Prabhakar Alva vs The District Collector
2022 Latest Caselaw 8157 Ker

Citation : 2022 Latest Caselaw 8157 Ker
Judgement Date : 1 July, 2022

Kerala High Court

Prabhakar Alva vs The District Collector on 1 July, 2022

          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.
                                         -2-
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:
                                                      -3-
W.P.(C). No. 20235 of 2022



                             P.V.KUNHIKRISHNAN, J.
                             ======================================================

                              W.P.(C) No. 20235 of 2022
                       =============================================================

                      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.

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.

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

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

W.P.(C). No. 20235 of 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

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