NEDUMPRAM CHRISTOS MAR THOMA CHURCH v. STATE OF KERALA
Case Details
SMT. K.AMMINIKUTTY - SR.GP. SRI. T.P.PRADEEP - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.41969 OF 2023 3 JUDGMENT The petitioner is a parish. According to the petitioner, the church building was more than 120 years old. They applied for building permit for re-construction of the church. Ext.P1 is the No Objection Certificate issued by the District Collector and Ext.P3 is the building permit issued by the 2nd respondent Panchayat. The petitioner states that the work was entrusted to the 4th respondent contractor and there were some differences of opinion between the petitioner and the contractor and an arbitration proceeding is pending before the Arbitrator appointed under the provisions of the Arbitration and Conciliation Act, 1996.
2. The 4th respondent filed a complaint before the 3rd respondent stating that the construction is being carried out in violation of the Kerala Panchayat WP(C).No.41969 OF 2023 4 Building Rules, 2019 (for short, ‘the Rules’). Pursuant thereto, the Panchayat issued Ext.P5 revoking the permit. Thereafter, the 3rd respondent issued Ext.P6 stop memo based on a complaint by the 5th respondent, asking the petitioner to stop the construction since the construction is being carried out without necessary permission from the Panchayat. Exts.P5 and P6 are impugned in this writ petition. According to the petitioner, Ext.P5 order has been passed in total disregard to the provisions of Rule 16 of the Rules. It is also stated that since Ext.P6 has been issued consequent to Ext.P5, the same is also not sustainable.
3. A counter affidavit has been filed by the 5th respondent wherein it is contended that the construction is being carried out by the church in total disregard to the provisions under the Rules.
4. When this writ petition came up for consideration on 10.01.2024, this Court directed the WP(C).No.41969 OF 2023 5 learned Standing Counsel for the Panchayat to get instructions as to whether Ext.P6 has been issued in continuation of Ext.P5 or whether it is on the basis of an independent assessment of breach of the permit and the approved plan.
5. A statement has been filed by the learned Standing Counsel on behalf of respondents 2 and 3 stating that the petitioner was continuing with the construction even after Ext.P5 and therefore, on the basis of a complaint by the 5th respondent, Ext.P6 stop memo was issued.
6. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
7. Rule 16 of the Kerala Panchayat Building Rules, 2019 deals with suspension and revocation of permit and reads as follows:- “16. Suspension and Revocation of permit- The Secretary shall suspend or revoke any permit issued under these rules if it is satisfied that the applicant has violated any provisions of the Act or rules or any conditions stipulated in the permit or that the WP(C).No.41969 OF 2023 6 construction is carried out in deviation of the approved plan or Town Planning scheme or that the permit was happened to be issued on misrepresentation of fact or law or that the construction, if carried on, will be a threat to life or property: Provided that before revoking permit, the owner of the permit shall be given an opportunity to be heard and the same shall be duly considered by the Secretary. Provided further that if the permit issued under these rules is revoked before the commencement of the building construction, then the additional fee for FAR remitted by the applicant, if any, shall be refunded to the applicant on request and the permit issued shall be canceled henceforth.”
8. The first proviso to the said Rules provides that before revoking the permit, the owner of the permit shall be given an opportunity to be heard. Admittedly, the petitioner was not given an opportunity of being heard before revocation of the the building permit. Accordingly, Ext.P5 is set aside.
9. It is submitted by the learned Standing Counsel for the Panchayat that, Ext.P6 has been issued on the basis of a complaint of the 5th WP(C).No.41969 OF 2023 7 respondent since the construction went on even after issuance of Ext.P5. Accordingly, it is submitted that Ext.P6 has been issued in continuation of Ext.P5. In view of the said submission, Ext.P6 is also set aside. It will be open to the 3rd respondent to pass fresh orders on the complaint of the 4th respondent dated
08.09.2023, in accordance with law. In case there is any violation of the provisions of the Rules, it will be open to the Panchayat to take appropriate action, in accordance with law. The writ petition is disposed of with the above direction. SPR Sd/- MURALI PURUSHOTHAMAN JUDGE WP(C).No.41969 OF 2023 8 APPENDIX PETITIONER’ S EXHIBITS :- EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 TRUE COPY OF THE NO OBJECTION CERTIFICATE NO.DCPTA/4810/2019-B6 ISSUED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA DATED 30.06.2020 TO THE 3RD RESPONDENT. TRUE COPY OF THE APPROVED PLAN DATED 17.06.2021. TRUE COPY OF THE BUILDING PERMIT NO.B1- BA(124558)/2021 DATED 31.08.2019 ISSUED BY THE 2ND RESPONDENT. TRUE COPY OF THE ORDER OF THE ARBITRAL TRIBUNAL IN AR NO.43/2023 DATED 17.06.2023. TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 25.10.2023. TRUE COPY OF THE STOP MEMO ISSUED BY THE 2NDRESPONDENT DATED 08.12.2023 TO THE PETITIONER. TRUE COPY OF THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT BEFORE THE PUBLIC INFORMATION OFFICER OF THE NEDUMPRAM GRAMA PANCHAYAT DATED 8.11.2023. RESPONDENTS EXHIBITS: NIL.