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2024 Supreme(Online)(KER) 11924
HIGH COURT OF KERALA
T. R. Ravi, J
VISWAMBARAN – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) 7745/2020
SMT.V.P.SEEMANDINI (SR.), SRI M.R.ANISON, SMT.V.BHARGAVI (PANANGAD), SMT.P.A.RINUSA, SMT.K.R.DEEPA, SRI KURIAN GEORGE KANNANTHANAM (SR.), SRI.LINDONS C.DAVIS, SRI.NIRMAL S., SC, CBSE, SRI.C.HARIKUMAR, SRI.RAJITH DAVIS, SRI.RENJITH RAJAPPAN, SMT.E.U.DHANYA, S.KARTHIKA, SMT.PREETHY KARUNAKARAN, SRI.P.B.KRISHNAN (SR.), SRI.P.B.SUBRAMANYAN, SRI.ANAND GOKULDAS, SRI.SABU GEORGE, SRI.MANU VYASAN PETER
The government has the authority to intervene in building permit decisions for religious constructions, and the amended KPBR shifted the approval process to the Panchayat, rendering previous refusals irrelevant.
Headnote:
[Construction] - [Church Construction Permits] - [KPBR 2011, KPBR 2019] - [The court analyzed the legality of government orders permitting church construction, interpreting KPBR provisions. It concluded that the government had authority to intervene, and the subsequent building permit was valid under the amended rules, leading to dismissal of the petitions.]
Fact of the Case:
The petitioners challenged the government's permission for constructing a new church, claiming it would cause communal disharmony and financial burden. They argued that the Vicar's property did not meet the necessary requirements for a school and that prior permissions were not obtained as per the Kerala Panchayat Building Rules.
Finding of the Court:
The court found that the government had the authority to intervene in the District Collector's decision and that the subsequent building permit was issued in accordance with the amended KPBR. The court emphasized that the reasons for the District Collector's initial refusal were irrelevant.
Issues: The main issues were whether the government had the power to interfere with the District Collector's decision and whether the building permit issued was sustainable under the law.
Ratio Decidendi: The court held that the government could correct the District Collector's erroneous refusal based on irrelevant factors, and the amended KPBR shifted the authority for building permits to the Panchayat, making the previous objections moot.
Final Decision: The writ petitions were dismissed.
These three writ petitions challenge the permission granted by the Government for the construction of a new church and the building permit issued by the Local Self Government Institution for the construction of the church. Since the issues involved in these cases are similar and overlapping, they are being heard and disposed of together.
WP(C)Nos.7745/2020 & 2712/2021
2.The petitioners in these two writ petitions are the same persons. They claim to be owners of properties adjacent to the properties of the 3rd respondent (hereinafter referred to as ‘the Vicar’). According to the petitioners, the parishioners of the locality from time immemorial were offering prayers in a Monastery Church situated on more than 25 acres of property owned by the Carmelites of Mary Immaculate (CMI). In the year 2009, a decision was taken by the Thrissur Arch Diocese to establish a new church in that locality. By Ext.P1 order produced in WP(C)No.7745 of 2020, the District Collector granted permission for the construction of a new church in Sy.No.559/5 in Edakuny Village. The parishioners were also permitted to offer prayers in the existing Monastery Church of CMI. The petitioner submits that the two churches are situated within a 500 meter radius of the petitioners’ properties.
3.In the year 2009, the Vicar purchased 1.3506 hectares (333.702 cents) of property comprised in Sy.Nos.601/2, 602/2, 609/2, 603/2, and 610/1 of Thrikkur Village, lying adjacent to the petitioners’ property. After obtaining provisional affiliation from the CBSE on 29.9.2016, a school named Jesus Academic School, Thalore, was established on the property. The approved plan of the school and the provisional affiliation order dated 29.9.2016 have been produced as Exts.P3 and P4 in WP(C)No.7745 of 2020. The petitioners submit that as per the affiliation bye-law of the CBSE, a minimum extent of 2 Acres is required for establishing a CBSE school. Ext.P4 order would show that the facilities reported at the time of the last inspection included an area of 10066 SQ.M., equivalent to 248.73 cents for the school campus, and 5000 SQ.M. area for the playground (equivalent to 123.55 cents). The petitioners submit that the school and the Laverna Convent, Thalore belonging to the Franciscan Sisters of Sacred Heart, are functioning in the 333.655 cents owned by the Vicar. It is contended that out of the said total extent, 53 cents comprised in Sy.No.602/9 of Thalore Village is paddy land as evidenced by the data bank and revenue records. It is hence contended that the extent of land available with the Vicar and the details provided for getting CBSE affiliation do not tally.
4.Another contention is that as per Rule 7(8A) of the Kerala Panchayat Building Rules , 2011 (' KPBR 2011' for short) and clause 23 of the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005 (Manual for short), prior permission from the District Collector is necessary for the construction of a religious place. The petitioners had submitted a complaint before the Revenue Divisional Officer, Thrissur, who had, on 1.11.2012, directed the Vicar to stop the functioning of the church on the property adjacent to that of the petitioners. The petitioners approached this Court by filling WP(C)No.992 of 2013. The Vicar also filed WP(C) No.15308 of 2013 challenging the order dated 1.11.2012 issued by the Revenue Divisional Officer. By a common judgment dated 20.6.2014, the writ petition filed by the Vicar was allowed and the writ petition filed by the petitioners was dismissed. Exhibit P5 in WP(C)No.7745 of 2020 is a copy of the judgment. Exhibit P5 was challenged by the petitioners in W.A.Nos.1306 of 2014 and 1263 of 2014. Meanwhile, the Vicar filed an application before the District Collector for permission to conduct prayer in the property comprised in Sy.No.602/2 603/2 and 610/1 of the Thrikkur Village. The request made by the Vicar was granted by Ext.P6 order dated 12.4.201
