Fr. Joseph Varanathu and Michael N. P. v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ## **`THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945`** ## **`WP(C) NO. 1580 OF 2021`** ## **`PETITIONERS:`** - **`1 FR.JOSEPH VARANATHU, AGED 60 YEARS VICAR, SAINT GEORGE CHURCH, MALOM , MALOTH VILLAGE, VALLIKKADAVU THALUK, KASARGOD DISTRICT PIN-671 534.`** - **`2 MICHAEL N P AGED 63 YEARS`** - **`SON OF PHILIP N D, NJONDIMAKKAL HOUSE, MALOM, MALOTH VILLAGE, VALLIKKADAVU POST, VELLARIKUNDU THALUK, KASARGOD DISTRICT-671 534. BY ADV V.SETHUNATH`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM, PIN-695 001.`** - **`2 DISTRICT COLLECTOR KASARGODE, COLLECTORATE, KASARAGODE, PIN-671 121.`** - **`3 THE SUB COLLECTOR, (REVENUE DIVISIONAL OFFICER), KANHANGAD SUB DIVISION, KANHANGAD, PIN-671 315.`** - **`4 THE TAHSILDAR VELLARIKUNDU,TALUK OFFICE, VELLARIKUNDU, KASARGODE, PIN-671 533.`** - **`5 THE VILLAGE OFFICER MALOTH VILLAGE OFFICE, MALOM, PIN-671 533.`** - **`6 BALAL GRAMA PANCHAYAT REPRESENTED BY THE SECRETARY, BALAL P O, VIA PARAPPA, KASARGOD DISTRICT -671 533. BY ADVS.DEVISHRI R. ADVOCATE GENERAL OFFICE KERALA SMT.SHIBA M SAMUEL`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 1580 OF 2021 ``` ``` 2 ``` ## BECHU KURIAN THOMAS, J ......…............................................. W.P.(C).No.1580 of 2021 …................................................ Dated this the 9[th] day of November, 2023 ## JUDGMENT Petitioners challenge an order issued by the District Collector imposing a fine of Rs.9,17,000/- on them under Section 107 of the Kerala Panchayat Building Rules, 2019. The reason for imposing the fine is the construction of a parish hall and Sunday School building without getting sanction from the District Collector. The consequential order directing demolition of the building for non-payment of fine is also challenged. 2. The St. George Church at Malom is situated within an extent of around 9 Acres of land in re-survey No.147/7A of a remote village called Malom at Kasargod. Apart from the church, there was an old parish hall wherein Sunday School classes used to be conducted. In the year 2017, the parish members decided to reconstruct the old parish hall. On a ``` WP(C) NO. 1580 OF 2021 ``` ``` 3 ``` wrong assumption that the building rules are not applicable to the area, petitioners commenced reconstruction of the parish hall. However, immediately on realizing that a permit is required, an application for building permit was submitted to the Panchayat on 03.01.2018. Simultaneously, an application was filed before the District Collector seeking permission contemplated under the ‘Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005’, on an assumption that a Sunday School building required such permission. 3. On receipt of the application submitted by the petitioners, the Panchayat forwarded the building plan and accompanying records to the District Collector, Kasaragod. At the same time, by Ext.P7 dated 17.02.2018, Panchayat resolved to permit construction of the Parish Hall-cumSunday School, subject to the orders of the District Collector. 4. In the meantime, the Village Officer submitted a report to the District Collector stating that there is no objection from ``` WP(C) NO. 1580 OF 2021 ``` ``` 4 ``` any quarters for grant of permission for the intended construction. While so, the building tax for the parish hall was assessed on 26.09.2018 indicating that while the application for NOC from the District Collector was pending consideration, petitioners had proceeded with the construction and completed the Parish Hall-cum-Sunday School. 