Kerala High Court
Daya Charitable Trust vs The District Collector on 28 January, 2022
W.P.(C) No. 28337/2014 : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943
WP(C) NO. 28337 OF 2014
PETITIONER/S:
DAYA CHARITABLE TRUST
REPRESENTED BY ITS CHAIRMAN, P.UMMER, S/O.MOOSA,
MARIKKARA, KAKKODI, KOZHIKODE DISTRICT, PIN-673 611.
BY ADVS.
SRI.P.CHANDRASEKHAR
SRI.P.A.MOHAMMED SHAH
SMT.P.M.MAZNA MANSOOR
SRI.S.PRASANTH
SRI.B.PRASANTH
SRI.SOORAJ T.ELENJICKAL
SRI.T.S.SARATH
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
KOZHIKODE, PIN-673 001.
2 THE REVENUE DIVISIONAL OFFICER
KOZHIKODE-673 001.
3 THE SECRETARY
KAKKODI GRAMA PANCHAYAT, KAKKODI, KOZHIKODE, PIN-673 611.
4 KAKKODI GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, KAKKODI, KOZHIKODE,
PIN-673 611.
BY ADVS.
R3 BY SRI. P.V.ANOOP, SC
SRI.P.V.KUNHIKRISHNAN
R1& R2 BY SRI.RIYAL DEVASSY,GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 28337/2014 : 2:
Dated this the 28th day of January, 2022.
JUDGMENT
This writ petition is filed by a charitable trust, seeking to quash
Ext. P15 order dated 25.10.2014 passed by the Secretary of the
Kakkodi Grama Panchayat-- the 3rd respondent, directing the petitioner
to lock and seal building No. KP 10/914 G, since the petitioner has
used the said building for public prayer, apparently, without securing
permission in contemplation of the provisions of the Kerala Panchayat
Building Rules, 2011 ('Rules, 2011' for short) and the Manual of
Guidelines issued by the Government of Kerala dated 25 th July, 2005
to prevent and control the communal disturbances and to permit
communal harmony.
2. The paramount contention advanced by the petitioner is that
it has constructed a commercial building having ground floor and first
floor, after securing building permit, and as per the approved plan
issued by the Secretary of the Kakkodi Grama Panchayat.
3. According to the petitioner, there is a prayer hall on the first
floor, made for use of the employees working in the building. It is
further submitted that even though the construction of the building is
strictly in accordance with the building permit and approved plan,
certain persons belonging to a leading political party made a complaint
against the use of the prayer hall stating that it is used by the public.
It is also pointed out that the Secretary of the Panchayat refused to
number the building and thereupon, it approached the Ombudsman for
the local Self Government Institutions, who directed the Secretary to
number the building on condition that the prayer hall shall not be used
till a decision is taken by the District Collector in that regard.
4. According to the petitioner, the District Collector thereafter
directed the Secretary of the Panchayat to permit use of the prayer
hall, on condition that the area of the room is reduced and used only
by the employees working in the building. It is further submitted that
as directed by the Secretary of the Panchayat, the petitioner had filed
an affidavit to that effect before the Secretary and reduced the area of
the prayer hall and submitted a plan in that regard to the Secretary of
the Panchayat.
5. It is also submitted that separate petitions are submitted
before the District Collector and the Secretary of the panchayat to
allow it to use the prayer hall area as per the directions of the District
Collector for the employees of the building and the decision is
awaited. It is also submitted that since no decision was taken, the
petitioner has approached this Court by filing W.P.(C) No. 2919 of 2013
and secured Ext. P14 judgment dated 27th November, 2013, whereby
the District Collector was directed to consider the application
submitted by the petitioner after affording an opportunity of being
heard to the petitioner and the Secretary of the Panchayat, and pass
appropriate orders within one month.
6. The learned counsel further contended that the District
Collector has not passed any orders as directed by this Court. It was
during the interregnum that Ext. P15 impugned order was passed
which is causing serious prejudice, is the contention advanced by the
petitioner.
7. A detailed counter affidavit is filed by the Panchayat and the
Secretary refuting the allegations and claims and demands raised by
the petitioner and also justifying its action of issuing Ext. P15
impugned order. That apart, it is contended that on receipt of a
complaint from one Srinivasan, an enquiry was made and it was found
that the prayer hall was also used by the public and not the employees
working in the building alone. It is further submitted that only less
than 5 members belonging to the Muslim community are working in
the building and on inspection, it was found that a large number of
people are gathering in the building during the prayer time. Therefore,
it is the submission of the learned Standing Counsel that the building
is used as a place of worship without securing permission from the
Secretary of the Grama Panchayat in terms of Rule 7(8A) of the Rules,
2011 and without adhering to the Manual of Guidelines issued by the
State Government to control and regulate any communal disturbances
by taking note of all the attendant circumstances.
