J. Justus Banuel and D. Christudas v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ## **`WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946`** ## **`WP(C) NO. 27115 OF 2015`** ## **`PETITIONERS:`** - **`1 J.JUSTUS BANUEL, AGED 69 YEARS,`** ``` CHAIRMAN, CALVARY BAPTIST FOUNDATION, KOLVEL, KARUPPAVILAI, THIRUVATTAR VILLAGE, THIRUVARAMBU DESOM, THIRUVARAMBU P.O., KALKULAM TALUK, KANYAKUMARI DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, D.CHRISTUDAS, S/O.DANIEL, RLRA - 53, RADHA KRISHNAN LANE, VAZHAILA, PEROORKADA, THIRUVANANTHAPURAM, PIN - 695 005. ``` - **`2 D.CHRISTUDAS, S/O.DANIEL, RLRA - 53, RADHA KRISHNAN LANE, VAZHAILA, PEROORKADA, THIRUVANANTHAPURAM, PIN - 695 005.`** - **`BY ADVS. D.KISHORE ACHUTH KYLAS MEERA GOPINATH(K/001803/1999.) R.MURALEEKRISHNAN (MALAKKARA)(K/000583/2008)`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.`** - **`2 THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM, KUDAPPANAKUNNU, PIN - 695 043.`** - **`3 THE VILLAGE OFFICER, PEROORKADA VILLAGE OFFICE, THIRUVANANTHAPURAM, PIN - 695 005.`** - **`4 MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695 033.`** - **`5 CHIEF OF POLICE, POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695 014.`** - **`6 THE SUB INSPECTOR OF POLICE, VATTIYURKAVU POLICE STATION, VATTIYURKAVU, THIRUVANANTHAPURAM, PIN - 695 013.`** WP(C) NO. 27115 OF 2015 2 ``` 7ANIL KUMAR T, BATHELBHAVAN, KAVADITHALAKKAL, TC 32/2175, MANIKANDESWARAM P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL SRI. SUMAN CHAKRAVARTHY SRI.K.A.ANAS SRI.P.N.SUKUMARAN N. NANDAKUMARA MENON (SR.) SRI.K.A.JALEEL ADDL. ADVOCATE GENERAL SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION SMT.THUSHARA JAMES, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 27115 OF 2015 3 ## JUDGMENT Petitioners have approached this Court challenging Exts.P3, P14, P19 and P20 orders and seeking a direction to the 2[nd] respondent to permit the petitioners to conduct prayers in the building situated in Re.Sy.No.159/28 of Peroorkada Village in the light of Exts.P8 and P8(a). The brief facts are as follows:- The 1[st] petitioner purchased 10 cents of land in Re.Sy.No.159/28 of Block No.23 of Peroorkada Village in Thiruvananthapuram District. The 1[st] petitioner is the Chairman of the Calvary Baptist Foundation and the 2[nd] petitioner is a Pastor who has been conducting prayers in the house in question every Sunday between 8.00 a.m and 11.00 a.m and every Fridays between 11.00 a.m to 01.00 p.m for more than 7 years. According to the petitioners, the prayers are conducted without causing any kind of disturbance to the public. The petitioners submitted Ext.P2 plan for making certain modifications to the residential house. On 02.07.2014, the 3[rd] respondent issued Ext.P3 stop memo calling upon the petitioners to cease activities leading to noise pollution. This was stated to be on the basis of the instructions issued by the 2[nd] WP(C) NO. 27115 OF 2015 4 respondent / District Collector. The petitioners submitted Exts.P4 and P6 representations before the District Collector. However, no orders were passed thereon. By Ext.P7 judgment in W.P.(C)No.26450 of 2014, this Court directed the Pollution Control Board to consider whether the petitioners can be permitted to use loud speakers for conducting prayer and further directed the concerned Deputy Superintendent of Police to consider the application for permission to use loud speakers on the basis of the orders to be issued by the Pollution Control Board. The 2[nd] petitioner filed R.P.No.87/2015 and this Court by Ext.P9 order on R.P.No.87/2015 also directed the District Collector to consider an application for permission to conduct prayers in terms of the provisions contained in the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005 (hereinafter referred to as ‘the Manual). The 1[st] petitioner submitted Ext.P13 application for regularization of additional construction before the Corporation. This Court