Dismissed

M.a.Kareem v. the Vayalar Gramapanchayat, Represented by Its Secretary

Kerala HC3 Nov 2022WP(C)/23898/2022

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition regarding the construction of a mosque. The Court observed an interim stay on certain Government Orders entrusting permission to local bodies, finding the legal issues complex due to sovereign functions. It directed the District Collector to consider the building permit application. No道教-religious-benefits

What did the court decide?

Injunction staying operations of Ext.P8 and Ext.P11; Direction to District Collector to consider building permit within two months.

M.a.Kareem Vs the Vayalar Gramapanchayat… — Pension and Retirement Benefits | Kerala HC (2022)

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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 N.NAGARESH

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THURSDAY, THE 3RD DAY OF NOVEMBER 2022 /

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 12TH KARTHIKA, 1944

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WP(C) NO. 23898 OF 2022

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PETITIONER

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M.A.KAREEM
AGED 74 YEARS
S/O.MOHAMMED, S/O. MOHAMMED, PRESIDENT MASJID
UL ARSH ,MOHAMMED MANZIL,KALAVANKODAM P.O,
KADKKARAPPALLY, ALAPPUZHA

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 PIN - 688524

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BY ADV JOBY CYRIAC

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RESPONDENTS

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1 THE VAYALAR GRAMAPANCHAYAT, REPRESENTED BY ITS SECRETARY

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VAYALAR P.O, CHERTHALA, ALAPPUZHA,
 PIN - 688536

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2 THE SECRETARY

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VAYALAR GRAMAPANCHAYAT, VAYALAR P.O,
CHERTHALA, ALAPPUZHA, PIN - 688536

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3 KERALA STATE WAKF BOARD, REPRESENTED BY DIVISIONAL OFFICER REGIONAL OFFICE, NEAR RAILWAY STATION, CHERUKARAKUNNU, CHANGANASSERY,

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KOTTAYAM, PIN - 686101

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ADDL.R4DISTRICT COLLECTOR, ALAPPUZHA
COLLECTORATE, ALAPPUZHA-688001.
(ADDITIONAL R4 IMPLEADED AS PER ORDER DATED
2-9-2022 IN IA NO.1/2022).

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W.P(C) No.23898 of 2022 ]

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BY ADVS.
BRIJESH MOHAN
Jamsheed Hafiz
JOBY CYRIAC
R.RAJPRADEEP

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OTHER PRESENT:

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SMT.DEEPA NARAYANAN SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P(C) No.23898 of 2022 ]

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J U D G M E N T

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Dated this the 3^rd day of November, 2022

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The petitioner states that a Mosque which is situated in the 1^st respondent-Grama Panchayat was taken over by the National Highways Authority for widening National Highway-66. The petitioner is the President of the Mosque.

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The local people decided to construct a new Mosque in the land adjacent to the acquired property. The petitioner submitted Ext.P2 application for Building Permit. Inspite of expiry of statutory period, no orders are passed on Ext.P2 application.

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When the petitioner made enquiries, the Panchayat Authorities informed that they are waiting for NOC from the District Collector, Alappuzha, in view of a Government Order dated 25.07.2005.

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W.P(C) No.23898 of 2022 4 ]

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The petitioner would submit that in view of Ext.P3 judgment, no prior permit is required from District Authorities to grant Building Permit for construction of any place of religious worship. It is purely within the competence of the Local Self Government Authorities, contends the petitioner.

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Standing Counsel representing respondents 1 and 2 submitted that since this Court has passed an interim order in W.P.(C) No.11776 of 2021 staying the operation of Exts.P8 and P11 Government Orders therein, now the Local Self Government Institutions are not in a position to take a decision in the matter. However, if the District Administration grants permission, respondents 1 and 2 have no objection in processing the Building Permit application of the petitioner.

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I have heard the learned counsel for the petitioner, the respective learned Standing Counsel representing respondents 1, 2 and 3 and the learned Government Pleader representing the 4^th respondent.

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W.P(C) No.23898 of 2022 5 ]

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As per the Government Orders issued in the year 2005, Guidelines were framed for maintaining communal harmony and it was directed by the Government in the Guidelines that before making any construction or reconstruction of places of worship, the persons resorting to construction shall obtain prior sanction from the District Administration. Subsequently, the Government issued orders entrusting the task of granting permission to construct places of worship to the Local Self Government Authorities.

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In W.P(C) No.11776 of 2021, this Court has passed an interim order as follows:

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“Construction of religious places of worship has been often causing communal tensions and law and order situation. The Government of Kerala hence framed Ext.P10 Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005. Paragraphs 23 and 23(a) of Ext.P10 Guidelines read as follows:-

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“23. Any construction of religious place should be made only with prior approval of the District Authorities and at the earmarked place. Cases of construction of unauthorised religious places should be dealt with severely under existing laws. Negligence on the part of the District Administration in implementing this direction should be seriously viewed and the guilty dealt

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W.P(C) No.23898 of 2022 ]

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with.

