C. Sundaradhas vs The Secretary to Government, Home Department and Others

Vinod k. Sharma, J.—The Petitioner prays for issuance of a Writ, in the nature of Mandamus, to direct the second Respondent, to initiate action for demolition of construction put up in Re Survey No. 214/32 by the fifth and sixth Respondents, in view of rejection of Planning permission by the second Respondent vide his proceedings dated 28.12.2005.

The Petitioner is the President of Hindu Dharma Vidya Peedam, Kanchi Nagar, Kappicadu Post, Kunnathoor Village, Kanyakumari District.

The case of the Petitioner, is that in the year 1983, there was a communal clash between the two religious groups, leading to loss of life and materials. In order to find out the reasons for the communal riots, a Judicial Commission was constituted, which was headed by Mr. Justice Venugopal.

In pursuance to the recommendations made by the Judicial Commission, the State Government issued G.O.Ms. No. 916 dated 29.04.1986.

The Government Order is only an administrative instruction, having No. force of law, nor there was any necessity of issuing such G.O., as statutory provision under Rule 4(3) of the Tamil Nadu Panchayats Building Rules, 1997 (hereinafter referred to as "the Rules"), is in existence dealing with the same issue.

Rule 4(3) of the Rules is reproduced hereunder for ready reference:

"4(3) No. site shall be used for the construction of a building intended for public worship or religious purposes without the prior approval of the Collector of the district who may refuse such approval, if in his opinion, the use of the site and buildings is likely to endanger public peace and order".

In pursuance to the Statutory Rule, referred to above, Respondent Nos. 5 and 6 sought permission of the District Collector to raise the construction of a Church.

The learned District Collector refused to give permission, but refused to interfere with the construction, in view of the injunction order passed by the learned Single Judge of this Court, giving permission to Respondent Nos. 5 and 6 to raise construction.

It is not in dispute, that the order passed by the learned Single Judge was challenged in Writ Appeal, wherein Respondent Nos. 5 and 6 withdrew the writ petition itself. In view of the withdrawal of the writ petition, the order passed by the learned Single Judge was set aside. Therefore, as on date, there is No. order in favour of Respondent Nos. 5 and 6 permitting them to raise construction.

It is also not in dispute, that the Petitioner herein, had filed a Civil Suit for Injunction, restraining the Respondent Nos. 5 and 6 from constructing the church near the religious place of the Petitioner. The Suit was decreed, and the Respondent Nos. 5 and 6 were restrained from raising any construction, except with the prior permission of the District Collector.

The case of the Petitioner, is that in view of the decree passed by the Civil Court, and the order of the District Collector, refusing to give permission to raise the construction, this Court, now, should issue a Writ in the nature of Mandamus, directing the District Collector, to demolish the Church raised by Respondent Nos. 5 and 6.

This Writ petition is totally misconceived. The Petitioner has a Civil Court decree in his favour, therefore, the remedy of the Petitioner is to get the decree executed under Order XXI Rule 32 of Code of Civil Procedure, or avail other alternative remedy under "the Rules".

This Court, in exercise of jurisdiction under Article 226 of the Constitution of India, cannot issue direction for execution of the decree. The District Collector has the jurisdiction, to demolish the church, raised by Respondent Nos. 5 and 6, under "the Rules". The Authorities can exercise Statutory powers, to demolish the unauthorized construction.

The jurisdiction of the District Collector under Rule 4(3) of the Rules is only limited to grant permission or to refuse permission thereof, which has been admittedly exercised.

This Writ Petition is accordingly dismissed, with liberty to the Petitioner to get the Civil Court decree executed, or avail any of the other remedy, in accordance with law.

No costs.