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2021 Supreme(Online)(KER) 25253
HIGH COURT OF KERALA
N. NAGARESH, J
ST. MARYS CHURCH, – Appellant
Versus
THE DISTRICT COLECTOR, – Respondent
WP(C)/32794/2019
SRI.V.N.SANKARJEE, SRI.V.N.MADHUSUDANAN, SMT.R.UDAYA JYOTHI, SRI.M.M.VINOD, SMT.M.SUSEELA, SMT. KEERTHI B. CHANDRAN, SRI.P.K.VIJAYAN PILLAI, SRI.SUDHAKARAN V., SMT.ARYA BALACHANDRAN, SRI.S.RAJMOHAN, SRI.ADITYA THEJUS, SRI.VIPIN NARAYANAN
Historical occupancy and the legitimacy of title documents should factor into building permit decisions, affirming long-held property rights.
Headnote:
Building Permit - Church property dispute - Kerala Panchayat Building Rules - Relevant conditions applied - Court emphasized historical occupancy and process for permit approval.
Fact of the Case:
The petitioner Church sought a building permit to reconstruct its Mondalam, citing a historical Inam from 1886. The Panchayat authorities hesitated due to questions on the document's authenticity prompted by local complaints.
Finding of the Court:
The court found it unreasonable for the Panchayat to deny the permit solely on the document's age and lack of challenge to the Church's ownership. It mandated further processing of the application while respecting established occupancy.
Issues: Whether the Panchayat's requirement for verifying the ownership document was justified and if the Church was entitled to a building permit.
Ratio Decidendi: The court ruled that long-term possession and unchanged ownership claims must be considered, and the process for permit issuance should proceed without undue delay contingent on historical claims.
Final Decision: The court ordered the Panchayat to process the building permit application for reconstruction while awaiting the District Collector's permission.
J U D G M E N T
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Dated this the 15th day of September, 2021 The petitioner, an ancient Christian Church established in the year 1463, has approached this Court seeking grant of the following reliefs:-
“(a) Declare that the procedure adopted by the 1st and 2nd respondents to verify and ascertain the validity of Inam (Proverthy) dated 24.02.1886 issued by the Maharaja of Travancore under Section 24 of the Royal Proclamation dated 24.02.1886 acknowledging title to freehold and personal Inam of the petitioner church in respect of the property admeasuring 1 Acre 37 Cent in which the church has been situating for the last 555 years, for the purpose of issuance of building permit under the Kerala Panchayat Raj Rules, 2011 for the reconstruction of Mondalam is illegal, unwarranted and unnecessary;
(b) Issue a writ in the nature of mandamus or any other writ, order or direction directing the 1st and 2nd respondents to issue building permit and plan approved to the petitioner church for the reconstruction of Mondalam pursuant to Exts.P7 and P8 applications submitted by the petitioner and Ext.P20 letter submitted by the 2nd respondent, at the earliest and within a time frame.”
2. The petitioner-Church is situated in property admeasuring 1.37 Acres comprised in Survey No.364/7 of Vechoor Village, contends the petitioner. As the Church Mondalam was in a dilapidated condition, the petitioner sought to reconstruct the Mondalam and submitted Ext.P7 Building Permit application. It appears that the Panchayat authorities forwarded the same to the District Town Planner. The District Town Planner, as per Ext.P10 dated 27.04.2018, approved the lay out plan on conditions.
3. Condition No.1 in Ext.P10 is that the Secretary to the Panchayat shall verify the documents relating to the title of the property, Survey number, area, boundaries and the right for construction. Accordingly, the Secretary sought requisite documents from the petitioner. The petitioner made available Ext.P2 Inam Aadharam, which was of the year 1886. According to the petitioner, in the Settlement Register also, the property is in the name of the Church. The petitioner produced Ext.P4 Tax Receipt as well as Ext.P5 Possession Certificate.
4. As the veracity of the documents of the year 1886 cannot be ascertained by the Secretary, the Secretary sought clarification from the District Registrar and Tahsildar. The District Registrar, as per Ext.P18, informed that this being an Inam Aadharam of the year 1886, he is not competent to certify its veracity. The Tahsildar also expressed his difficulty in the matter and communicated the same as per Ext.P19. Thereafter, the Secretary to the Panchayat addressed Ext.P20 letter to the District Collector stating that certain persons have alleged that the Inam Aadharam is concocted and requested the Secretary to the Panchayat to grant Building Permit only after confirming title of the petitioner to the property. The Secretary accordingly requested the District Collector to sanction the construction of Mondalam. The District Collector has not taken any steps pursuant to Ext.P20. It is under such circumstances that the petitioner is before this Court.
5. The 2nd respondent filed a counter affidavit stating that as there was complaints regarding the title of the Church to the property in question from local residents, the Panchayat authorities bona fide required the District Registrar General, Kottayam to examine the document and give its comments.
The District Registrar expressed his inability as per Ext.P18.
6. The learned Standing Counsel for the 2nd respondent submitted that as the document is old, the Panchayat cannot ascertain the veracity of the documents and it is for the petitioner to convince and prove that the document is genuine and title of the property belongs to the petitioner. The Panchayat has also requested the District Collector to grant permission for reconstruction of the Mondalam. As and when the District Collector grants