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23 (a) (i) Renovation of existing places of worship can be undertaken after informing the matter to the District Administration. However, any addition or expansion to the existing structure should be done only with the previous permission and concurrence of the District Administration. This addition or expansion should not in any way cause any inconvenience to the public, should not obstruct traffic, should not be an impediment to the future expansion of roads and other public amenities. Any addition or expansion can be undertaken only with observing the building rules and with the prior permission of Town Planning Department of Local Self Government, as the case may be.

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(ii) Any new construction of a place of worship shall be done only with the clearance of the District Administration. Any religious activities come around a newly established places of worship should not precipitate communal tension or law and order situation. Before sanctioning requests for construction of new places of religious worship, the District Administration should ensure this. In such cases, the District Administration may take recourse to shift the places of worship after arriving at a consensus with the parties concerned.”

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A reading of Ext.P10 would show that the clearance to be given by the District Administration would be based on intelligence input received by the District Administration. Gathering of intelligence/information is important in granting such clearance. Now, the said Government Order has been amended as per Ext.P11. Paragraphs 23, 23(a)(i) and 23(a)(ii) of Ext.P10 Guidelines have been amended by Ext.P11 Government Order, wherein the power to grant clearance hitherto exercised by the District Administration has been entrusted with the Local Self Government Authorities.

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W.P(C) No.23898 of 2022 7 ]

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Article 243G of the Constitution of India governs the powers, authority and responsibilities of Panchayats and Schedule 11 of the Constitution of India covers topics to be entrusted to the Panchayat Institutions. Gathering of intelligence information and policing, are not included in Schedule 11.

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Section 174 of the Kerala Panchayat Raj Act empowers the State Government to delegate any of its function to the Panchayat Institutions. However, in the light of Article 243G and Schedule 11 of the Constitution of India and even otherwise, whether the State Government can delegate essential sovereign function like gathering of intelligence information to the Panchayat Institutions, is an important issue arising in this writ petition. Prima facie, that is what has been done as per Ext.P11.

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In such circumstances, this Court finds that the legal issues arising in this writ petition are important and are to be looked into and heard in detail. Therefore, pending the writ petition, there will be an interim order staying the operation of Ext.P8 and Ext.P11 Government Order pending disposal of the writ petition. However, it is made clear that respondents 5 to 24 will be at liberty to proceed with the proposed construction in accordance with law, after obtaining clearance from the District Administration, pending the writ petition.

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In view of the afore interim order, as Exts.P8 and P11 stand stayed, the Authority to give prior sanction for construction of place of worship is the District Administration.

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Therefore, the writ petition is disposed of directing the additional 4^th respondent-District Collector to consider Ext.P2

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W.P(C) No.23898 of 2022 8 ]

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application submitted by the petitioner and forwarded by the Panchayat authorities and take appropriate decision thereon in accordance with law, within a period of two months.

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Sd/-

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N. NAGARESH, JUDGE

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smm

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W.P(C) No.23898 of 2022 ]

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APPENDIX OF WP(C) 23898/2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE EVICTION MAHAZAR
BEARING LAC NO.567/19 DATED 10-11-2021.
Exhibit P2TRUE COPY OF THE APPLICATION FOR
BUILDING PERMIT DATED 25-10-22.
Exhibit P2(a)TRUE COPY OF THE RECEIPT ISSUED BY THE
2ND RESPONDENT IN REGARD OF THE
APPLICATION
Exhibit P3JUDGMENT DATED 18-01-2022 IN
WP(C).NO.12767/2021
Exhibit P4TRUE COPY OF THE LETTER BEARING
NO.C3.3953/2021 DATED 10.01.2022 ISSUED
BY THE 2ND RESPONDENT.

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RESPONDENT EXHIBITS

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Exhibit R2(A)TRUE COPY OF THE NOC GRANTED BY THE
NATIONAL HIGHWAY AUTHORITY TO THE
PETITIONER
Exhibit R2(B)TRUE COPY OF THE LETTER GIVEN BY THE
DISTRICT COLLECTOR TO THE 2ND RESPONDENT
DATED 24/01/2022

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PETITIONER EXHIBITS
Exhibit P5TRUE COPY OF THE INTERIM ORDER DATED 07-
07-2021 ANOTHER WRIT PETITION I.E., WPC
NO. 11776/2021 OF THIS HON'BLE COURT.

M.a.Kareem v. the Vayalar Gramapanchayat, Represented by Its Secretary

Case brief

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What did the court decide?

M.a.Kareem v. the Vayalar Gramapanchayat, Represented by Its Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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