8. The petitioner has also filed a reply affidavit reiterating the
stand adopted in the writ petition and also submitting that the
petitioner is using the hall after reducing its size in accordance with
the directions issued by the District Collector and the same is used
only by the employees working in the building belonging to the Muslim
community.
9. I have heard the learned counsel for the petitioner Sri P
Chandrasekhar, learned Government Pleader Sri. Riyal Devassy and
Sri. P.V. Anoop for the Grama Panchayat and Secretary, and perused
the pleadings and materials on record.
10. A detailed deliberation of the matter is not required, since
the learned counsel for the petitioner submitted that the building in
question is used only as a prayer hall after reducing its area in
accordance with the directions issued by the District Collector,
Malappuram. To put it otherwise, the submission of the petitioner is, it
has not used or has no intention to use the building in question as a
mosque or for public worship or otherwise than as permitted by the
District Collector, and will not permit the general public to attend the
prayers.
11. In fact, as provided under Rule 7(8A) of Rules, 2011, in
order to conduct a Public worship, prior approval or clearance or
permission or concurrence, as the case may be, of the District
Collector concerned shall be obtained, and also satisfies the conditions
stipulated in the Manual of Guidelines to prevent and control the
communal disturbances and to promote communal harmony.
Admittedly, the District Collector has given permission only for using
the building in question as a prayer hall for the employees in the
building.
12. Therefore, the submission of the petitioner that the building
in question will only be used as a prayer hall for the benefit of the
employees working in the building, is recorded and the writ petition is
disposed of accordingly.
13. However, I make it clear that if the building in question is
used for religious worship by the public from outside, the Secretary of
the Panchayat would be at liberty to take appropriate action in
accordance with law.
14. It is also placed on record that the Kerala Panchayat
Building Rules, 2011 is now replaced by the Kerala Panchayat Building
Rules, 2019, wherein there is no requirement of securing prior
approval or clearance or permission or concurrence from the District
Collector. However, the State Government has amended the Manual of
Guidelines to prevent and control and communal disturbances as per
order bearing No. G.O.(P) No. 19/2021/Home dated 14.02.2021,
whereby the Local Self Government Authority is given the absolute
power to grant permission, concurrence etc. The Secretary of the
Grama Panchayat would be at liberty to take action, if any violation of
the permission is committed by the petitioner in accordance with the
Guidelines, 2005 and the amended Manual of Guidelines dated
14.02.2021.
sd/- SHAJI P. CHALY, JUDGE.
Rv
APPENDIX OF WP(C) 28337/2014
PETITIONER EXHIBITS
EXT.P1 P1: COPY OF THE TRUST DEED OF DAYA WELFARE TRUST
DATED 24/4/2002.
EXT.P2 P2: COPY OF THE TRUST DEED OF DAYA CHARITABLE
TRUST DATED 12/5/2008.
EXT.P3 P3: COPY OF THE BUILDING PERMIT ALONG WITH
APPROVED PLAN ISSUED BY THE 2ND RESPONDENT TO
THE PETITIONER FOR CONSTRUCTION OF THE
BUILDING.
EXT.P4 P4: COPY OF THE ORDER DATED 17.5.2011 IN OP
NO.1009/2010 OF THE HONOURABLE OMBUDSMAN.
EXT.P5 P5: COPY OF THE RECEIPT DATED 31.3.2013 FOR
PAYMENT OF PROPERTY TAX IN RESPECT OF THE
BUILDING.
EXT.P6 P6: COPY OF THE LETTER DATED 18.6.2013 SENT BY
THE 1ST RESPONDENT TO THE 3RD RESPONDENT.
EXT.P7 P7: COPY OF THE LETTER DATED 27.3.2010 OF THE
TAHSILDAR, KOZHIKODE TO THE 2ND RESPONDENT.
EXT.P8 P8: COPY OF THE LETTER DATED 13.9.2013 SENT BY
THE 3RD RESPONDENT TO THE PETITIONER.
EXT.P9 P9: COPY OF THE LETTER DATED 7.9.2013 RECEIVED BY
THE PETITIONER FROM THE 3RD RESPONDENT.
EXT.P10 P10: COPY OF THE AFFIDAVIT DATED 1.10.2013 FILED
BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXT.P11 P11: COPY OF THE LETTER DATED 4.11.2013 ISSUED BY
THE 3RD RESPONDENT TO THE PETITIONER.
EXT.P12 P12: COPY OF THE PETITION SUBMITTED BY THE
PETITIONER DATED 15.11.2013 BEFORE THE 1ST
RESPONDENT.
EXT.P13 P13: COPY OF THE PETITION SUBMITTED BY THE
PETITIONER DATED 15.11.2013 BEFORE THE 3RD
RESPONDENT.
EXT.P14 P14: COPY OF THE JUDGMENT IN WPC.NO.29129 OF
2013M DATED 2.11.2013 OF THIS HONOURABLE COURT.
EXT.P15 P15: COPY OF THE NOTICE NO.A4-7055/2014 DATED
25.10.2014 OF THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS To Judge.
rv
