Allowed

Deva Matha Church, v. Kodakara Grama Panchayat

Kerala HC19 Nov 2019WP(C)/16/2019

Case brief

AI extract

What is this about?

The Court set aside the District Collector's rejection order regarding a Church's construction request. The order was quashed as the Collector exceeded jurisdiction by focusing on illegal cemetery and pollution issues rather than communal harmony. The Church was directed to reconsider the application affordably hearing parties within two months.

What did the court decide?

Set aside Ext.P13; direct District Collector to reconsider application under Government circular and issue appropriate orders within two months.

Deva Matha Church, Vs Kodakara Grama Panchayat — Landlord and Tenant | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

¶4

TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941

¶5

WP(C).No.16 OF 2019(B)

¶6

PETITIONER/S:

¶7

DEVA MATHA CHURCH, VALLAPPADY, KODAKARA P.O., THRISSUR DISTRICT- 680684, REPRESENTED BY ITS PRESENT VICAR FR.LIJO KALAPARAMBATH.

¶8

BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.ABRAHAM THOMAS (PUTHURAN) SRI.P.K.MANOJKUMAR

¶9

RESPONDENT/S:

¶10

1 KODAKARA GRAMA PANCHAYAT,

¶11

THRISSUR- 680684, REPRESENTED BY ITS SECRETARY.

¶12

2 THE SECRETARY, KODAKARA GRAMA PANCHAYAT, KODAKARA, THRISSUR- 680684.

¶13

3 THE DISTRICT COLLECTOR, COLLECTORATE, THRISSUR- 680601.

¶14

4 THE DISTRICT POLICE CHIEF, THRISSUR DISTRICT, THRISSUR- 680601.

¶15

5 THE TAHSILDAR, CHALAKUDY TALUK, THRISSUR- 680307.

¶16

6 SOJU,

¶17

S/O.SUBRAMANIAN, KOLATHIPARAMBIL HOUSE, VALLAPPADY, KODAKARA P.O., THRISSUR DISTRICT- 680684.

¶18

7 LIJU,

¶19

S/O.SUBRAMANIAN, KOLATHIPARAMBIL HOUSE, VALLAPPADY, KODAKARA PO., THRISSUR DISTRICT- 680684.

¶20

R1-2 BY ADV. SRI.M.R.ANISON

¶21

R3 BY GOVERNMENT PLEADER

¶22

R6-7 BY ADV. SRI.AJITH VISWANATHAN

¶23

WP(C).No.16 OF 2019(B)

¶24

¶25

OTHER PRESENT:

¶26

GP POOJA SURENDRAN

¶27

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶28

WP(C).No.16 OF 2019(B)

¶29

¶30

JUDGMENT

¶31

The petitioner, which is a Church, has

¶32

approached this Court impugning Ext.P13 order

¶33

issued by the District Collector, as per

¶34

which, the reference made by the 1^st respondent – Kodakara Grama Panchayath to the said Authority under the provisions of the

¶35

Government Order relating to the maintenance

¶36

and Protection of communal harmony, has been rejected, not on account of any suspicion of breach of peace and tranquility in the area if the Church is allowed to make construction as per their request, but solely on the ground that an illegal cemetery is being operated and

¶37

that this is likely to cause prejudice to the

¶38

residents of the said area.

¶39

The Church, through their learned

¶40

Senior Counsel, Shri.Nandakumara Menon,

¶41

instructed by Shri.Abraham Thomas, submits

¶42

that the District Collector has traversed beyond the jurisdiction vested on him under

¶43

WP(C).No.16 OF 2019(B)

¶44

¶45

the applicable Government Order, since the

¶46

said Authority could have only considered whether the request of the Church would cause

¶47

communal disharmony in the area and not whether it complies with the Building Rules and such other provisions of law. The learned

¶48

Senior Counsel further submits that, in any event of the matter, this issue has now become

¶49

irrelevant because the only objectors to the petitioner - Church, namely respondents 6 and 7, have now sold their properties to the church and are no longer residing in the locality. The learned Senior Counsel,

¶50

therefore, prays that Ext.P13 be set aside and

¶51

the District Collector be directed to

¶52

reconsider the matter strictly in terms of the applicable circular issued by the Government.

