Disposed

Indian Pentecostal Church v. the State of Kerala

Kerala HC11 Nov 2019WP(C)/10801/2018

Case brief

AI extract

What is this about?

Court addressed writ petitions concerning a Church's earth removal and excavation activities adjacent to private properties fearing loss of lateral support. The court deferred final merit on structural safety, directing the Municipality to process a renewal application for the Church's building permit to decide terms of earth removal.

What did the court decide?

Directing the Indian Pentecostal Church to apply for renewal of Building Permit within one month for the Municipality to decide terms of earth removal after hearing parties.

Indian Pentecostal Church Vs the State of Kerala — Land Acquisition | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941

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WP(C).No.23857 OF 2017(F)

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PETITIONER:

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SARASU AGED 64 YEARS, W/O. LATE CHELLAPPAN, KUNNUKANDATHIL, MUTTAMBALAM P.O., KOTTAYAM - 686 001.

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BY ADVS. SRI.RAJAN VISHNURAJ

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SRI.V.HARISH

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RESPONDENTS:

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1 DISTRICT COLLECTOR, KOTTAYAM KOTTAYAM-KUMILY ROAD, COLLECTORATE,

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KOTTAYAM - 686 001.

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2 REVENUE DIVISIONAL OFFICER KOTTAYAM, SECOND FLOOR, MINI CIVIL STATION, UNION CLUB ROAD, KOTTAYAM - 686 001.

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3 VILLAGE OFFICER MUTTAMBALAM VILLAGE, KOTTAYAM - 686 004.

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4 GEOLOGIST DEPARTMENT OF MININIG AND GEOLOGY, DISTRICT OFFICE, KOTTAYAM - 686 001.

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5 KOTTAYAM MUNICIPALITY KOTTAYAM P.O., KOTTAYAM - 686 001. REPRESENTED BY ITS SECRETARY.

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6 INDIAN PENTECOSTAL CHURCH PHILADELPHIA KANJIKUZHY, MUTTAMBALAM P.O., KOTTAYAM - 686 004. REPRESENTED BY ITS DISTRICT SECRETARY, K.S.JOSE.

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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R1 BY ADV. SRI.V.G.ARUN K7952004 R1-2 BY GOVERNMENT PLEADER R1 BY ADV. SMT.INDULEKHA JOSEPH R1 BY ADV. SRI.NEERAJ NARAYAN R1, R5 BY SRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY R6 BY ADV. SRI.V.G.ARUN (K/795/2004)

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SR.GP. SMT.K.AMMINIKUTTY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.11.2019, ALONG WITH WP(C).10801/2018(A), WP(C).22972/2019(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941

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WP(C).No.10801 OF 2018

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PETITIONER:

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INDIAN PENTECOSTAL CHURCH PHILEDEALPHIA, REPRESENTED BY ITS SECRETARY, K.J.JOSE, KANJIKUZHI, MUTTAMBALAM.P.O-686004, KOTTAYAM.

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BY ADVS. SRI.V.G.ARUN (K/795/2004) SMT.INDULEKHA JOSEPH SRI.NEERAJ NARAYAN SHRI.SARATH SUKUMARAN

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-01.

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2 THE REVENUE DIVISIONAL OFFICER KOTTAYAM, SECOND FLOOR, MINI CIVIL STATION, UNION CLUB ROAD, KOTTAYAM-686001.

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3 THE VILLAGE OFFICER MUTTAMBALAM VILLAGE, KOTTAYAM-686004.

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4 THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOTTAYAM-686001.

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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5 KOTTAYAM MUNICIPALITY KOTTAYAM.P.O, KOTTAYAM-686001, REPRESENTED BY ITS SECRETARY.

