IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WP(C).No. 3981 of 2010(W) ------------------------- PETITIONER(S): --------------- IMMACULATE CONCEPTION CHURCH, REPRESENTED BY THE PARISH PRIEST, FR.LAZAR S.PATTAKADAVU,PULLICHIRA.P.O, KOLLAM DISTRICT. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY RESPONDENT(S): --------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY,LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE SECRETARY,MAYYANAD GRAMA PANCHAYATH, KOLLAM DISTRICT. 3. PULLICHIRA EDAVAKA SAMRAKSHNA SAMITHI, REPRESENTED BY ITS SECRETARY,S.AUGUSTINE, EDEN,PULLICHIRA.P.O,KOLLAM DISTRICT. ADV. SRI.V.V.RAJA FOR R3 SRI.R.RANJITH FOR R3 SRI.M.K.CHANDRA MOHANDAS FOR R2 GOVT.PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2010, ALONG WITH WPC NO. 5238 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3981/10 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE BUILDING PERMIT GIVEN BY THE 2ND RESPONDENT DT 6.10.2009. EXT.P2: TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT STAGE OF THE CONSTRUCTION OF THE CANTEEN BUILDING. EXT.P3: TRUE COPY OF THE PHOTOGRAPH OF THE CONSTRUCTION OF THE RELIGIOUS SHOP ROOM. EXT.P4: TRUE COPY OF THE ORDER DT 2.2.2010 IN APPEAL NO.982/2009 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXTS. OF R3 EXT.R3(a): TRUE COPY OF THE APPEAL MEMORANDUM SUBMITTED BY US BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXT.R3(b): TRUE COPY OF THE ORDER DT 2.12.2009 VIDE NO.67618/RA3/09/LSGD. EXT.R3(c): TRUE COPY OF THE CIRCULAR ISSUED BY LSG VIDENO.24136/R11/07/LSG DT 20.6.2007. EXT.R3(d): TRUE COPY OF FILE NO.67618/RA3/09/LSGD DT 23.12.2009. EXT.R3(e): TRUE COPY OF LETTER VIDE NO.2247/A2/09/S&TD DT 21.12.2009 ISSUED TO THE CHIEF TOWN PLANNER FROM THE CHAIRMAN OF KERALA COASTAL ZONE MANAGEMENT AUTHORITY. EXT.R3(f): THE SITE INSPECTION REPORT DT 19.12.2009. EXT.R3(g): RELEVANT COASTAL ZONE MANAGEMENT PLAN MAP OF KERALA, (MAP 14A) EXT.R3(h): TRUE COPY OF THE DESCRIPTION (PAGE 50) EXT.R3(i): TRUE COPY OF THE CICCULAR VIDE NO.048/ENV/2006/CZMA DT 17.6.2006 ISSUED BY COASTAL ZONE MANAGEMENT AUTHORITY. EXT.R3(j): TRUE COPY OF TWO PHOTOGRAPHS WHICH WOULD REVEAL THE PROXIMITY OF THE CHURCH WITH THE ADJACENT BACKWATERS. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOs. 3981 & 5238 OF 2010 ========================= Dated this the 23rd day of February, 2010 J U D G M E N T The challenge in these writ petitions is against the order passed by the Tribunal for Local Self Government Institutions, in Appeal No.982/09. 2. Briefly stated, the facts of the case in WP(C) No.3981/10 are that an application was made by the Parish Priest, Immaculate Conception Church, Pullichira, Kollam for the issuance of a building permit. On the application, the Secretary of the Mayyanad Grama Panchayat granted the permit. Against the building permit, petitioner in WP(C) No.5238/10 filed an appeal before the Tribunal for Local Self Government Institutions. The appeal was numbered as Appeal No.982/09. 3. By order dated 2/2/2010, the Tribunal disposed of the appeal. In the order, the contentions raised by the appellant that permit granted is in violation of the Coastal Regulation Zone (CRZ) notification and that the permit violates Rule 55 of the Kerala Municipality Building Rules were rejected by the Tribunal. However, Tribunal held that going by the title deed of the WPC 3981 & 5238/10 :2 : property where the building was to be constructed, the property belonged to the Immaculate Conception Church, Pullichira represented by Parish Priest, whereas the application for building permit was made by the Parish Priest, Immaculate Conception Church, Pullichira. The Tribunal held that the application was defective as the owner of the property was not the applicant and on that ground, set aside the permit with liberty to the Church to make an appropriate application. The Immaculate Conception Church has filed WP(C) No.3981/10 challenging the aforesaid finding against them. Similarly, the appellant before the Tribunal has filed WP(C) No.5238/10 challenging the order of the Tribunal in so far as the contention regarding CRZ status and Rule 55 of the building Rules has been rejected by the Tribunal. 4. In so far as the writ petition filed by the Immaculate Conception Church is concerned, issue lies in a narrow compass. It is true that going by the title deed of the property in question, the Church is the owner of the property. The Parish Priest is entitled to represent the Church, and if so, I cannot find fault with the Panchayat in having entertained the application made by the Parish Priest and granting building permit in the name of the WPC 3981 & 5238/10 :3 : Parish Priest. It cannot be assumed that the Parish Priest has made the application independently of the Church. In my view, so far as this issue is concerned, Tribunal has adopted a very hyper technical stand. For that reason, I cannot approve the finding of the Tribunal that the application made by the Parish Priest on behalf of the Church was defective. Therefore, the finding of the Tribunal in that respect will stand set aside. 