5. On noticing that the District Collector had not granted NOC, a stop memo was issued by the Panchayat directing the petitioner to stop the construction. Immediately, petitioner requested the District Collector to hasten the proceedings for grant of NOC. The Panchayat also issued a letter on 19.06.2019 to the District Collector requesting for an early decision on the application for NOC. 6. Despite repeated requests, since the District Collector failed to process the application for NOC the first petitioner submitted a representation to the Minister for Revenue, agreeing to avoid the intention to conduct Sunday School classes in the building and to confine it as an auditorium. ``` WP(C) NO. 1580 OF 2021 ``` ``` 5 ``` Immediately after the representation was submitted to the Minister, the District Collector issued Ext.P16 impugned order dated 08.08.2020 imposing an amount of Rs.9,17,000/- as fine in purported exercise of the power under Section 107 of the Kerala Panchayath Building Rules, 2019 (for short KPBR). Thereafter Ext.P18 order was also issued, directing demolition of the building for the failure to pay the amount of fine imposed. 7. Petitioners contend that the impugned orders have been issued by the District Collector without any authority in an arbitrary and unlawful manner. According to the petitioners, even if the construction was commenced without obtaining a building permit, it can be regularized under the building rules, however the District Collector has no authority under any circumstances to impose penalty. It was further pointed out that the construction of parish hall is not an activity that will fall under the purview of manual of guidelines and further that even the conduct of a Sunday school has been decided to be avoided in the parish hall, ``` WP(C) NO. 1580 OF 2021 ``` ``` 6 ``` and hence, the impugned orders are liable to be set aside as NOC is not required. 8. A counter affidavit has been filed by the second respondent pointing out that the panchayat had not granted permission for constructing the Parish Hall-cum-Sunday School, and therefore, the construction is unauthorized and that the church authorities failed to comply with the directions to stop the construction and a fine was imposed when they proceeded with the construction and started Sunday school classes in the building. It was further pleaded in the counter affidavit by the District Collector that the building is not presently used for any religious purpose and remains closed as per the report of the Secretary and that the impugned order has been issued after consideration of various records and connected cases. 9. The counter affidavit filed by the Panchayat also states that petitioners have already filed an application that they are not intending to use the building for any religious purposes but only as an auditorium and that it is in a remote area ``` WP(C) NO. 1580 OF 2021 ``` ``` 7 ``` having no sufficient infrastructure facilities especially places like auditorium or a public hall for the general public or for conduct marriages or social functions. It was also pointed out that grant of permission to convert the building to an auditorium is for the sake of public good and also that as per a notification, dated 14.02.2021; the power to sanction the building permit including those for religious purposes is with the Local Self Government and not with the District Collector. 10. I have considered the rival contentions advanced by Sri. V. Sethunath, the learned counsel for the petitioners as well as Smt. Devishri. R., the learned Government Pleader and Smt. Shiba M. Samuel, the learned Standing counsel for the Panchayat. 