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6 ADDL R6, SARASSU, AGED 64 YEARS W/O.LATE CHELLAPPAN, KUNNUKANDATHIL, MUTTAMBALAM P.O, KOTTAYAM-686 001 ADL R6 IMPLEADED AS PER ORDER DTD O6-08-2019 IN IA 1/2019 IN WP(C) 10801/2018

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R1-4 BY GOVERNMENT PLEADER R5 BY SRI.ASHISH K. JOHN, SC, KOTTAYAM MUNICIPALITY R6 BY ADV. SRI.RAJAN VISHNURAJ R6 BY ADV. SRI.V.HARISH

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SR.GP. SMT.K.AMMINIKUTTY SRI.SIBY CHENAPPADY, SC,

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.11.2019, ALONG WITH WP(C).23857/2017(F), WP(C).22972/2019(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941

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WP(C).No.22972 OF 2019(V)

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PETITIONER:

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SINDHU.C.C., AGED 43 YEARS W/O. SUNIL KG, NIKUNJAM, MAJESTIC LANE, MUTTAMBALAM P.O., KOTTAYAM 686 004.

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BY ADVS. SRI.RAJAN VISHNURAJ SRI.V.HARISH

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RESPONDENTS:

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1 DISTRICT COLLECTOR, KOTTAYAM DISTRICT , KOTTAYAM KUMILY ROAD, COLLECTORATE, KOTTAYAM P.O. KOTTAYAM 686 001.

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2 GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, COLLECTORATE, KOTTAYAM P.O. KOTTAYAM 686 001.

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3 KOTTAYAM MUNICIPALITY,KOTTAYAM P.O., KOTTAYAM 686 001, REPRESENTEND BY ITS SECRETARY.

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4 INDIAN PENTECOSTAL CHRUCH HILADELPHIA, KANJIKUZHY, MUTTAMBLAM P.O., KOTTAYAM 686 004, REPRESENTED BY ITS DISTRICT SECRETARY K.S. JOSE.

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R3 BY SRI.ASHISH K. JOHN, SC, KOTTAYAM MUNICIPALITY

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SR.GP. SMT.K.AMMINIKUTTY SRI.SIBY CHENAPPADY, SC,

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.11.2019, ALONG WITH WP(C).23857/2017(F), WP(C).10801/2018(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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JUDGMENT

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I am considering these writ petitions together on account of the interlayered factual circumstances presented therein and because the reliefs to be granted in one will certainly depend upon the reliefs to be granted in the other.

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W.P.(C).Nos.23857 of 2017 and 22972/2019 have

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been filed by two individuals by name Smt.Sarasu and Smt.Sindhu.C, alleging that the Indian Pentecostal Church (Philadelphia) (which will hereinafter be referred as “Church” for short) is making a construction in the property adjacent to theirs’ and is attempting to remove large amount of ordinary earth under such guise, which will rob their properties of its lateral support leading to unspeakable and irreparable damage to their lives and their properties. Smt.Sarasu and Smt.Sindhu, therefore, pray that the Church be injuncted from removing ordinary earth from their property and their construction be interdicted, until and unless, they provide adequate lateral support to their properties, by construction of a retaining wall on all sides.

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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While so, W.P.(C).No.10801/2018 has been filed by the Church, alleging that merely because W.P. (C).N0.23857/2017 is pending before this Court, the Senior Geologist, Kottayam is refusing to allow removal ordinary earth as per the Development Permit already obtained by them. They assert that, as is evident from Ext.P3 Development Permit issued by the respondent-Kottyam Municipality, they have been permitted to remove 3200 Metric Tonnes of earth for the purpose of development of their property, but that the Geologist is refusing to allow them to do so, solely citing the afore reason. The Church, therefore, prays that Ext.P10 in this writ petition be quashed and the 4^th respondent-Geologist be directed to consider their application, namely Ext.P8, in terms of law.

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I have heard Sri.Harish Vasudevan-learned Counsel appearing for the petitioners in W.P.(C).Nos.23857/2019 and 22972/2019; Smt.Indulekha Joseph-learned counsel appearing for the petitioner-Church in W.P.(C).No.10801/2018; Sri.Sibi Chenappadil-learned Standing Counsel appearing for Kottayam Municipality and the learned Senior Government PleaderSmt.K.Amminikutty appearing for the official respondents.

