Sasidhar A. and Nithyanantha @ Ananthan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938** **WP(C).No. 32080 of 2015 (H) ----------------------------** ## **PETITIONER(S):** - **-------------** **1. SASIDHARA A., AGED 51,** - **S/O.KANNAN ACHARY, NELLIKATTA ADRAKAZHI HOUSE, PADY VILLAGE, EDANEER P.O, KASARGOD DISTRICT, KERALA.** **2. NITHYANANTHA @ ANANTHAN** - **AGED 43, S/O.KUNJURAMAN, NELLIKATTA ADRAKAZHI HOUSE, PADY VILLAGE, EDANEER P.O, KASARGOD DISTRICT, KERALA.** **BY ADVS.SRI.P.HARIDAS** **SRI.P.C.SHIJIN** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA** **REPRESENTED BY DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **2. THE DISTRICT COLLECTOR KASARAGODU - 670121.** **3. SECRETARY, CHENGALA GRAMA PANCHAYATH CHENGALA P.O, KASARGOD - 670 631.** **4. THE DISTRICT POLICE CHIEF KASARAGOD DISTRICT 670 121.** **5. REVENUE DIVISIONAL OFFICER KASARAGOD 670 121.** **6. THE SUB INSPECTOR OF POLICE VIDYANAGAR POLICE STATION, KASARAGOD 670 121.** **7. B. AHAMMAD @ AAMU** - **MUTTATHODI VILLAGE, NEAR KVR CAR SHOP, ALAMPADY P.O PANALAM, NAYANMAR MOOLA, KASARGOD - 671 123.** **R7 BY ADV. SRI.AVM.SALAHUDIN R3 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED R3 BY ADV. SRI.SHIRAZ ABDULLA** **R BY GOVERNMENT PLEADER SRI.MANU RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 32080 of 2015 (H)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 - TRUE COPY OF THE MASS PETITION DATED 07.10.2014** - **P2 - TRUE COPY OF THE REPRESENTATION DATED 07.11.2014 SUBMITTED BY PETITIONER TO 2ND RESPONDENT** - **P3 - TRUE COPY OF THE INTERIM ORDER DATED 05.02.2015 IN WPC NO.30186/2014** - **P4 - TRUE COPY OF THE COUNTER AFFIDAVIT ALONG WITH DOCUMENTS SUBMITTED BY 3RD RESPONDENT IN COC NO.608/2015 DATED 20.06.2015** - **P5 - TRUE COPY OF THE JUDGMENT IN WPC. NO.30186/2015 DATED 05.08.2015** - **P6 - TRUE COPY OF THE PHOTOGRAPHS OF THE CONSTRUCTION** - **P7 - TRUE COPY OF THE INTERIM ORDER DATED 04.09.2015 IN RP NO.745/2015** - **P8 - TRUE COPY OF THE OBJECTION DATED 11.9.2015 SUBMITTED BY PETITIONER TO 2ND RESPONDENT** - **P9 - TRUE COPY OF THE OBJECTION DATED 29.09.2015 SUBMITTED BY PETITIONER TO 2ND RESPONDENT** **P10 - TRUE COPY OF THE ORDER DATED 22.09.2015 OF THE 2ND RESPONDENT.** **P11 - TRUE COPY OF THE ORDER NO.G.O.(P) NO.217/05/HOME DATED 25.07.2005 ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT.** **P12 - TRUE COPY OF THE MANUAL OF GUIDELINES TO PREVENT AND CONTROL COMMUNAL DISTURBANCES AND TO PROMOTE COMMUNAL HARMONY ISSUED BY THE MINISTRY OF HOME AFFAIRS.** **P13 - TRUE COPY OF THE CIRCULAR NO.N7/31679/16 ISSUED BY THE DISTRICT COLLECTOR ON 05.07.2016** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** **R7(a) - TRUE COPY OF PLAN OF THE PROPOSED MASJID BUILDING AND SITE** **R7(b) - TRUE COPY OF COUNTER AFFIDAVIT IN R.P.745/2015 IN WPC 30182/2014 FILED BY THE 4TH RESPONDENT.** **R7 (c) - PHOTOGRAPH OF THE MOSQUE -BUILDING** **R7(d) - PHOTOGRAPH OF THE MOSQUE - BUILDING** **R7(e) - TRUE COPY OF THE BUILDING PERMIT DATED 02.02.2016 ISSUED BY THE 3RD RESPONDENT.** **R7 (f)- TRUE COPY OF THE LETTER DATED 01.12.2016 ISSUED BY 3RD RESPONDENT TO THE PETITIONER/7TH RESPONDENT IN WPC.** **ANNEXURE R3(a) - TRUE COPY OF THE APPLICATION FOR PERMIT AND PLAN** **WP(C).No. 32080 of 2015 (H)** **---------------------------- -2-** **ANNEXURE R3(b) - TRUE COPY OF THE NOC DIST. COLLECTOR KASARGOD. ANNEXURE R3(c) - TRUE COPY OF THE NOC FIRE & RESCUE KASARGOD. ANNEXURE R3(d) - TRUE COPY OF THE NOC ELECTRICAL INSPECTOR ANNEXURE R3(e) - TRUE COPY OF THE INTERIM ORDER DT.20.10.2015** **ANNEXURE R3(f) - TRUE COPY OF THE INTERIM ORDER DTD.28.01.2016 IN WP(C) NO.32080/15** **ANNEXURE R3(g) - TRUE COPY OF THE JUDGMENT IN CONTEMPT CASE 1233/15 ANNEXURE R3(h) - TRUE COPY OF THE JUDGMENT IN CONTEMPT CASE 1233/15 ANNEXURE R3(i) - TRUE COPY OF THE BUILDING PERMIT** **ANNEXURE R3(j) - TRUE COPY OF THE ORDER DATED 21.03.2016 IN IA NO.460/16 IN APPEAL NO.252/16 OF TRIBUNAL FOR LSG -THIRUVANANTHAPURAM** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **A.K.JAYASANKARAN NAMBIAR, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C) No.32080 of 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of February, 2017 ## **JUDGMENT** The petitioners are the residents of Chengala Grama Panchayath in Kasargod District. In the writ petition, they are aggrieved by Ext.P10 order dated 22.09.2015, passed by the District Collector, granting a No Objection Certificate(NOC) to the 7[th] respondent, for the purposes of constructing a mosque in neighboring premises. It was the case of the petitioners, even in a previous round of litigation, that the 7[th] respondent was going ahead with the construction of the mosque in the area, without obtaining a prior permission from the District Collector, as mandated under the Kerala Panchayath Building Rules 2011. It would appear that, when the petitioners approached this Court on the earlier occasion, challenging the action of the 7[th] respondent in taking steps to construct the mosque, this Court by Ext.P5 judgment, after noticing that an application for NOC had been preferred by the 7[th] respondent before the 2[nd] respondent herein, disposed the writ petition by directing the 2[nd] respondent, to consider the objections of the petitioners also, while considering the grant of NOC to the 7[th] respondent, for constructing the W.P.