by Ext.P15 judgment directed the consideration of the said application for regularization. By Ext.P19 order, the Municipal Corporation rejected the application filed by the 1[st] petitioner principally on the ground WP(C) NO. 27115 OF 2015 5 that to conduct prayers, the occupancy must be assembly occupancy and not residential occupancy. It is also stated that the application cannot be considered as the 1[st] petitioner had not produced a No Objection Certificate from the District Collector in terms of the Manual. This order of the Municipal Corporation is dated 28.06.2015. On the petitioners approaching the District Collector by Ext.P20 order dated 20.07.2015 rejected the application also for the reason that the petitioners had not obtained a building permit from the Thiruvananthapuram Corporation. It is thus that the petitioners are before this Court challenging Exts.P3 (stop memo), P14 (Demolition notice issued by the Corporation), P19 (order of the Municipal Coproration) and P20 (proceedings of the District Collector). 2. The learned counsel appearing for the petitioners would submit that the petitioners are now being made to run from pillar to post to enable them to use the property in question as a place for conducting worship. It is submitted that while the Corporation is taken the stand that no NOC had been obtained from the District Collector, the District Collector has taken the stand that no building permit had been obtained from the Corporation to construct / renovate the building. It is WP(C) NO. 27115 OF 2015 6 submitted that while in terms of Rule 5(4) of the Kerala Municipality Building Rules, 2019(hereinafter referred to as ‘the 2019 Rules’), the Corporation may insist for a No Objection Certificate from the District Authority for the purpose of considering the application for building permit, the District Collector ought not have rejected the application filed by the petitioners for NOC on the ground that a building permit had not been obtained from the Corporation. In other words, it is submitted that a reading of Rule 5(4) of the 2019 Rules clearly indicates that the petitioners are entitled to approach the District Collector for an NOC under the provisions of the Manual even before filing an application for building permit under the 2019 Rules. 3. The learned Senior Government Pleader submits that the District Collector had taken into consideration several aspects while deciding to deny a No Objection Certificate to the petitioners. It is submitted that the fact that there was no building permit is only one of the aspects considered by the District Collector in Ext.P20. However, it is not disputed that going by the terms of Rule 5(4) of the 2019 Rules, it is open to the petitioners to approach the District Collector for an NOC WP(C) NO. 27115 OF 2015 7 even before filing an application for building permit. 4. The learned counsel appearing for the Municipality would submit that if the NOC from the District Authority is given, the Municipality will consider the application for building permit / application for change of occupancy in accordance with the Rules. 5. The learned counsel appearing for the 7[th] respondent would submit that the petitioners cannot convert a residential building into a prayer hall without obtaining permission under the provisions of the Manual. It is submitted that even for change of occupancy the provisions of the Manual had to be followed as held by this Court in Noorul Islam Samskarika Sangam v. District Collector [2022 SCC Online Ker 4261]. Having heard the learned counsel for the petitioners, the learned Senior Government Pleader, the learned counsel appearing for the Municipal Corporation and the learned counsel appearing for the 7[th] respondent, I am of the view that this writ petition can be disposed of directing the 2[nd] respondent to consider any application that may be submitted by the petitioners for permission to use the residential building 8 WP(C) NO. 