K.M.Kamarban v. State of Kerala & Others

WP(C) NO. 8847 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944** ## **WP(C) NO. 8847 OF 2021** ## **PETITIONER/S:** K.M.KAMARBAN AGED 70 YEARS W/O.T.N.SAIDU MUHAMMED,THARAKAN HOUSE, PARIYARAM POST,CHELANJICHAL. BY ADV CELINE JOSEPH ## **RESPONDENT/S:** - 1 STATE OF KERALA REPRESENTED BY SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT,GOVERNMENT OF KERALA,THIRUVANANTHAPURAM695001. - 2 THE DISTRICT COLLECTOR, WAYANAD DISTRICT-673122. - 3 THE SUPERINTENDENT OF POLICE, WAYANAD DISTRICT-673122. - 4 THE SECRETARY, MUTTIL GRAMA PANCHAYATH,MUTTIL.P.O, WAYANAD DISTRICT673122. - 5 THE DEPUTY DIRECTOR OF PANCHAYATH, KALPETTA,WAYANAD DISTRICT-673121. - 6 C.M.ASSASSUL ISLAM SANGAM, PARIYARAM POST,WAYANAD,REPRESENTED BY ITS PRESENT PRESIDENT,AHAMMED SHA,AGED ABOUT 50 YEARS,FATHER'S NAME NOT KNOWN TO THE PETITIONER,URRUTTIYIL HOUSE,CHILANJICHAL,PARIYARAM POST, WAYANAD DISTRICT- WP(C) NO. 8847 OF 2021 2 673122. 7 PUTHENKANDY ABOOBACKER, AGED 42 YEARS FATHER'S NAME NOT KNOWN TO THE PETITIONER, PUTHUKKANDY HOUSE,PULLERI,PARIYARAM POST, CHELANJICHAL,WAYANAD,SECRETARY,C.M.ASSASSUL ISLAM SANGAM,PARIYARAM-673122. 8 HAMID ANAS SAKHAFI, S/O ABDUL KHADER FAISY,ULLATTUPARAMBIL HOUSE, CHELANJICHAL,PARIYARAM POST-673122. 9 JUMAILTH, W/O HAMID ANAS SKHAFI,ULLATTUPARAMBIL HOUSE, CHELANJICHAL,PARIYARAM POST-673122. 10 *P.A.SALAHUDHEEN, PULAVOOR VEEDU,(FATHIMA MANZIL), PARIYARAM POST673122. DELETED THE 10TH RESPONDENT FROM THE PARTY ARRAY AS PER ORDER DATED 02.08.2021 IN IA 3/2021 IN WPC 8847/2021 BY ADVS. SMT.JAYASREE K.P. MOHAMED JAMEEL P.K RAFFEEKH.K P.A.MOHAMMED SHAH ## **OTHER PRESENT:** SMT.SURYA BINOY, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8847 OF 2021 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No. 8847 of 2021** **-------------------------------------Dated this the 17[th] day of February, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : “a. to issue a writ of mandamus or appropriate writ or necessary directions to the respondents No.2 to 5 to execute the Exhibit P3order No. No.A4-4260/20 dated 31.12.2020 issued by the 4th respondent to stop the functioning of the building as Mosque and use of the high power amplifiers and loud speakers in offering prayers and other activities. b. To issue direction to the Secretary Muttil Grama Panchayath to restrain from assigning building no./regularizing the newly constructed building adjacent to the existing Mosque, which was constructed without requisite building permit and constructed the same in violation of building rules by the respondents 6 to 10,till the disposal of the O.P.153/2020 of the Hon'ble Ombudsman for Local Self Government Institutions and that too after hearing the petitioner herein. c. issue a writ, order or direction declaring that the action of the 4th respondent in not taking action for removal of illegal construction made by the 6 to 10 respondents as illegal and WP(C) NO. 8847 OF 2021 4 arbitrary and consequently direct the 4th respondent to take action for removal of the constructions made in contravention of building permit and not to allow the 6 to 10 respondents to use the newly constructed building for conduct of Madrassa and pass such other or further order or orders as deem fit and proper in the circumstances of the case. d. issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to take appropriate action on complaints/representations of the petitioner especially Exhibit P6 to P8, within a time limit to be prescribed by this Honourable Court. e. Such other and further reliefs which this court deems fit to