(c).No.32080 of 2015 : 2 : mosque. It was also made clear that the 7[th] respondent should not commence construction activities of the mosque, till such time as orders were passed by the 2[nd] respondent District Collector. Ext.P10 is the order passed by the District Collector, pursuant to the directions in Ext.P5 judgment. In Ext.P10 order, while granting the NOC to the 7[th] respondent, the District Collector made it clear that the premises was to be used only for prayers, and further that, no burial grounds would be constructed within the said premises. It was also directed that a compound wall would be constructed, before the construction of the mosque itself and there were also directions with regard to the use of microphones and the decibel levels that had to be maintained, as also with regard to the prevention of any communal disturbance in the area, and causing of any disturbance to pedestrians in the vicinity of the premises. As already noted, Ext.P10 order of the District Collector is impugned in this writ petition inter alia on the ground that it was not open to the District Collector to grant an NOC, in a case where the construction had already commenced, since the requirement was for an NOC to effect the construction itself. The contention of the learned counsel for the petitioners is essentially that inasmuch as the 7[th] respondent had already commenced the construction of the building, the structure attained the status of an unauthorised construction and this could not be regularised through the W.P.(c).No.32080 of 2015 : 3 : grant of an NOC by the District Collector. 2. Counter affidavits have been filed by the 3[rd] respondent as also by the 7[th] respondent. Reply affidavits have also been filed by the petitioners to the counter affidavits filed by the 3[rd] and 7[th] respondents. 3. I have heard Sri.P.Haridas, the learned counsel for the petitioners, the learned standing counsel for the 3[rd] respondent and Sri.Salahudheen, the learned counsel for the 7[th] respondent and the learned Government Pleader for the official respondents. 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that the contention of the petitioners is premised on on Rule 7 (8) of the Kerala Panchayat Buildings Rules 2011. The said provision was amended through a notification S.R.O No.362/2015, with effect from 03.06.2015. The rule prior to the substitution read as follows: “(8) In the case of an application to construct or reconstruct a building [The words “or make alteration or addition or extension”omitted by S.R.O.No.26/2014, w.e.f. 13-1-2014] within any Security Zone, the Secretary shall consult the District Collector concerned before permission W.P.(c).No.32080 of 2015 : 4 : is granted. The District Collector, after getting the specific recommendations from the Director General of Police, shall furnish his reply. The objection if any raised and/or restriction and/or regulation if any suggested by the District Collector shall be complied by the Secretary while issuing the permit: Provided, in the case of construction of new building or reconstruction or alteration or addition or extension of existing building for religious purpose or worship, prior approval or clearance or permission and concurrence as the case may be, of the District Collector concerned shall be obtained and the conditions stipulated in the 'Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony' which is in force have to be complied with. Applications for renovation without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship can be considered by the Secretary after informing the District Collector in form in **Appendix - N** duly filled by the applicant and verified by the Secretary. The permit shall be issued only after the receipt of the concurrence of the District Collector”. Consequent to the amendment, the Rule was bifurcated and numbered as Rule 8 and Rule 8(A) respectively, which read as follows: “(8) In the case of an application to construct or reconstruct a building or make alteration or addition or extension within any security zone, the W.P.