IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 WP(C).No. 4883 of 2011(I) -------------------------------------- PETITIONER(S): ------------------------ 1. MATHEW JOSEPH PLATHOTTAM, S.H.MOUNT POST, KOTTAYAM-686 006. 2. JAMES T.M, THERAMTHANAM,S.H.MOUNT.POST,KOTTAYAM-686 006. BY ADVS. SRI.MATHEW JOHN (K), SRI.DOMSON J.VATTAKUZHY. RESPONDENT(S): ---------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE POST, KOTTAYAM. 2. THE DISTRICT SUPERINTENDENT OF POLICE, KOTTAYAM. 3. THE TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, KOTTAYAM, 4. SAMUEL C.L.,CENTRAL PASTOR, THE PENTECOSTAL MISSION, NAGAMPADAM WARE HOUSE ROAD,S.H.MOUNT POST, KOTTAYAM-686 006. 5. THE SECRETARY, KOTTAYAM MUNICIPALITY, MUNICIPAL BUILDING, KOTTAYAM-686 016. R1 TO R3 BY SR. GOVERNMENT PLEADER SRI. P.K.ARAVINDKUMAR BABU R4 BY ADV. SRI.C.K.SREEJITH R5 BY ADVS.SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU, SRI.B.PREMNATH (E). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4883/2011 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE OF REGISTRATION DTD. 6/08/2008. P1(A): COPYOF THE PETITION DTD. 15/04/2004 BY THE PETITIONERS ASSOCIATION. P2: COPY OF THE NOTICE DTD. 3/3/2005. P3: COPY OF THE PETITION SUBMITTED BY THE PETITIONERS DTD. 29/08/2005. P4: COPY OF THE PETITION DTD. 12/09/2005 BY THE PETITIONERS. P5: COPY OF THE COMMUNICATION DTD. 14/01/2003 BY THE TOWN PLANNER, KOTTAYAM. P6: COPY OF THE LETTER DTD. 11/05/2004 BY THE SUPERINTENDENT OF POLICE, KOTTAYAM. P7: COPY OF THE REPORT OF THE C.I.OF POLICE DTD. 30/04/2004. P8: COPY OF THE REPORT OF THE TAHSILDAR DTD. 28/07/2004. P9: COPY OF THE PETITION DTD. 4/08/2005 BYTHE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT. P10: COPY OF THE REPORT OF THE VILLAGE OFFICER DTD. 16/01/2006. P11: COPY OF THE STOP MEMO ISSUED BY THE VILLAGE OFFICER DTD. 16/01/2006. P12: COPY OF THE LETTER DTD. /09/2008 BY THE TAHSILDAR. P13: COPY OF THE LETTER TO THE TOWN PLANNER. P14: COPY OF THE REPLY DTD. 25/11/2008 BY THE TOWN PLANNER,KOTTAYAM. P15: COPY OF THE REPLY DTD.12/12/2008 BYTHE 5TH RESPONDENT. P16: COPY OF THE LETTER DTD. 9/02/2009 BY THE TOWN PLANNER, KOTTAYAM. P17: COPY OF THE NOTICE DTD. 12/1/2008 BY THE 5TH RESPONDENT. P18: COPY OF THE REPRESENTATION BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT DTD. 30/12/2008. Kss ..2/- ..2... WPC.NO.4883/2011 I P19: COPY OF THE REPLY DTD. 7/02/2009 BY THE 5TH RESPONDENT. P20: COPY OF THE LETTER DTD. 11/03/2009 BY THE TOWN PLANNER. P21: COPY OF THE LETTER DTD. 28/05/2009 BY THE 5TH RESPONDENT. P22: COPY OF THE REPRESENTATION DTD. 30/11/2005 BY THE PETITIONERS. P23: COPY OF THE REPRESENTATION BY THE PETITIONERS DTD. 24/12/2009. P24: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONERS DTD. 13/01/2010. P25: COPY OF THE ORDER DTD. 22/02/2010 IN WP(C) NO.5274 OF 2010. P26: COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KOTTAYAM DTD. 24/02/2010. P27: COPY OF THE REPRESENTATION BY THE PETITIONERS DTD. 30/12/2010. P28: COPY OF THE JUDGMENT DTD. 12/01/2011 IN WP(C) NO.1046 OF 2011 (E). P29: COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE KOTTAYAM DTD. 8/02/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.R.RAMACHANDRA MENON, J. ------------------------- W.P (C) No. 4883 of 2011 -------------------------- Dated this the 22nd February, 2011 J U D G M E N T This writ petition has been filed by the petitioner seeking to set aside Ext.P29 on many a ground, legal and factual. 2. As per Ext.P29, the 4th respondent has been given permission by the 1st respondent to conduct a 'Convention' at the place in question, which is stated as situated with close proximity to a residential colony and with narrow access. There is a finding in the said order, that the applicant/4th respondent has not obtained any permission to construct an 'assembly hall' there and that the District Magistrate has not given any permission for the construction of a religious building in that site; despite which, permission was given in the last year to hold the Convention as a 'one time measure' subject to stringent conditions imposed vide Ext.P26 dated 24.2.2010. Without any change in circumstances, Ext.P29 is stated as passed in quite casual and routine manner, perpetuating the illegality and the hardships to the local public, which in W.P (C) No. 4883 of 2011 2 turn is under challenge. 