¶53

The learned counsel appearing for

¶54

respondents 6 and 7, Shri.Ajith Vishwanathan, affirms the aforementioned submissions of the

¶55

learned Senior Counsel, that his clients have

¶56

WP(C).No.16 OF 2019(B)

¶57

¶58

sold their respective properties to the Church

¶59

and that they are not residing in the locality. He says that he has nothing further to comment in this matter on account of such developments.

¶60

The learned Government Pleader,

¶61

Smt.Pooja Surendran, appearing on behalf of the District Collector, Thrissur, submits that Ext.P13 has been issued taking note of all the relevant factors, including that the Church has not provided for necessary pollution fighting mechanisms, but are operating a cemetery without following necessary and imperative conditions for doing so. She therefore, prays that Ext.P13 be left uninterdictated and that the Church be

¶62

directed to comply with all necessary requirements in law.

¶63

The learned Standing Counsel for the 1^st

¶64

respondent- Kodakara Grama Panchayath submits that they have referred the application of the

¶65

WP(C).No.16 OF 2019(B)

¶66

¶67

petitioner – Church, for causing a

¶68

construction, to the District Collector, as is

¶69

required under the applicable Government circular and that they are willing to abide by any directions to be issued by this Court in this Writ Petition.

¶70

When I hear the learned Senior Counsel,

¶71

Shri. Nandakumara Menon on the lines afore

¶72

recorded, I find force in his contentions because, prima facie, Ext.P13 appears to be issued by the District Collector arrogating to himself many of the obligations and duties

¶73

vested upon the Panchayath and the Town Planners. The question whether the Church has established necessary pollution fighting mechanisms and whether they are running an

¶74

illegal cemetery are not issues which the

¶75

Collector need to have adverted to since, going by the applicable Government circular,

¶76

what is relevant is that the District

¶77

Collector must assess it from the angle

¶78

WP(C).No.16 OF 2019(B)

¶79

¶80

maintenance of communal harmony and breach of

¶81

peace and tranquility. Pertinently, this aspect has not been mentioned in Ext.P13, but

¶82

the District Collector has proceeded solely on

¶83

the basis that the Church is operating a cemetery illegally and without maintaining

¶84

the necessary pollution fighting mechanisms.

¶85

Obviously, therefore, I cannot find

¶86

favor with Ext.P13 and this is more so

¶87

because, as matters now stand, respondents 6

¶88

and 7 do not appear to be contesting the application of the petitioner for building permit.

¶89

Resultantly, I order this Writ Petition and set aside Ext.P13 and direct the District

¶90

Collector, Thrissur to reconsider the

¶91

application of the petitioner preferred by them before the 1^st respondent- Kodakara Grama Panchayath, adverting to the requisites under

¶92

the applicable Government circular and to

¶93

issue appropriate orders thereon, after

¶94

WP(C).No.16 OF 2019(B)

¶95

affording an opportunity of being heard to them also, as expeditiously as is possible, but not later than 2 months from the date of receipt of a copy of this judgment.

¶96

Sd/-

¶97

DEVAN RAMACHANDRAN JUDGE

¶98

¶99

WP(C).No.16 OF 2019(B)

¶100

¶101

APPENDIX

¶102

PETITIONER'S/S EXHIBITS:

¶103

EXHIBIT P1	TRUE COPY OF THE TAX RECEIPT DATED 10.05.2018 FOR THE YEAR 2018-19 ISSUED BY THE VILLAGE OFFICER, KODAKARA.
EXHIBIT P2	TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KODAKARA.
EXHIBIT P3	TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT ALONG WITH THE PLANS APPROVED BY THE DISTRICT TOWN PLANNER.
EXHIBIT P4	TRUE COPY OF THE RECEIPT DATED 28.04.2017 ACKNOWLEDGING RECEIPT OF THE APPLICATION AND PAYMENT OF APPLICATION FEE FOR BUILDING PERMIT.
EXHIBIT P5	TRUE COPY OF THE N FORM DATED 07.07.2017.
EXHIBIT P6	TRUE COPY OF THE INFORMATION RECEIVED UNDER RIGHT TO INFORMATION ACT FROM THE VILLAGE OFFICER, KODAKARA DATED 23.05.2018.
EXHIBIT P7	TRUE COPY OF THE ORDER NO.C1/3380/2017/D.DIS DATED 03.01.2018 ISSUED BY THE DISTRICT TOWN PLANNER, THRISSUR.
EXHIBIT P8	TRUE COPY OF THE ORDER DATED 15.12.2017 ISSUED BY THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES, PALAKKAD.
EXHIBIT P9	TRUE COPY OF THE NOTICE DATED 26.02.2018 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P9 A	TRUE COPY OF THE NOTICE DATED 24.03.2018 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P10	TRUE COPY OF THE STATEMENT SUBMITTED BY THE VICAR OF THE PETITIONER
EXHIBIT P11	TRUE COPY OF THE JUDGMENT DATED 1/8/2018 PASSED BY THIS HON'BLE COURT IN WP(C) NO.17260/2018
EXHIBIT P12	TRUE COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE DATED 20-10-2018