grant under the circumstances of the case.” [SIC] 2. The main prayer in this writ petition is to implement Ext.P3 order issued by the 4[th] respondent-Panchayat. The petitioner is residing in Chilanjichal in Wayanad District. It is the case of the petitioner that on the western side of the petitioner's property, respondent Nos. 6 to 10 constructed building after obtaining building permit from the 4[th] respondent. The permit was obtained for constructing a private hostel and a home stay. It is the grievance of the petitioner that after completion of the building, the respondent Nos. 6 to 9 began to use the same as a Mosque C.M.Assassul Islam Sunni WP(C) NO. 8847 OF 2021 5 Juma Masjid. It is the case of the petitioner that the building was constructed without observing any of the rules laid down in building rules. It is the grievance of the petitioner that even though the Panchayat found that there is violation of Rules and issued Ext.P3, the same is not implemented. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned counsel appearing for respondent Nos. 6 and 7. 4. This Court in **Noorul Islam Samskarika Sangam** v. **District Collector, Malappuram** [2022 (5) KHC 595] observed that the construction of building under a permit for a particular purpose and subsequently seeking change of occupancy for using it as religious place cannot be allowed without permission from the concerned authority. Admittedly, the petitioner obtained building permit to construct a private hostel and home stay. The grievance of the petitioner is that now the same is using as a Mosque. This cannot be permitted in the light of the principle laid down by this Court in **Noorul Islam Samskarika Sangam's** case (supra). WP(C) NO. 8847 OF 2021 6 Therefore, this writ petition is allowed in the following manner : 1) The respondent Nos. 2 to 4 are directed to see that Ext.P3 is implemented in letter and spirit as long as Ext.P3 is in force. The respondent Nos. 2 to 4 will also see that the principle laid down by this Court in **Noorul Islam Samskarika Sangam's** case (supra) is also strictly followed in its letter and spirit. ## **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 8847 OF 2021 7 ## **APPENDIX OF WP(C) 8847/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF KERALA IN WP(C)16195/2020 DATED 24.08.2020 EXHIBIT P2 TRUE COPY OF THE INSPECTION REPORT OF THE 4TH RESPONDENT DATED 08.12.2020. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 31.12.2020 OF THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 05.02.2021 ISSUED TO THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE POSTAL RECEIPT. EXHIBIT P5(A) TRUE COPY OF THE ACKNOWLEDGEMENT CARD DATED 08.02.2021. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 19.02.2021 BEFORE THE DISTRICT COLLECTOR,WAYANAD. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 19.02.2021 BEFORE THE POLICE CHIEF,WAYANAD. EXHIBIT P8 TR9UE COPY OF THE REPRESENTATION DATED 19.02.2021 BEFORE THE 5TH RESPONDENT. Exhibit P10 TRUE COPY OF THE PLAINT DATED 23-6-2022 SUBMITTED BEFORE THE MUNSIFF COURT, KALPATTA. Exhibit P11 TRUE COPY OF THE COMMISSION REPORT DATED 20-07-2022 SUBMITTED BY THE COMMISSIONER BEFORE THE MUNSIFF COURT, KALPATTA. Exhibit P12 TRUE COPY OF THE ORDER DATED 17-11-2021 OF THE OMBUDSMAN OF LOCAL SELF GOVERNMENT WP(C) NO. 8847 OF 2021 8 INSTITUTIONS, TRIVANDRUM. RESPONDENT EXHIBITS Exhibit R7(B) TRUE COPY OF THE ORDER DATED 04/07/2022 IN O.P 153/2022 OF HONOURABLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM Exhibit R7(C) TRUE COPY OF THE PLAINT IN O.S 121/2022 OF MUNSIFF COURT, KALPETTA