3. Notice was served on the respondents 1 to 4 through special messenger and the 5th respondent has appeared through the Standing Counsel. Heard all concerned. 4. Going by the sequence of events as discernible from the materials on record, it is evident that the construction has been effected by the 4th respondent in the premises without obtaining any permit/licence as contemplated under the relevant provisions of law. The land filling is stated as done contrary to the provisions of the Kerala Land Utilisation Order; and the challenge is stated as pending consideration in different proceedings. Petitioner was all along complaining of the unlawful activities being pursued by the 4th respondent in this regard and in conducting a 'Convention', causing utmost hardships and nuisance to the local residents. 5. Learned counsel for the petitioner submits that when a similar course was pursued by the 4th respondent last year, the petitioner approached this Court by filing W.P (C) No. 4883 of 2011 3 W.P (C) No.5274 of 2010, wherein, an interim order was passed, as borne by Ext.P25, wherein, it was observed that the 4th respondent had made all arrangements by the time, for starting the convention at 9 a.m. on 25.2.2010. In the said circumstance, no interference was made by this Court and the District Collector was directed to consider the application and pass appropriate orders as specified. The said order reads as follows: "Heard learned counsel for the petitioner and learned counsel for the 4th respondent. The matter in dispute is regarding the convention proposed to be conducted from 25.2.2010. The petitioner has made a complaint before the District Collector as per Ext.P23. It is mainly contended that even the constructions made are in violation of the various statutes and relevant statutory provisions. The learned counsel for the 4th respondent submitted that all arrangements have been made for starting of the convention at 9 a.m. on 25.2.2010. The 1st respondent will therefore hear both parties tomorrow (24.2.2010) at 2 p.m. especially on Ext.P23 filed by the petitioner. It is submitted by the learned counsel for the petitioner that already the District Collector has heard the parties on 6.1.2010. Appropriate orders will be passed by the District Collector or the Additional Magistrate who will be available in the station tomorrow." W.P (C) No. 4883 of 2011 4 6. Pursuant to Ext.P25, the 1st respondent considered the matter and passed Ext.P26, wherein, it was observed as follows: "Sri.Y.Thomas, Central Pastor, the Pentecostal Mission who represented on behalf of the Pentecostal Mission informed that it is difficult to postpone the convention as people have come from all the parts to attend the convention and hence requested not to cancel the convention at this later stage. He assured that next local convention is proposed to be conducted in the Sports Council Maidan Kottayam." 7. It was in the said circumstance, that Ext.P26 order was passed granting permission as a special circumstance, incorporating the various conditions as extracted below: "1. The narrow road which leads from Nagampodam ie., Warehouse road SH Mythri Nagar road should not be used by the organizers/believers who come to attend the convention broadly for transportation of believers etc., and no parking is also allowed in that road. 2. The entry which is open to the eastern portion of the venue from M.C Road side (ie. Opposite Mathrubhumi) should only be used and vehicles should also be parked in the open space which is near the godown. 3. Three medium size cars will be given pass by the Police Officers for the organizers for their emergency needs and no other vehicles will W.P (C) No. 4883 of 2011 5 be allowed other than that of residents in that area and road. 4. Mike permission with 2 boxes of 45 dcb is only permitted as per the Mike sanction given by the Police and that only will be allowed. Sri.Augustine P Paul, Puthenveettil, South Manorama, Kottayam, proprietor of Sabu sound system is the contractor and he is instructed to follow the direction and anything more than the above mentioned facility will be taken into custody without notice. 5. Time of the convention will be from 9 A.M. to 8P.M and Mike should not be used after that. 6. The waste disposal activities should be monitored by a team under the control of DMO/Deputy DMO, Kottayam and an amount of Rs.5000/- should be deposited by the organizers to the Tahsildar/DMO. So that if they don't do the cleaning operations after the convention it will be undertaken by the health wing. If they do the cleaning properly, this amount will be given back to them. 7. Organizers to give the registration No. of these three vehicles that will be used through Nagampadom - Warehouse road to the DYSP, Kottayam and Police has to issue passes to them which should be displayed. 8. DYSP Kottayam, CI Kottayam East are authorized to tackle law and order issues if any in the area as per the directions of the SP of Police, Kottayam. 9. The Sub Divisional Magistrate, Kottayam will be in charge of the Magisterial W.P (C) No. 4883 of 2011 6 issues. He can appoint any number of Executive Magistrates to assist him. 10. The environment Engineer, Pollution Control Board, Kottayam should check the sound system and certify that the sound system is in the permissible limit. 11. This order is issued only for the conduct of the convention which is proposed from 25.02.2010 to 28.02.2010." 8. It was further observed in Ext.P26 as follows: "Regarding the other issues ie., unauthorized/ illegal construction, unauthorized wet land conversion etc., decisions should be taken according to KMBR & KLU Rule as early as possible by the statutory authorities. It may be pointed out that this order will not be a claim for any further legal procedures in this case. The order is passed only as an amicable settlement at this emergency situation and on considering constitutional rights of freedom for worship. No further convention should be conducted in the above site without prior sanction from the District Administration and Police.". 9. The case of the petitioner is that, instead of taking remedial measures and getting the defects cured, the 4th respondent, has sought to pursue the very same course this year as well. Despite being aware of the proceedings last year, after simply filing an application for W.P (C) No. 4883 of 2011 7 sanction before the 1st respondent, the 4th respondent rushed to this Court by filing W.P (C) No.1046/2011, which was got disposed of at the Admission stage. True, the said writ petition was disposed of, just directing the 1st respondent to consider the application and pass appropriate orders and the merit was not discussed or decided. It was pursuant to the said verdict, that the matter was considered by the 1st respondent, who passed Ext.P29 order impugned in this Writ Petition. It is relevant to note from Ext.P29 that, several adverse circumstances have been reported by the different authorities including the Police, the Pollution Control Board, Municipality etc., with reference to the narrow roads and such other vital aspects. The 1st respondent has arrived at a finding that the applicant/4th respondent has neither obtained any permission to construct an assembly hall; nor has the District Magistrate has given any such permission. After referring to the limitations prevailing and the strength of the expected gathering, observing that their safety and security is also a concern of the State and the District W.P (C) No. 4883 of 2011 8 Administration, it has been rightly remarked by the 1st respondent that the accident recently occurred in 'Pullumedu', Idukki should serve as an eye-opener. Still, a blanket permission has been given vide Ext.P29, simply stating that the conditions made by the Superintendent of Police are to be strictly followed and the other aspects mentioned by other Departments are to be taken care of. This is just as a matter of Course, which cannot but be deprecated. This Court holds that no premium can be given to the beneficiaries/wrong - doers or to those who do not have much concern to the rule of law. 10. In the said circumstances, this Court finds that there is no proper application of mind on the part of the 1st respondent while passing Ext.P29 and that the matter requires to be reconsidered by the said respondent with reference to observations made herein before. Accordingly, Ext.P29 is set aside and the 1st respondent is directed to reconsider the matter and pass a 'reasoned order' after hearing all the parties concerned before granting any sanction. W.P (C) No. 4883 of 2011 9 The writ petition is allowed to the above extent. No costs. Sd/- P.R.RAMACHANCDRA MENON, JUDGE ma /True copy/ P.A to Judge W.P (C) No. 4883 of 2011 10