¶104

WP(C).No.16 OF 2019(B)

¶105

¶106

EXHIBIT P13	ORDER NO. C8-2029/2018 DATED 3/12/2018 PASSED BY THE 3RD RESPONDENT
EXHIBIT P14	TRUE COPY OF THE SALE DEED BEARING NO.2039/1/2019. TRUE COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE DATED 09/09/1980 OBTAINED BY THE PETITIONER ON 20/10/2018. (IN IA 1/2019)
EXHIBIT P15	TRUE COPY OF THE SALE DEED BEARING NO.2041/1/2019. THE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE JOSE JOMON, TO THE KODAKARA POLICE STATION. TRUE COPY OF THE SKETCH SHOWING THE DISTANCE BETWEEN THE PROPOSED CHURCH AND THE RESPONDENT NOS. 6 AND 7 PROPERTY AND RESIDENCE.
EXHIBIT P16	TRUE COPY OF THE SALE DEED BEARING NO.2041/1/2019. THE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE THOMAS LINOJ, TO THE KODAKARA POLICE STATION.
EXHIBIT P17	TRUE COPY OF THE TAX RECEIPT DATED 14/10/2019. TRUE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE CHINNAN RAPAI PAUL TO THE KODAKARA POLICE STATION.
EXHIBIT P18	THE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE CHINNAN RAPPAI WILSON, TO THE KODAKARA POLICE STATION.
EXHIBIT P19	THE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE LONAPPAN JOBY, TO THE KODAKARA POLICE STATION.
EXHIBIT P20	THE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE DEVASY ANTHONY, TO THE KODAKARA POLICE STATION.
EXHIBIT P21	THE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE THOMAS SHAJU, TO THE KODAKARA POLICE STATION.
EXHIBIT P22	THE PHOTOSTAT COPY OF THE CONSENT LETTER DATED NIL SUBMITTED BY THE SR. ROSA MARIA, TO THE KODAKARA POLICE STATION.

¶107

WP(C).No.16 OF 2019(B)

¶108

¶109

EXHIBIT P23 THE PHOTOSTAT COPY OF THE STATEMENT FILED BY THE 6TH RESPONDENT DATED NIL BEFORE THE KODAKARA POLICE STATION. EXHIBIT P24 THE PHOTOSTAT COPY OF THE STATEMENT FILED BY THE 7TH RESPONDENT DATED NIL BEFORE THE KODAKARA POLICE STATION. EXHIBIT P25 THE PHOTOSTAT COPY OF THE STATEMENT DATED 23/12/2017 SUBMITTED BY THE TAHSILDAR, CHALAKUDY TO THE DISTRICT COLLECTOR, THRISSUR. EXHIBIT P26 THE PHOTOSTAT COPY OF THE REPORT NO.382/TDR/D4/2017 DATED NIL SUBMITTED BY THE SUB INSPECTOR, KODAKARA POLICE STATION, TO THE DEPUTY POLICE SUPERINTENDENT, CHALAKDUY. RESPONDENT'S/S EXHIBITS: NIL

¶110

¶111

//TRUE COPY// CA TO JUDGE

Deva Matha Church, v. Kodakara Grama Panchayat

Case brief

What is this about?

What did the court decide?

Deva Matha Church, v. Kodakara Grama Panchayat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Paulson Paulose Vs State of Kerala

Dennis Cyriac Vs the Secretary

Francis V.J. Vs State of Kerala

K.K.Shameer, Vs the Secretary

Dr.Sadu.T.Kunjummen, Vs the Revenue Divisional Officer

Aster DM Health Care (Trivandrum) Pvt. Ltd. Vs State of Kerala Represented by the Secretary