11. A reading of the impugned order Ext.P16 reveals that around the property of the Church having an extent of 2.42 hectares, there are no structures within a 50 meters distance. The District Police Chief in his report dated 23.03.2018 and the Sub Collector, Kanhangad, in his report ``` WP(C) NO. 1580 OF 2021 ``` ``` 8 ``` dated 04.02.2019 had specifically observed that none, including the neighbours had any objection to the construction. Even though all reports were in favour of granting permission to construct the Parish Hall-cum-Sunday School, curiously the District Collector withheld permission/NOC. The reason for the District Administration in unnecessarily delaying the consideration of the request for NOC is not decipherable from the documents produced. However, when viewed in the light of the submission that petitioners had surrendered 10 cents of land free of cost for setting up a village office, the delay raises doubts about the real reason for the District Collector in sitting on the application for more than thirty months. 12. The purpose of granting power to consider the grant of an NOC before permitting construction of a religious place is to explore whether there is any possibility of communal disharmony by the said construction. When the District Police Chief, the Sub Collector, the Village Officer and the Panchayat had not submitted any adverse report against the ``` WP(C) NO. 1580 OF 2021 ``` ``` 9 ``` construction of the Parish Hall-cum-Sunday School and had instead given positive reports about the said construction, the District Collector seems to have delayed granting NOC without any reason. 13. In this context, it needs to be observed that it fails all comprehension as to how Sunday School classes proposed to be conducted in a building would tantamount to the building becoming a religious place. Every place where a religious teaching is imparted would not necessarily make it a religious place. The Manual of Guidelines issued by the Government on 25.07.2008 deals with places of worship and prescribes that “any new construction of a place of worship shall be done only with the clearance of the District Administration”. Of course, the guideline also uses the term ‘religious place’. It is evident from the scope and purport of the guidelines that the term ‘religious place’ used in clause 21 of the Manual is synonymous with the term ‘place of worship’. Therefore, the place of conduct of a Sunday school cannot be regarded as a religious place or ``` WP(C) NO. 1580 OF 2021 ``` ``` 10 ``` place of worship. However, this Court need not elaborate on those aspects now since the petitioners themselves have withdrawn their claim to conduct the Sunday school in the parish hall and have agreed to treat it as an auditorium. 14. The question that arises in this context is regarding the jurisdiction of the District Collector to impose the penalty under Section 107 of KPBR. A reading of the provision itself is more than sufficient to arrive at the conclusion that there is no power vested upon the District Collector to impose any fine or penalty under the said provision. The power under Section 107 of KPBR, can be invoked only by the Secretary of the Panchayat. The District Collector has no authority of any nature to deal with an unauthorized construction or to impose a fine under Rule 107 of KPBR. 15. If in case there is any unauthorized construction, in the sense that the building has been constructed or commenced construction without permit, law permits regularization of such building as long as there is ``` WP(C) NO. 1580 OF 2021 ``` ``` 11 ``` compliance of building rules. The necessary application can be submitted to the Secretary of the local authority for regularization. When such a provision exists, imposition of fine as in Ext.P16, that too by the District Collector, is without any jurisdiction and is an abuse of the powers. 16. In this context, it is also worthwhile to observe that even if the petitioners intend to use the building for any religious purpose, they need not approach the District Collector any more, since the power is now vested with the local authority. Therefore, if in case the petitioners intend, in the future, to use the parish hall for any religious purposes, they need to obtain permission from the local authority and not from the District Collector. In the decision in Mohanan and Another v. District Collector and Others 2022 (1) KHC 441 a Division Bench of this Court had observed that the power to grant NOC for the establishment of a religious building, is vested with the Grama Panchayat and not with the District Collector, after the notification of 2021. 