5. Now coming to the challenge in WP(C) No.5238/10 is concerned, the first contention raised is that the building permit granted to the Church is in violation of the Coastal Regulation Zone notification issued by the Government of India. This issue has been dealt with by the Tribunal in para 14 of the impugned order. A reading of this order shows that according to the Tribunal, no proper plan pointing out that the site is within the prohibited distance as per the Coastal Zone Regulation has been produced. Thereafter, Tribunal has proceeded to examine the location of the land as done by the Panchayat and rejected the contention raised by the appellant. 6. In para 7 of the writ petition, it has been averred that the appellant had produced Exts.P5 to P8. Ext.P5 is a letter issued WPC 3981 & 5238/10 :4 : by the Chairman of the Kerala Coastal Zone Management Authority enclosing the inspection report suggesting that the site in question falls within the CRZ-III and therefore construction is prohibited. Ext.P7 is the Coastal Zone Management Map of the location in question and Ext.P7(a) is the extract of the Coastal Zone Management Report. Ext.P8 is the circular issued by the Coastal Zone Management Authority requiring the local authorities to forward building permit applications received to them for verification. When these documents were available before the Tribunal, in my view, the Tribunal erred in concluding the issue against the appellant without even making reference to these documents. It is needless to state that in so far as the Coastal Zone Regulation status of the land is concerned, the official authority is not the Panchayat or the Tribunal, but the competent authority as contemplated in the notification. When that Competent authority has expressed the view in a particular manner, that view is liable to be taken note of, which the Tribunal has not done in this case. Therefore, the finding of the Tribunal in para 14 of the said order rejecting the contention of the petitioner regarding the applicability of the Coastal Zone Regulation WPC 3981 & 5238/10 :5 : notification deserves interference and has to be set aside. 7. The other contention raised by the appellant and rejected by the Tribunal is regarding the applicability of Rule 55 of the Kerala Municipality Building Rules. According to the counsel for the petitioner, the Church has to comply with Rule 55, the purpose being assembly occupancy. This has been appreciated by the Tribunal and the Tribunal has taken the view that having regard to the proposed user of the building in question, the Rule dealing with assembly occupancy is inapplicable. Tribunal also took the view that the area of the building proposed to be constructed being less than 100 and that the Rule is inapplicable for that reason as well. However, the counsel for the petitioner submits that since the building in question is proposed to be constructed by a Church, when the applicability of Rule 55 is considered, the existence of the Church building and the other structures also should be taken note of, and on that basis, it should be treated as an assembly occupancy. In my view, that argument is too far fetched and cannot be accepted. The view taken by the Tribunal regarding the inapplicability of Rule 55 seems to be a fairly reasonable and possible view, and therefore, I WPC 3981 & 5238/10 :6 : do not propose to interfere with the said finding. 8. In the result, I dispose of these writ petitions with the following directions. (1) WP(C) No.3981/10 will stand disposed of setting aside the conclusion of the Tribunal that the application made by the Parish Priest of Immaculate Conception Church is not maintainable. (2) WP(C) No.5238/10 will also stand disposed of setting aside the finding of the Tribunal regarding the inapplicability of CRZ notification and directing the Tribunal to reconsider that issue, with notice to the parties duly adverting to the documents produced by both sides. (3) It is made clear that it will be open to the parties to produce and rely on additional documents, if any, as they choose to do so. (4) The matter shall be expedited and disposed of at any rate within 8 weeks of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp