IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 20235 OF 2022
PETITIONER/S:
PRABHAKAR ALVA, AGED 70 YEARS
S/O. LATE BANDARI ALVA, RESIDING AT PILIYANDOOR
HOUSE, KAYYAR VILLAGE AND POST, MANJESHWAR
TALUK, KASARAGOD DISTRICT - 671 324.
BY ADVS.
T.MADHU
M.PRADEEP RAO
C.R.SARADAMANI
SHAHID AZEEZ
RESHMA SANTHOSH
RENJISH S. MENON
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
KASARAGOD, CIVIL STATION, VIDYANAGAR, KASARAGOD
DISTRICT - 671 123.
2 THE TAHSILDAR,
MANJESHWAR TALUK, KASARAGOD DISTRICT - 671 322.
3 THE VILLAGE OFFICER,
KAYYAR VILLAGE, KAYYAR P.O., KASARAGOD DISTRICT
- 671 324.
4 THE PAIVALIKE GRAMA PANCHAYAT,
PAIVALIKE P.O., MANJESHWAR TALUK, KASARAGOD
DISTRICT - 671 348., REPRESENTED BY ITS
SECRETARY.
5 SREE DHOOMAVATHY MALARAYA DHARMA CHAVADI SEVA
SAMITHI
REG. NO.KSR/CA/143/2021, A SOCIETY REGISTERED
UNDER THE SOCIETIES REGISTRATION ACT 1860
REPRESENTED BY ITS PRESIDENT ASHOK SHETTY, SON
MAHABALA SHETTY, PILIYANDOOR HOUSE, KAYYAR
VILLAGE AND POST, KASARAGOD DISTRICT - 671 324.
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W.P.(C). No. 20235 of 2022
BY ADVS.
M.SASINDRAN
ATUL SOHAN
VINAI JOHN(K/1116/2021)
R.REJI (ATTINGAL)(K/1471/2003)
SREEJA SOHAN K.(K/001271/2001)
K.V.SOHAN(K/475/1981)
OTHER PRESENT:
SMT.VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P.(C). No. 20235 of 2022
P.V.KUNHIKRISHNAN, J.
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W.P.(C) No. 20235 of 2022
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Dated this the 1st day of July, 2022
JUDGMENT
The above writ petition is filed with following prayers:
"(i) Issue a writ of mandamus or any other appropriate writ direction or order, directing the fourth respondent to take action under Section 235 X of the Kerala Panchayat Raj Act 1994 and to stop the construction of the place of worship being carried out by the fifth respondent in the property comprised in Re Survey No.163/3 of Kayyar Village without obtaining requisite building permit from the fourth respondent and without obtaining the No Objection Certificate from the first respondent contemplated under Sub Rule 4 of Rule 5 of the Kerala Panchayat Building Rules 2019 forthwith, so as to secure the ends of justice.
(ii) Issue a writ of mandamus or any other appropriate writ direction or order, directing the fourth respondent to consider and take appropriate action on Exhibit P2 representation submitted by the petitioner before the fourth respondent as expeditiously as possible and within a time frame to be fixed by this Honourable Court, so as to secure the ends of justice.
-4-W.P.(C). No. 20235 of 2022
(iii) Issue a writ of mandamus or any other appropriate writ direction or order, directing the first respondent to consider and take appropriate action on Exhibit P1 representation submitted by the petitioner before the first respondent as expeditiously as possible and within a time frame to be fixed by this Honourable Court, so as to secure the ends of justice. And
(iv) Such other relief's as this Hon'ble Court may deem fit and proper in the circumstances of the case." (sic)
2. The main prayer in this writ petition is to issue appropriate direction to the 4th respondent Panchayat to take action under Section 235X of the Kerala Panchayat Raj Act, 1994 to stop construction of the place of worship being carried out by the 5th respondent in the property comprised in Re.Sy.No.163/3 of Kayyar Village, without obtaining requisite building permit from the 4th respondent and without obtaining the No Objection Certificate from the 1st respondent contemplated under Rule 5(4) of the Kerala Panchayat Building Rules, 2019.
-5-W.P.(C). No. 20235 of 2022
3. Today, when the matter came up for consideration, the counsel for the 5th respondent submitted that the construction is already stopped in the light of the notice received from the 4th respondent and the request is being submitted before the 4th respondent for regularising the construction. Till final orders are passed by the Panchayat in the regularization petition to be filed, no further construction will be done by the 5th respondent. The counsel also submitted that no permission from the 1st respondent is necessary in the light of the judgment of the Division Bench in Mohanan and another v. District Collector and others [2022 (1) KHC 441].
4. The counsel for the petitioner argued that the permission from the 1st respondent is necessary. I am not deciding that question now. Admittedly, the construction is already stopped and the 5th respondent already approached the 4th respondent. If that is the case, the 4th respondent can decide -6- W.P.(C). No. 20235 of 2022 the matter, in accordance with law. While passing final orders, the 4th respondent will give notice to the petitioner also.
Therefore, this writ petition is disposed of in the following manner:
1. The 4th respondent is directed to proceed in accordance to law, if an application for regularization is submitted by the 5th respondent, after giving notice to the 5th respondent and to the petitioner.
2. The submission of the 5th respondent that the construction will not be carried out without getting permission from the 4th respondent Panchayat is recorded.
sd/-
P.V.KUNHIKRISHNAN JUDGE das -7- W.P.(C). No. 20235 of 2022 APPENDIX OF WP(C) 20235/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE REPRESENTATION DATED 8/6/2022 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.
Exhibit P2 THE TRUE COPY OF THE REPRESENTATION DATED 9/6/2022 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT.
RESPONDENT EXHIBITS Expt.R5-A True Copy of the Preliminary Decree dated :22-06-1955 for partition Expt.R5-B True Copy of the Collusively obtained Compromise Decree in O.S 7/2018 on the file of The Principal Munsiff Court, Kasaragod Dated: 30-05-2018 Expt.R5-C True Copy of the Plaint in O.S 155/2022 on the file of Munsiff Court Kasaragod dated: 25-05-2022 Expt.R5-D True Copy of the memorandum of Association (MoA) of the Society Expt.R5-D-1 True Copy of the English translation of Expt.R5-D Expt.R5-D-2 True Copy of the registration Certificate Dated : 08-09-2021 Expt.R5-E True Copy the Photograph showing the Deity House constructed in 2008 Expt.R5-A True Copy of the Preliminary Decree dated :22-06-1955 for partition Expt.R5-B True Copy of the Collusively obtained Compromise Decree in O.S 7/2018 on the file of The Principal Munsiff Court, Kasaragod Dated: 30-05-2018 Expt.R5-C True Copy of the Plaint in O.S 155/2022 on the file of Munsiff Court Kasaragod dated: 25-05-2022 -8- W.P.(C). No. 20235 of 2022 Expt.R5-D True Copy of the memorandum of Association (MoA) of the Society Expt.R5-D-1 True Copy of the English translation of Expt.R5-D Expt.R5-D-2 True Copy of the registration Certificate Dated : 08-09-2021 Expt.R5-E True Copy the Photograph showing the Deity House constructed in 2008