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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As is evident from the afore narrative, the sole issue

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in these writ petitions is whether the Church can be permitted to remove ordinary earth from their property, particularly, in the absence of a quarrying permit obtained by them. While Sri.Harish Vasudevan, learned counsel for Smt.Sarasu and Smt.Sindhu, asserts that, as per Ext.P3 Development Permit, the only permission granted to the Church was to remove earth for the purpose of digging the foundation for their proposed construction, and hence no more earth can be now allowed to be transported, particularly, because such work is over and any further digging and removal will cause their properties to lose its lateral support completely and may slide down. Sri.Harish Vsudevan, therefore, prays that the Church be directed not to conduct any further mining or excavation activities in their property and that the competent Authority be directed to ensure that a retaining wall is constructed on all its sides, so as to ensure that his clients’ properties' lateral support is not lost. He, however, concedes that pending these writ petitions, the Church has constructed a retaining wall on the side of the property of Smt.Sarasu, though they have not done so in the case of the

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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property of Smt.Sindhu. He says that, however, the stability and structural efficacy of the said retaining wall is under suspicion and that it may not be fully sufficient to provide necessary lateral support to his clients’ property.

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In response, Smt.Indulekha Joseph-learned counsel appearing for the Church, submits that removal of ordinary earth from her clients’ property was done solely on the basis of Ext.P1 Building Permit Ext.P2 Development Permit. She points out that, as is evident from the Development Permit and the order of the Geologist, her client has been allowed to remove 3200 Metric Tonnes of ordinary earth, but that they have been issued with passes to remove only 700 Metric Tonnes. She says that this was because the Geologist refused to allow her client to remove the balance ordinary earth solely on account of the pendency of the writ petitions filed by Smt.Sarasu and Sindhu and that this has been so stated in the impugned order, namely Ext.P10. Smt.Indulekha Joseph then adds that as per the directions of the competent Authorities, her client has constructed the retaining wall on the sides of their property and therefore, that there is no reason why the Geologist must now

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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refuse to allow them to remove the balance ordinary earth from their property for development of the same. She further says that, as is clear from the report of the Senior Geologist, placed on record along with memo of the learned Government Pleader dated 01.06.2019, he has stated therein that though he is not the competent officer to assess the strength of the retaining wall already constructed- which can only be done by the Structural Engineer of the Public Works Department and the balance ordinary earth to be removed can be only ascertained with the help and assistance of the concerned Engineer of the Local Self Department. She says that it is thus clear that the Geologist has not been able to take a final decision in this matter, and prays that directions be issued to the said Authority to allow her client to remove the balance ordinary earth from the property to the extent of 3200 Metric Tonnes, as has been permitted through Ext.P3.

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The learned Senior Government PleaderSmt.K.Amminikutty, appearing on behalf of the official respondents, submits that two memos have been filed in these cases, enclosing the reports of the Senior Geologist. She says

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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that, as is clear from the first report-which is available on the files of W.P.(C).No.23587/2017-the Geologist had found that the work of retaining wall had not been completed and that the property of the petitioners appear to be without lateral support. She says that, however, during the next visit, which was done on the basis of the interim order from this Court, it was found by him that retaining wall had been constructed, but that he was unable to verify whether the same is sufficient to protect the properties of the petitioners. The learned Government Pleader, therefore, says that if this Court is so inclined, the Geologist will requisition the assistance of the concerned Engineer of the Public Works Department for such purpose and then take a final decision.

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The learned Standing Counsel appearing for Kottayam Municipality submits that since the building permit issued to the petitioner, namely Ext.P1 in W.P. ( C).No.10801/2018, is to expire within the next three months, the petitioner must apply for an extension of the same, before starting any construction. He says that this is necessary because, if the construction is now started and further extension

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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of permit is declined by the Municipality, then the Church will be put to prejudice; and prays that this Court, direct them to make an application for extension, in which event, all the corollary and attendant circumstances and factors can also be taken into account, including whether any further ordinary earth is required to be removed from the property in question. He pleads that this Court may order this writ petition on such lines.

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I have considered the afore submissions and have also examined the materials available on record.

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It is ineluctable that the apprehension of Smt. Sarasu and Smt.Sindhu-the petitioners in W.P.(C).Nos.23857/17 and 22972/2019-is that if the Church continues to remove ordinary earth from their property, the lateral support to their property will be lost and that their buildings constructed thereon would tumble down. They assert that, as is evident from the report now placed on record by the Geologist, the site plan produced by the Church does not mention about the residential houses in its close vicinity and therefore, that the Building Permit as well as the Development Plan are improper in law and require to be reconsidered by the competent Authorities. In fact, Sri. Harish

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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Vasudevan, learned counsel appearing for Smt. Sarasu and Smt. Sindhu, says that his clients have, therefore, also impugned Ext.P9, which is the order of the Geologist granting permission to excavate and remove ordinary earth from the property of the Church.

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However, what is crucial in this case is whether the Church has been allowed to excavate and remove only that quantity of ordinary earth, which is absolutely essential for the purpose of construction. This is important because the Church themselves have, by constructing a retaining wall, acknowledged that the lateral support to the properties of Smt.Sarasu and Smt.Sindhu was in danger, though the strength of the said wall is yet to be conclusively assessed. I am, therefore, of the view that the suggestion afore made by the learned standing Counsel for Kottayam Municipality must be acceded to, especially because it is conceded that the period of the building permit is to expire on 14-02-2020. This is because, as and when the competent Authority of the Municipality considers such an application for renewal, they will also be enjoined to consider further action in terms of the Development

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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Permit, since development of the property of the Church is necessary only for the purpose of construction and no other.

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Resultantly, I order these writ petitions and direct the petitioner in W.P.(C).No.10801/2018-the Indian Pentecostal Church, to make an application for renewal of their Building Permit, namely Ext.P1, which shall be done within a period of one month from the date of receipt of a copy of this judgment; in which event, the Secretary of the Municipality will consult the Geologist as also the competent Engineers of the Municipality and then take a decision as to the terms under which the said Permit can be renewed, as also the extent of the ordinary earth that would require to further removed for the purpose of construction. This exercise shall be completed, after affording an opportunity of being heard to the Church as well as Smt.Sarasu and Smt.Sindhu the petitioners in the other two writ petitions-and the resultant decision shall be communicated to all parties, as expeditiously as is possible, but not later than one month after the application is made by the Church in terms of this judgment.

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I clarify that I have not entered into the merits of the

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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contentions of the parties relating to construction of the retaining wall or its strength and that it will up to the Secretary of the Municipality to take a final decision on this also in consultation with the Geologist and provide necessary measures and steps, as and when the application of the Church is considered in terms of the afore directions.

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Since I have directed the Secretary of the Municipality to take a decision as above, I do not deem it appropriate to consider prayer No.2 W.P.(C).No.23857/2017 and leave it to the said Secretary to take a decision on this also particularly, because, Smt.Sarasu appears to have an apprehension that the Church is likely to misuse the Building Permit and to construct a place of religious worship, without obtaining necessary permissions under the applicable Statutes and Regulations.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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nak

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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APPENDIX OF WP(C) 23857/2017

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE PHOTOCOPY OF BASIC TAX RECEIPT OF THE PROPERTY OF THE PETITIONER'S HUSBAND.
EXHIBIT P2	A TRUE PHOTOCOPY OF THE BUILDING PERMIT DATED 15.02.2017 ISSUED BY THE 5TH RESPONDENT TO THE 6TH RESPONDENT.
EXHIBIT P3	A TRUE PHOTOCOPY OF THE DEVELOPMENT PERMIT DATED 03.05.2017 ISSUED BY THE 5TH RESPONDENT TO THE 6TH RESPONDENT.
EXHIBIT P4	A TRUE PHOTOCOPY OF THE FILE NOTE OF THE 5TH RESPONDENT.
EXHIBIT P5	TRUE PHOTOGRAPHS EVIDENCING THE MINING DONE BY THE 6TH RESPONDENT AND THE DAMAGE DONE TO THE ACCESS ROAD TO THE PETITIONER'S PROPERTY.
EXHIBIT P6	A TRUE PHOTOCOPY OF THE COMPLAINT DATED 30.06.2016 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P7	A TRUE PHOTOCOPY OF THE INSPECTION REPORT DATED 30.06.2016 SUBMITTED BY THE 3RD RESPONDENT.
EXHIBIT P8	A TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 14.12.2016 BY THE 2ND RESPONDENT.
EXHIBIT P9	A TRUE PHOTOCOPY OF THE ORDER DATED 11.05.2017 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P10	A TRUE PHOTOCOPY OF THE COMPLAINT DATED 24.05.2017 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P11	A TRUE PHOTOCOPY OF THE COMPLAINT DATED 09.06.2017 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P12	A TRUE PHOTOCOPY OF THE STOP MEMO DATED 13.06.2017 ISSUED BY THE 3RD RESPONDENT TO THE 6TH RESPONDENT.