27115 OF 2015 situated in Re.Sy.No.159/28 in Peroorkada Village in Thiruvananthapuram District for the purpose of conducting prayers, strictly in terms of the Manual. I am inclined to so direct in the light of the fact that a reading of Rule 5(4) of the 2019 Rules indicate that an application for building permit shall be filed accompanied by an NOC from the District Authority and where the application is not accompanied by such NOC, the Secretary shall refer the matter to the District Authority. The wording of Rule 5(4) of the 2019 Rules indicates that even before obtaining a building permit or permission for change of occupancy from the Municipal Corporation, it is open to the petitioners to apply to the District Authority for NOC in terms of the provisions contained in the Manual. This is also the law laid down in the judgment of this Court in Noorul Islam Samskarika Sangam (supra), where it was held as follows:- “10. A reading of the above Clauses will show that the permission from the District Authorities are necessary only for the construction of religious place and renovation of an existing place of worship. Here is a case where the petitioner wants to change the occupancy. A strict reading of Clause 23 and 23(a)(i) of the Manual of Guidelines will show that, even for a change of occupancy, the permission from district authorities (now after the amendment, from the WP(C) NO. 27115 OF 2015 9 Local Self Government Authorities) is necessary. If such an interpretation is not given, anybody can construct a building in one category and thereafter change the occupancy to Group D for religious purpose without the approval from the District Authorities or from the Local Self Government Authorities. Therefore, it is declared that, even for a change of occupancy of a building to a religious place, the Manual of Guidelines is applicable and the approval from the competent authority as per the Manual of Guidelines is necessary.” It is therefore clear that the provisions of the Manual will apply even in the case where a change of occupancy is sought from the Municipal Corporation. If the 2[nd] respondent were to issue a No Objection Certificate to the petitioners in terms of the provisions of the Manual, the Municipality shall consider any application for change of occupancy / fresh building permit in accordance with the provisions contained in the 2019 Rules. The 2[nd] respondent shall consider the application strictly in terms of the provisions contained in the Manual and without considering the fact that the petitioners are yet to obtain a building permit / change of occupancy from the Municipality. The 2[nd] respondent shall afford an opportunity of hearing to the petitioners and to the 7[th] respondent before taking a decision on the application to be submitted by the petitioners. The WP(C) NO. 27115 OF 2015 10 petitioners shall submit a fresh application before the 2[nd] respondent for NOC in terms of the provisions contained in the Manual within a period of two weeks from the date of receipt of a certified copy of this judgment. The 2[nd] respondent shall take a decision on the application to be submitted by the petitioners within a period of two months from the date of submission of the application. I make it clear that I have not expressed any opinion on the merits of the matter and it will be open to the 2[nd] respondent to consider the matter, in accordance with law. Sd/GOPINATH P. JUDGE DK WP(C) NO. 27115 OF 2015 11 ## **`APPENDIX OF WP(C) 27115/2015`** ``` PETITIONER EXHIBITS EXHIBIT P1. TRUE COPY OF THE 1ST PETITIONER'S POWER OF ATTORNEY IN FAVOUR OF D.CHRISTUDAS, THE 2ND PETITIONER. EXHIBIT P1(A). TRUE COPY OF THE TRUE COPY OF THE AUTHORIZATIONLETTERDATED 04.05.2010. EXHIBIT P2. TRUE COPY OF THE PLAN ACCORDING TO WHICH THE CONSTRUCTION IS CARRIED OUT. EXHIBIT P3. TRUE COPY OF THE ORDER DATED 02.07.2014 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4. TRUE COPY OF THE REPRESENTATION DATED 