(c).No.32080 of 2015 : 5 : Secretary shall consult the District Collector concerned, before permission is granted and the District Collector shall furnish his reply, after obtaining the specific recommendations from the Director General of Police and Secretary shall, while issuing the permit, comply with the objection, if any, raised and/or restriction and/or regulation, if any, suggested by the District Collector. (8A) In the case of construction of new building or reconstruction for religious purpose or worship, prior approval or clearance or permission or concurrence, as the case may be, of the District Collector concerned, shall be obtained and the conditions stipulated in the 'Manual or Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony' which is in force be complied with. Applications for renovations without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship may be considered by the Secretary after informing the District Collector in the Form as provided in Appendix-N, duly filled in by the applicant and verified by the Secretary. However, the permit shall be issued only after the receipt of the concurrence of the District Collector”. W.P.(c).No.32080 of 2015 : 6 : 5. It is relevant to note that the amendment notification made it clear that the amendment was to operate with effect from 03.06.2015 only. In the instant case, the application for building permit was submitted by the 7[th] respondent before the 3[rd] respondent Panchayath, in October 2014, and hence, it is the provisions of the erstwhile Rule, that would have applied while considering the application for building permit submitted by the 7[th] respondent. It is relevant, in this context, to note that a Division Bench of this Court in **Thomas Varghese v. District Collector [2014 (3) KLT 675]** , interpreted the provisions of the erstwhile Rule 7 (8) of the Kerala Panchayat Building Rules, 2011 and the proviso thereunder, and held that the proviso refers only to construction of a new building or re-construction or alteration or addition or extension of an existing building for religious purposes or worship, only in cases where the application submitted was in respect of construction of a building in a security zone. It was held that, the proviso would operate only in the field in which sub-rule (8) of Rule 7 operates and since this was in the context of buildings in security Zones, the proviso also would be attracted only in cases where the construction of a building itself was contemplated within a security zone. The aforesaid decision of the Division Bench of this Court, which has not been carried in further appeal, and has hence attained finality, would unequivocally indicate that in the instant case, the W.P.(c).No.32080 of 2015 : 7 : proviso on which the learned counsel for the petitioners relies, would have no application to the building permit application submitted by the 7[th] respondent, before the 3[rd] respondent Panchayat. Be that as it may, it is seen that, consequent to the directions from this Court, the application for NOC submitted by the 7[th] respondent was in fact considered by the 2[nd] respondent District Collector, and by Ext.P10 order, 2[nd] respondent had granted the NOC to the 7[th] respondent. It is also brought to my notice by the learned standing counsel for the 3[rd] respondent, as also the learned counsel for the 7[th] respondent that, the 3[rd] respondent has since granted a building permit to the 7[th] respondent, based on the NOC, although further steps pursuant to the said building permit have been interdicted by this Court through an interim order passed in the present writ petition. It is also brought to my notice that against the building permit granted to the 7[th] respondent by the 3[rd] respondent Panchayat, the petitioners have preferred a statutory appeal before the Tribunal for Local Self Government Institutions and the said appeal is pending before the said forum. Taking note of the said submission and finding that by virtue of the Division Bench decision noticed above, the challenge against Ext.P10 order of the District Collector, granting the NOC to the 7[th] W.P.(c).No.32080 of 2015 : 8 : respondent, cannot be sustained in the present writ petition, I dismiss the writ petition in its challenge against Ext.P10 order, and make it clear that the legality of the building permit granted to the 7[th] respondent by the 3[rd] respondent Panchayat shall be determined through the adjudication before the Tribunal for Local Self Government Institutions, where the appeal preferred by the petitioners against the building permit granted to the 7[th] respondent is stated to be pending. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** sm/