Disposed

St.Antony S Latin Catholic Church v. State of Kerala

Kerala HC9 Dec 2019WP(C)/12205/2019

Case brief

AI extract

What is this about?

The High Court declined to adjudicate factual disputes regarding whether a church building was renovated or new. It ordered a joint inspection by the Panchayat and District Town Planner to ascertain the building's nature before deciding on regularization and permissions, warning the church against violating a stop memo.

What did the court decide?

Order for joint inspection of the property by the Panchayat Secretary and District Town Planner within four months to determine the nature of the building.

St.Antony S Latin Catholic Church Vs State of Kerala — Kerala HC (2019) — LawSathi Research

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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 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941

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WP(C).No.9821 OF 2015(C)

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PETITIONER:

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FR. XAVIER LAZER, S/O.LAZER, PARISH PRIEST, ST.ANTONY'S LATIN, CATHOLIC CHURCH, KANJIRACODE, KUNDARA P.O., KOLLAM - 691 501.

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BY ADV. SRI.T.M.ABDUL LATHEEF

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RESPONDENTS:

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1 PERAYAM GRAMA PANCHAYAT, MULAVANA P.O., KOLLAM - 691 503, REPRESENTED BY ITS SECRETARY.

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2 SECRETARY, PERAYAM GRAMA PANCHAYAT, MULAVANA P.O., KOLLAM - 691 503.

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3 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001.

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4 ADDL R4, THE DISTRICT TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, MUNICIPAL BUILDING, CHINNAKKADA, KOLLAM-691 001 ADDL R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED 0912-2019 IN WP(C).

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BY ADV. R1 & R2 SRI.T.K.AJITHKUMAR (VALATH) GP N.B.SUNILNATH SC NOBEL RAJU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.12.2019, ALONG WITH WP(C).12205/2019(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.9821/2015 & 12205/2019 -2-

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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 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941

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WP(C).No.12205 OF 2019(A)

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PETITIONER:

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ST.ANTONY S LATIN CATHOLIC CHURCH, KANJIRAMCODE, KUNDARA P.O, REPRESENTED BY ITS PARISH PRIEST MARY JOHN, AGED 42 YEARS., S/O. JAMES, JOHNY BHAVAN, VELLIMON P.O, KUNDARA, KOLLAM 691 511

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BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 01

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2 DEPUTY DIRECTOR OF PANCHAYATH, KOLLAM 691 501

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3 PERAYAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, OFFICE OF PERAYAM GRAMA PANCHAYATH MULAVANA P.O, KOLLAM 691 503

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4 SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM 691 501

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5 T.M SEBASTIAN, S/O. TITUS VIEW, KANJIRACODE, KUNDARA P.O, KOLLAM 691 501

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6 ADDL R6, THE DISTRICT TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, MUNICIPAL BUILDING, CHINNAKKADA, KOLLAM-691 001 ADDL R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED 09-12-2019 IN WP(C).

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WP(C) Nos.9821/2015 & 12205/2019 -3-

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R3 BY ADV. SRI.NOBEL RAJU R5 BY ADV. SRI.SAJU J PANICKER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.12.2019, ALONG WITH WP(C).9821/2015(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) Nos.9821/2015 & 12205/2019 -4-

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JUDGMENT

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These two writ petitions are being

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considered together since the constitutive issues impelled therein are similar, if not identical; and since the prayers sought for are also inter depended on each other.

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filed by Father Xavier Lazer, who is the Chief Priest of the St.Antony's Latin Catholic Church, Kollam, and he impugning Exts.P2 and P3 proceedings of the Perayam Grama Panchayat, as

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per which, the Church's application for regularisation of a building made by them has been rejected for the reason that it does not have sufficient pollution facting mechanisms, rain water harvesting facilities and clearance from the Fire and Safety Department.

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Sri.Father Xavier Lazor asserts that

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the building in question is not a new one but a

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WP(C) Nos.9821/2015 & 12205/2019 -5-

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very old one, which had only been renovated with

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minimum effort, so as to make it a Congregation

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Hall/Auditorium and therefore, that the provisions of the Kerala Municipality Building Rules, which may apply to new constructions, cannot be automatically imposed upon this building. Father Xavier Lazor, therefore, prays that Exts.P2 and P3 in this writ petition be set aside and the Panchayat be directed to reconsider

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the application for regularisation of the

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building in terms of law forthwith.

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While so, W.P.(C) No.12205 of 2019

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has filed by the aforementioned St.Antony's Latin

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Cathoic Church, wherein their allegation is

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against Ext.P2, as per which, their request for

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permit to carry out certain essential repair and renovation work on the building in question has been rejected solely for the reason that W.P.(C)

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No.9821 of 2015 is still pending before this

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Court. The Church says that the stand of the

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WP(C) Nos.9821/2015 & 12205/2019 -6-

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Grama Panchayat in Ext.P2 is wholly untenable and therefore, prays that the same be set aside.

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I have heard Sri.T.M.Abdul Latheef,

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learned counsel appearing for the petitioner in W.P.(C) No.9821 of 2015; Sri.Vinoy Varghese Kallummoottil, learned counsel appearing for the petitioner in W.P.(C) No.12205 of 2019; Sri.Nobel Raju, learned Standing Counsel appearing for the Perayam Grama Panchayat in both cases and Sri.Saju J.Panicker, learned counsel appearing for the 5^th respondent in W.P.(C) No.12205 of 2019.

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As is ineluctable from the pleadings

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on record and the materials available, while the Church asserts that the building in question was remodelled and renovated from an old building,

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the Panchayat asserts otherwise and says that the old building had been demolished by the Church in November, 2018 and that a new construction, with a plinth area of nearly seven thousand square

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WP(C) Nos.9821/2015 & 12205/2019 -7-

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feet, had been constructed thereon.

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narration that the disputes between the parties are squarely in the realm of facts, into which

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this Court delve into or state affirmatively,

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going by the well recognised inhibition of jurisdiction of this Court, while acting under Article 226 of the Constitution of India, in entering into factual factors and making their evaluation. The question whether the present building is renovated from the old one or whether

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it is a completely new building, will have to be established by the parties in terms of law and this is pertinent because, on this issue will turn all other relevant issues in these writ

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petitions, including as to whether the

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requirements under the Kerala Panchayat Building Rules, namely, the obtention of the necessary clearance from the Fire and Rescue Department,

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installation of the rain water harvesting

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WP(C) Nos.9821/2015 & 12205/2019 -8-

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mechanism and pollution fighting mechanisms will be required to be satisfied. The pleadings and the materials available do not conclusively prove

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either of the stand of the parties and I am,

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therefore, not in a position to state affirmatively as to the merits of such

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contentions one way or the other.

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proper joint inspection of the premises is now required to be done by the Secretary of the Grama Panchayat and the District Town Planner, Kollam,

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with notice to both sides, thus leading to an evaluation of the nature of the building, on which will depend the further decision be taken by the Panchayat.

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In summation, I order the afore writ

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petitions and direct the Secretary of the Grama Panchayat and the District Town Planner, Kollam to immediately cause a joint inspection of the

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property in question after appropriately

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WP(C) Nos.9821/2015 & 12205/2019 -9-

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notifying the petitioners in both these writ petitions, as also the 5^th respondent in W.P.(C) No.12205 of 2019 and then first decide whether

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the building in question is an old one which is renovated, or whether it is a completely new construction; consequent to which the parties will be heard, thus leading to a final decision as to its regularisation and other permissions sought for by the petitioners herein in terms of law.

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The afore exercise shall be

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completed by the Secretary of the Panchayat as expeditiously as is possible, but not later than four months from the date of receipt of a copy of

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this judgment and the parties will be

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appropriately communicated with the resultant order, without any avoidable delay thereafter.

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I further clarify that the steps pursuant to Ext.P2 and P3 in W.P.(C) No.9821 of 2015 will

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depend upon the decision be taken by the

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WP(C) Nos.9821/2015 & 12205/2019 -10-

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Secretary after the joint inspection as above ordered is completed.

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After I dictated this judgment, Sri.Nobel

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Raju, the learned counsel for the Panchayat submitted that in spite of the stop memo having

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been issued to the Church, they are still

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continuing with the construction of the building. He, therefore, prays that they be injuncted from doing so until the afore exercise is completed. There is no doubt that if the Panchayat has

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already issued a stop memo, then the Church will have to comply with the same and I caution them that any action on their part in continuing with further construction in violation of the said memo will visit them with full consequences.

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This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C) Nos.9821/2015 & 12205/2019 -11-

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APPENDIX OF WP(C) 9821/2015

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 EXHIBIT P1. TRUE COPY OF THE JUDGMENT DATED 25.03.2014 PASSED BY THIS HONOURABLE COURT IN WP(C)NO.436/13.

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EXHIBIT P2 EXHIBIT P2. TRUE COPY OF THE LETTER NO.A2-2206/14 DATED 20.06.2014 ISSUED BY THE 1ST RESPONDENT (WITH ENGLISH TRANSLATION).

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EXHIBIT P3 EXHIBIT P3. TRUE COPY OF THE LETTER NO.A2/2206/14 DATED 23.06.2014 ISSUED BY THE 1ST RESPONDENT (WITH ENGLISH TRANSLATION).

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EXHIBIT P4 EXHIBIT P4. TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

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WP(C) Nos.9821/2015 & 12205/2019 -12-

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APPENDIX OF WP(C) 12205/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO.436/2013 DATED 25/03/2014.

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EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY 3RD RESPONDENT DATED 31/01/2019.

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EXHIBIT P3 TRUE COPY OF THE RESIGNATION LETTER OF SAID WILSON FROM THE COMMITTEE DATED 29.02.2016

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R5(a) THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN WPC 9821/2015 BY THE 3RD RESPONDENT

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EXHIBIT R5(b) THE TRUE COPY OF THE NOTICE DATED 5/4/2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT R5(c) THE TRUE COPY OF THE NOTICE DATED 10/4/2019 ISSUED TO THE STATION HOUSE OFFICER, KUNDARA. EXHIBIT R3A A TRUE COPY OF THE STOP MEMO ISSUED ON 0504-2019. EXHIBIT R3B A TRUE COPY OF THE INTIMATION TO SHO ON 1004-19.

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//TRUE COPY// PA TO JUDGE

St.Antony S Latin Catholic Church v. State of Kerala

Case brief

What is this about?

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St.Antony S Latin Catholic Church v. State of Kerala

Case brief

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