Kerala High Court
C.K.Ponnappan vs The District Collector on 17 February, 2021
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:
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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,
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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
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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
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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
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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
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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.