17. In view of the above discussions, the impugned order dated ``` WP(C) NO. 1580 OF 2021 ``` ``` 12 ``` 08.08.2020 (Ext.P16) and the order dated 30.12.2020 (Ext.P18) are without jurisdiction and an abuse of the authority of the 2[nd] respondent. The said orders are issued without comprehending the scope of authority vested in the District Collector under the Manual of Guidelines issued by the Government and are both perverse. Hence, the impugned orders Ext.P16 and Ext.P18 are quashed. The writ petition is allowed. BECHU KURIAN THOMAS JUDGE AMV/10/11/2023 ``` WP(C) NO. 1580 OF 2021 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 1580/2021`** ``` PETITIONER EXHIBITS EXHIBIT P1THE TRUE COPY OF THE RECEIPT ISSUED BY THE BALAL PANCHAYATH DTED 3.1.2018. EXHIBIT P2THE TRUE COPY OF THE APPLICATION DATED 3.1.2018 FILED BEFORE THE DISTRICT COLLECTOR. EXHIBIT P3THE TRUE COPY OF THE LETTER DATED 23/01/2018SUBMITTEDBYTHE SECRETARY, BALAL GRAMA PANCHAYAT OFFICE, FORWARDING THE BUILDING PLANS AND ACCOMPANYING RECORDS OF THE BUILDING OF THE ST.GEORGE CHURCH, MALOM TO THE DISTRICT COLLECTOR, KASARAGODE. EXHIBIT P4THE TRUE COPY OF THE FIRE SAFETY CLEARANCE FOR SITE DATED 29/01/2018 ISSUED BY THE DIVISIONAL OFFICER, FIR AND RESCUE SERVICES, KOZHIKODE. EXHIBIT P5THE TRUE COPY OF THE FORWARDING LETTER ISSUED BY THE OFFICE OF THE DISTRICT COLLECTOR DATED 5/2/2018 TO THESECRETARYTOTHEGRAMA PANCHAYATH. EXHIBIT P6THE TRUE COPY OF THE LETTER NO JC3 6030/17 DATED 22/02/2018 ISSUED BY THE SECRETARY, BALAL GRAMA PANCHAYATH OFFICE TO THE DISTRICT COLLECTOR, KASARAGODERESUBMITTINGTHE APPLICATION ALONG WITH DOCUMENTS AFTER CURING THE DEFECTS. EXHIBIT P7THETRUECOPYOFTHE RESOLUTION/DECISION NO 9 OF THE BALAL GRAMAPANCHAYATHPASSEDON 17/02/2018. EXHIBIT P8THE TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, MALOTH VILLAGETOTHETHAHSILDAR, VELLARIKUNDU TALUK DATED 09/07/2018. EXHIBIT P9THE TRUE COPY OF THE DEMAND NOTICE ISSUEDBYTHETHAHASILDAR VELLARIKUNDU DATED 26.09.2018. EXHIBIT P10THE TRUE COPY OF THE RECEIPT NO. KL 140410000112/2019 DATED 23.01.2019 ``` ``` WP(C) NO. 1580 OF 2021 ``` ``` 14 ``` ``` FOR RS 48,400/- ISSUED BY MALOTH VILLAGE OFFICE TO ST.GEORGE CHURCH FOR PAYMENT OF 1ST INSTALMENT OF THE BUILDING TAX DATED 23.01.2019. ``` ``` EXHIBIT P11THE TRUE COPY OF THE LETTER DATED 11.04.2019 ISSUED BY THE 1ST PETITIONER TO THE DISTRICT COLLECTOR. EXHIBIT P12THE TRUE COPY OF THIS LETTER DATED 19/06/2019 ISSUED FROM THE BALAL GRAMA PANCHAYATH OFFICE TO THE DISTRICT COLLECTOR, KASARAGODE. EXHIBIT P13THE TRUE COPY OF THE LETTER DATED 20.02.2020 SUBMITTED BY THE VICAR, ST GEORGE CHURCH, MALOM TO THE DISTRICT, COLLECTOR, KASARAGODE. EXHIBIT P14THE TRUE COPY OF THE LETTER ISSUED BY THEDISTRICTCOLLECTORDATED 18/03/2020 TO THE BALAL GRAMA PANCHAYATH. EXHIBIT P15TRUE COPY OF THE LETTER ISSUED BY THE 1ST PETITIONER DATED 03/08/2020 TO THE HON'BLE MINISTER FOR REVENUE, GOVT. OF KERALA. EXHIBIT P16THE TRUE COPY OF THE ORDER NO KDIS- KSGD/7622/2018/DIDATED8/8/2020 ISSUED BY THE DISTRICT COLLECTOR. EXHIBIT P17TRUE COPY OF THE FORWARDING LETTER ISSUED BY THE SECRETARY TO THE BALAL GRAMA PANCHAYATH DATED 13/08/2020. EXHIBIT P18TRUE COPY OF THE ORDER ISSUED BY THE DISTRICT COLLECTOR DATED 30.12.2020. RESPONDENTS EXHIBITS EXHIBIT R6(a)TRUE COPY OF THE LETTER DATED 02.11.2020. ``` ``` EXHIBIT R6(b)TRUE COPY OF G.O.(P) NO.19/2021 HOME THIRUVANANTHAPURAM DATED 14.02.2021. EXHIBIT R6(c)TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 10.05.2021 EXHIBIT R6(d)TRUE COPY OF REPLY. EXHIBIT R2(a)TRUECOPYOFTHEG.O.(P) NO.217/05/HOME DATED 25.07.2005. ``` TRUE COPY