22817 of 2020 ..5..
in the premises of the Bhajana Samajam and that there will be law and order issues in the area, if permission is accorded to the Bhajana Samajam to erect the statue.
2. The District Collector took the view that his permission should have been obtained by the Bhajana Samajam for the purpose of constructing the structure proposed by them and consequently, directed the Village Officer concerned to furnish the particulars of the ownership of the land to the Secretary of the Panchayat, and directed the Secretary of the Panchayat to forward the application for regularization preferred by the sixth respondent for further orders under Rule 7(8) of the Kerala Panchayat Building Rules, 2011 and directed further that there shall not be any further construction until a decision is taken in this regard by the District Collector. Ext.P5 is the order issued by the District Collector in this regard. Ext.P5 is under challenge in the writ petition.
3. Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned counsel for the sixth respondent.
4. The learned counsel for the petitioner contended that Ext.P5 order has been issued by the District Collector with a W.P.(C) No.22817 of 2020 ..6..
view to regularize the unauthorized construction made by the Bhajana Samajam and that the District Collector is not empowered to regularize an unauthorized construction. It was also pointed out that structures to be used as places of worship are to be constructed after obtaining permission of the District Collector under Rule 7(8) of the Kerala Panchayat Building Rules, 2011 and the said permission cannot be obtained after the construction.
5. Per contra, the learned counsel for the sixth respondent submitted that Ext.P5 order was not one passed by the District Collector with a view to regularize the unauthorised construction made by the Bhajana Samajam and the same was issued on the premise that the question whether the sixth respondent should be granted permission to erect the statue of Sree Narayana Guru is to be considered before the application preferred by the sixth respondent for regularization of the structure is considered by the competent authority. It was pointed out by the learned counsel that it is to enable the District Collector to consider the question whether permission should be granted to the sixth respondent for erecting the statue of Sree Narayan Guru that the District Collector passed Ext.P5 order. It was however pointed out by W.P.(C) No.22817 of 2020 ..7..
the learned counsel for the sixth respondent that Rule 7 of the Kerala Panchayat Building Rules, 2011 has no application to the facts of the case as the sixth respondent proposes to erect only a statue of Sree Narayana Guru and that the statue of Sree Narayana Guru cannot be regarded as a place of religious worship.
6. On a query from the court, the learned counsel for the sixth respondent clarified that application for regularization was preferred by the sixth respondent in accordance with the provisions of the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2018. If that be so, as rightly pointed out by the learned counsel for the petitioner, the District Collector has nothing to do with the regularization of the building sought by the sixth respondent. The competent authority for considering the application for regularization is the Committee constituted under Rule 6(10) of the said Rules.
7. It is however seen that Rule 7 of the Kerala Panchayat Building Rules, 2011 provided that in the case of new construction and reconstruction for religious purposes, prior permission of the District Collector needs to be obtained. The procedure in place for obtaining prior permission of the District W.P.(C) No.22817 of 2020 ..8..
Collector in terms of the said rule was to forward the application for building permit to the District Collector and the application will be allowed, only if the District Collector grants permission. The Kerala Panchayat Building Rules, 2011 has now been substituted by the Kerala Panchayat Building Rules, 2019 and as per the substituted Rules, applications for building permits for construction of buildings for religious purposes can be considered only if the applicant produces No Objection Certificate from the District Collector.
8. If one examines Ext.P5 order in the backdrop of the facts and circumstances stated above, it is clear that the District Collector has directed the Panchayat to forward the application for regularization for the purpose of considering whether the sixth respondent should be granted permission to use the building for religious purpose, and not for considering the application for regularization of the building at all. Of course, the petitioner has a contention that the requirement in the Kerala Panchayat Building Rules, 2011 and the Kerala Panchayat Building Rules, 2019 is to obtain prior permission of the District Collector for the purpose of constructing/reconstructing a building for religious purpose and insofar as the sixth respondent has not obtained prior permission W.P.(C) No.22817 of 2020 ..9..
of the District Collector, the District Collector cannot now exercise the power conferred on him under the Building Rules and therefore, it was unnecessary for the District Collector to call upon the Secretary of the Panchayat to forward the application to him. True, the requirement under the Building Rules is to obtain permission of the District Collector before the construction, if the building is intended to be used for religious purposes. However, in the absence of any prohibition in the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2018 to regularize a building constructed for religious purpose and in the absence of any provision in the said Rules to obtain permission from the District Collector before processing the application for regularization of such buildings, there is nothing illegal in the direction issued by the District Collector to the Panchayat to forward the application preferred by the sixth respondent.
9. In the said view of the matter, I do not find any reason to interfere with Ext.P5 order. At the same time, it is to be clarified that if the Panchayat forwards the application preferred by the sixth respondent for regularization as directed in Ext.P5 order, the District Collector shall consider the question as to whether W.P.(C) No.22817 of 2020 ..10..
permission should be granted to the sixth respondent for establishing a place of religious worship in accordance with law, after affording the petitioner and the sixth respondent an opportunity of hearing. It is also to be clarified that the application for regularization submitted by the sixth respondent shall be forwarded to the competent authority under the Kerala Panchayat Building (Regularization of Unauthorized Construction) Rules, 2018 only if the District Collector grants appropriate clearance for the building to be used as a religious place. It is made clear that the question whether the structure proposed by the Bhajana Samajam is a place of religious worship is a question to be considered by the District Collector when the matter comes before him as directed above.
The writ petition is disposed of with the aforesaid clarifications.
Sd/-
P.B.SURESH KUMAR
JUDGE
ds 12.02.2021
W.P.(C) No.22817 of 2020 ..11..
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE BYE LAW HAVING
REGISTRATION NO.70 OF SRO,
KOOTHATTUKULAM
EXHIBIT P1 (A) A TRUE COPY OF THE TYPED COPY OF THE
EXHIBIT P1
EXHIBIT P2 A TRUE COPY OF THE ORDER NO.F2-3254/16
DATED 17.3.2016 ISSUED BY THE
TAHASILDAR, MUVATTUPUZHA
EXHIBIT P3 A TRUE COPY OF THE LETTER NO.M8-
35634/16 DATED 4.11.2016
EXHIBIT P4 A TRUE COPY OF THE PETITION DATED
12.11.2018 FILED BY THE PETITIONER
BEFORE THE 4RD RESPONDENT
EXHIBIT P5 A TRUE COPY OF THE ORDER NO.D.C.E.K.M-
13574/2018/M7/D.DIS DATED 14.9.2020
EXHIBIT P6 A TRUE COPY OF THE REPLY DATED
15.10.2020 SUBMITTED BEFORE THE 1ST
RESPONDENT.