14.07.2014SUBMITTEDBYTHE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5. TRUE COPY OF THE NOTICE DATED 23.07.2014,ISSUEDTOTHE PETITIONERS. EXHIBIT P6. TRUE COPY OF THE REPRESENTATION DATED 24.09.2014. EXHIBIT P6(A). TRUE COPY OF THE RECEIPT DATED 25.09.2014 ISSUED TO THE PETITIONER UPON RECEIVING EXT.P6. EXHIBIT P7. TRUE COPY OF THE JUDGMENT DATED 13.10.2014. EXHIBIT P8. TRUE COPY OF THE CERTIFICATE DATED 05.12.2014 ISSUED BY THE POLLUTION CONTROL BOARD TO THE 2ND PETITIONER. EXHIBIT P8(A). TRUE COPY OF THE CERTIFICATE ISSUED BY THE POLLUTION CONTROL BOARD DATED 05.12.2014 TO THE SUB INSPECTOR OF POLICE. EXHIBIT P9. TRUE COPY OF THE ORDER DATED 18.02.2015 IN R.P.NO.87/2015. EXHIBIT P10. TRUE COPY OF THE LETTER HAVING ENDORSEMENT DATED 20.03.2015. EXHIBIT P11. TRUE COPY OF THE MEMORANDUM OF ADDITIONAL REPRESENTATION DATED NIL SUBMITTED ON 26.03.2015 BY THE 2ND PETITIONER. EXHIBIT P12. TRUE COPY OF THE OBJECTION DATED 22.04.2015 FILED BY 7TH RESPONDENT. ``` WP(C) NO. 27115 OF 2015 12 |**`EXHIBIT P13.`**|**`TRUE COPY OF THE APPLICATION`**|**`DATED`**| |---|---|---| ||**`07.10.2014 SUBMITTED BEFORE THE 2ND`**|| ||**`RESPONDENT FOR REGULARISATION OF THE`**|| ||**`CONSTRUCTION.`**|| |**`EXHIBIT P14.`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**|**`ORDER`**| ||**`NO.492/AS/6250/2014 DATED 15.12.2014.`**|| |**`EXHIBIT P15.`**|**`TRUE COPY OF THE JUDGMENT `**|**`DATED`**| ||**`02.02.2015 IN WP(C)NO.3170/2015.`**|| |**`EXHIBIT P16.`**|**`TRUE COPY OF THE NOTICE `**|**`DATED`**| ||**`21.04.2015 ALONG WITH THE COMPLAINT`**|| ||**`FILED BEFORE THE LOCAL `**|**`SELF`**| ||**`GOVERNMENT OMBUDSMAN.`**|| |**`EXHIBIT P17.`**|**`TRUE COPY OF THE NOTICE `**|**`DATED`**| ||**`10.04.2015 ISSUED BY THE `**|**`2ND`**| ||**`RESPONDENT.`**|| |**`EXHIBIT P18.`**|**`TRUE COPY OF THE RECEIPT `**|**`DATED`**| ||**`29.04.2015 ISSUED BY THE `**|**`4TH`**| ||**`RESPONDENT TO THE 2ND PETITIONER.`**|| |**`EXHIBIT P18(A).`**|**`TRUE COPY OF THE LATEST LAND TAX`**|| ||**`RECEIPT DATED 27.04.2015 SUBMITTED BY`**|| ||**`THE 2ND PETITIONER.`**|| |**`EXHIBIT P18(B).`**|**`TRUE COPY OF HTE POSSESSION`**|| ||**`CERTIFICATE`**<br>**`DATED`**<br>**`27.04.2015`**|| ||**`SUBMITTED BY THE 2ND PETITIONER.`**|| |**`EXHIBIT P19.`**|**`TRUE COPY OF THE ORDER `**|**`DATED`**| ||**`28.06.2015 ISSUED BY THE `**|**`4TH`**| ||**`RESPONDENT.`**|| |**`EXHIBIT P20.`**|**`TRUE COPY OF THE ORDER `**|**`DATED`**| ||**`20.07.2015 ISSUED BY THE `**|**`2ND`**| ||**`RESPONDENT.`**|| |**`EXHIBIT P21.`**|**`TRUE COPY OF THE REPORT OF SI OF`**|| ||**`POLICE,`**<br>**`VATTIYORKAVU`**|**`DATED`**| ||**`01.12.2014.`**|| |**`EXHIBIT P21(A).`**|**`TRUE COPY OF THE REPORT OF `**|**`THE`**| ||**`VILLAGE OFFICER, PEROORKADA `**|**`DATED`**| ||**`26.06.2015.`**|| |**`EXHIBIT P22.`**|**`TRUE COPIES OF THE AFFIDAVITS`**|**`DATED`**| ||**`06.10.2014`**<br>**`FILED`**<br>**`BEFORE`**|**`THE`**| ||**`HONOURABLE HIGH COURT OF KERALA IN`**|| ||**`R.P.87/2015 IN WP(C)26450/2015.`**|| |**`EXHIBIT P23.`**|**`TRUE COPY OF THE REPRESENTATION`**|**`DATED`**| ||**`04.07.2015 SUBMITTED BY THE `**|**`2ND`**| ||**`PETITIONER.`**|| |**`EXHIBIT P24.`**|**`THE TRUE COPY OF THE POSSESSION`**|| ||**`CERTIFICATE ISSUED BY THE `**|**`4TH`**| ||**`RESPONDENT TO THE PETITIONERS`**|**`DATED`**| WP(C) NO. 27115 OF 2015 13 ## **`30.03.2019`** ``` EXHIBIT P25THE TRUE COPY OF LAND TAX RECEIPT PAID BY THE PETITIONER DATED 17.09.2019. ``` ``` RESPONDENTS EXHIBITS EXHIBIT R7(A)TRUE COPY OF THE APPLICATION SUBMITTED BY THE 7TH RESPONDENT BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. ``` ``` EXHIBIT R7(B)TRUE COPY OF THE ORDER DATED 05.12.2014 PASSED BY THE POLLUTION CONTROL BOARD ``` ``` EXHIBIT R7(C)TRUE COPY OF THE OBJECTION FILED BY THE 7TH RESPONDENT ON 07.04.2015 BEFORE THE EXECUTIVE ENGINEER, CORPORATION OF THIRUVANANTHAPURAM ``` ``` EXHIBIT R7(D)TRUE COPY OF THE PETITION DATED 14.07.2014SUBMITTEDBYTHE KAVADITHALAKKAL RESIDENCE ASSOCIATION BEFORE THE SUB INSPECTOR OF POLICE VATTIYOORKAV ```