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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EXHIBIT R6(A) TRUE COPY OF THE ORDER DATED 14/6/2017 ISSUED BY THE 2ND RESPONDENT

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EXHIBIT R6(B) TRUE COPY OF THE STRUCTURAL PLAN OF THE PROPOSED BUILDING

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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APPENDIX OF WP(C) 10801/2018

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE PHOTOCOPY OF THE BUILDING PERMIT BY NO.PW3-BA(6643)/2017 DATED 15.02.2017 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER
EXHIBIT P2	A TRUE PHOTOCOPY OF THE DEVELOPMENT PERMIT BY NO.PW3/BA/409/16-17 DATED 03.05.2017 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER
EXHIBIT P3	A TRUE PHOTOCOPY OF THE PERMIT ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 11.05.2017
EXHIBIT P4	A TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT BY NO.K-2782/16 DATED 14.12.2016
EXHIBIT P5	A TRUE PHOTOCOPY OF THE STOP MEMO ISSUED TO THE PETITIONER BY NO.371/2017 DATED 13.06.2017 BY THE 3RD RESPONDENT
EXHIBIT P6	A TRUE PHOTOCOPY OF THE STOP MEMO ISSUED TO THE PETITIONER BY NO.K.2782/2017 DATED 14.06.2017 BY THE 2ND RESPONDENT
EXHIBIT P7	A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 28.07.2017 IN WRIT PETITION NO.23857/2017 BEFORE THE HON'BLE HIGH COURT OF KERALA
EXHIBIT P8	A TRUE PHOTOCOPY OF THE RENEWAL APPLICATION DATED 24.11.2017 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT
EXHIBIT P9	A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 19.12.2017 IN WRIT PETITION NO.23857/2017
EXHIBIT P10	A TRUE PHOTOCOPY OF THE ORDER NO.978/D0Y/ML/2017 DATED 17.03.2018.

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WP(C).No.23857 OF 2017(F)& CONN.CASES

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APPENDIX OF WP(C) 22972/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE PHOTOCOPY OF THE BUILDING PERMIT DATED 15.2.2017 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2	A TRUE PHOTOCOPY OF THE DEVELOPMENT PERMIT DATED 3.5.2017 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P3	A TRUE PHOTOCOPY OF THE COMPLAINT 17.7.2017 PREFERRED BY THE PETITIONERS HUSBAND BEFORE THE 1ST RESPONDENT.
EXHIBIT P4	A TRUE PHOTOCOPY OF THE COMMUNICATION DATED 19.12.2017 ISSUED BY THE OFFICE OF THE RDO, KOTTAYAM TO THE PETITIONERS HUSBAND.
EXHIBIT P5	A TRUE PHOTOCOPY OF THE COMPLAINT DATED 8.11.2018 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P6	A TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P7	A TRUE PHOTOCOPY OF THE QUARRYING PERMIT DATED 11.5.2017 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE 4TH RESPONDENT.
EXHIBIT P8	A TRUE PHOTOCOPY OF THE RENEWAL APPLICATION DATED 24.11.2017 PREFERRED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT.
EXHIBIT P9	TRUE PHOTOGRAPHS EVIDENCING THE MANNER IN WHICH THE 4TH RESPONDENT HAS CONDUCTED MINING OPERATIONS ALARMINGLY CLOSE TO THE PETITIONERS PROPERTY.

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//TRUE COPY// P.A TO JUDGE

Indian Pentecostal Church v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Indian Pentecostal Church v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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