Prabhakar Alva v. The District Collector Kasaragod and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 ``` ## **`WP(C) NO. 20235 OF 2022`** ## **`PETITIONER/S:`** ``` PRABHAKAR ALVA, AGED 70 YEARS S/O. LATE BANDARI ALVA, RESIDING AT PILIYANDOOR HOUSE, KAYYAR VILLAGE AND POST, MANJESHWAR TALUK, KASARAGOD DISTRICT - 671 324. BY ADVS. T.MADHU M.PRADEEP RAO C.R.SARADAMANI SHAHID AZEEZ RESHMA SANTHOSH RENJISH S. MENON ``` ## **`RESPONDENT/S:`** - `1 THE DISTRICT COLLECTOR KASARAGOD, CIVIL STATION, VIDYANAGAR, KASARAGOD DISTRICT - 671 123.` - `2 THE TAHSILDAR, MANJESHWAR TALUK, KASARAGOD DISTRICT - 671 322.` - `3 THE VILLAGE OFFICER, KAYYAR VILLAGE, KAYYAR P.O., KASARAGOD DISTRICT - 671 324.` - `4 THE PAIVALIKE GRAMA PANCHAYAT, PAIVALIKE P.O., MANJESHWAR TALUK, KASARAGOD DISTRICT - 671 348., REPRESENTED BY ITS SECRETARY.` - `5 SREE DHOOMAVATHY MALARAYA DHARMA CHAVADI SEVA SAMITHI REG. NO.KSR/CA/143/2021, A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT 1860 REPRESENTED BY ITS PRESIDENT ASHOK SHETTY, SON MAHABALA SHETTY, PILIYANDOOR HOUSE, KAYYAR VILLAGE AND POST, KASARAGOD DISTRICT - 671 324.` -2- W.P.(C). No. 20235 of 2022 ``` BY ADVS. M.SASINDRAN ATUL SOHAN VINAI JOHN(K/1116/2021) R.REJI (ATTINGAL)(K/1471/2003) SREEJA SOHAN K.(K/001271/2001) K.V.SOHAN(K/475/1981) ``` ## **`OTHER PRESENT:`** ``` SMT.VIDYA KURIAKOSE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 20235 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 20235 of 2022 ============================================================= Dated this the 1[st] day of July, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: _“(i) Issue a writ of mandamus or any other appropriate writ direction or order, directing the fourth respondent to take action under Section 235 X of the Kerala Panchayat Raj Act 1994 and to stop the construction of the place of worship being carried out by the fifth respondent in the property comprised in Re Survey No.163/3 of Kayyar Village without obtaining requisite building permit from the fourth respondent and without obtaining the No Objection Certificate from the first respondent contemplated under Sub Rule 4 of Rule 5 of the Kerala Panchayat Building Rules 2019 forthwith, so as to secure the ends of justice._ _(ii) Issue a writ of mandamus or any other appropriate writ direction or order, directing the fourth respondent to consider and take appropriate action on Exhibit P2 representation submitted by the petitioner before the fourth respondent as expeditiously as possible and within a time frame to be fixed by this Honourable Court, so as to secure the ends of justice._ -4- W.P.(C). No. 20235 of 2022 _(iii) Issue a writ of mandamus or any other appropriate writ direction or order, directing the first respondent to consider and take appropriate action on Exhibit P1 representation submitted by the petitioner before the first respondent as expeditiously as possible and within a time frame to be fixed by this Honourable Court, so as to secure the ends of justice. And_ _(iv) Such other relief's as this Hon'ble Court may deem fit and proper in the circumstances of the case.” (sic)_ 2. The main prayer in this writ petition is to issue appropriate direction to the 4[th] respondent Panchayat to take action under Section 235X of the Kerala Panchayat Raj Act, 1994 to stop construction of the place of worship being carried out by the 5[th] respondent in the property comprised in Re.Sy.No.163/3 of Kayyar Village, without obtaining requisite building permit from the 4[th] respondent and without obtaining the No Objection Certificate from the 1[st] respondent contemplated under Rule 5(4) of the Kerala Panchayat Building Rules, 2019. -5- W.P.(C). No. 20235 of 2022 3. Today, when the matter came up for consideration, the counsel for the 5[th] respondent submitted that the construction is already stopped in the light of the notice received from the 4[th] respondent and the request is being submitted before the 4[th] respondent for regularising the construction. Till final orders are passed by the Panchayat in the regularization petition to be filed, no further construction will be done by the 5[th] respondent. The counsel also submitted that no permission from the 1[st] respondent is necessary in the light of the judgment of the Division Bench in **Mohanan and** . **another v. District Collector and others [2022 (1) KHC 441]** 4. The counsel for the petitioner argued that the permission from the 1[st] respondent is necessary. I am not deciding that question now. Admittedly, the construction is already stopped and the 5[th] respondent already approached the 4[th] respondent. If that is the case, the 4[th] respondent can decide -6- W.P.(C). No. 20235 of 2022 the matter, in accordance with law. While passing final orders, the 4[th] respondent will give notice to the petitioner also. Therefore, this writ petition is disposed of in the following manner: 1. The 4[th] respondent is directed to proceed in accordance to law, if an application for regularization is submitted by the 5[th] respondent, after giving notice to the 5[th] respondent and to the petitioner. 2. The submission of the 5[th] respondent that the construction will not be carried out without getting permission from the 4[th] respondent Panchayat is recorded. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das -7- W.P.(C). No. 20235 of 2022 ## **`APPENDIX OF WP(C) 20235/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1THE TRUE COPY OF THE REPRESENTATION DATED 8/6/2022 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. Exhibit P2THE TRUE COPY OF THE REPRESENTATION DATED 9/6/2022 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT. RESPONDENT EXHIBITS Expt.R5-ATrue Copy of the Preliminary Decree dated :22-06-1955 for partition ``` ``` Expt.R5-BTrue Copy of the Collusively obtained Compromise Decree in O.S 7/2018 on the file of The Principal Munsiff Court, Kasaragod Dated: 30-05-2018 Expt.R5-CTrue Copy of the Plaint in O.S 155/2022 on the file of Munsiff Court Kasaragod dated: 25-05-2022 Expt.R5-DTrue Copy of the memorandum of Association (MoA) of the Society Expt.R5-D-1True Copy of the English translation of Expt.R5-D Expt.R5-D-2True Copy of the registration Certificate Dated : 08-09-2021 Expt.R5-ETrue Copy the Photograph showing the Deity House constructed in 2008 Expt.R5-ATrue Copy of the Preliminary Decree dated :22-06-1955 for partition Expt.R5-BTrue Copy of the Collusively obtained Compromise Decree in O.S 7/2018 on the file of The Principal Munsiff Court, Kasaragod Dated: 30-05-2018 Expt.R5-CTrue Copy of the Plaint in O.S 155/2022 on the file of Munsiff Court Kasaragod dated: 25-05-2022 ``` -8- W.P.(C). No. 20235 of 2022 ``` Expt.R5-DTrue Copy of the memorandum of Association (MoA) of the Society Expt.R5-D-1True Copy of the English translation of Expt.R5-D Expt.R5-D-2True Copy of the registration Certificate Dated : 08-09-2021 Expt.R5-ETrue Copy the Photograph showing the Deity House constructed in 2008 ```