Allowed

T.Anasuya, v. State of Andhra Pradesh

Andhra Pradesh HC22 Apr 2022WP/2062/2021

Case brief

AI extract

What is this about?

Held that the imposition of an alternative remedy is discretionary, especially given the delay already elapsed. The Court set aside the District Collector's permission for constructing a church because it relied on unverified neighbor consent under Rule 26, which lacked procedural safeguards. The matter was remanded for an objective determination and guidelines must be framed within three months.

What did the court decide?

Impugned order dated 05.09.2020 set aside; matter remanded for objective determination; District Collector to frame guidelines within three months.

T.Anasuya, Vs State of Andhra… — Constitutional and Fundamental Rights | Andhra Pradesh HC (2022)

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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WRIT PETITION No.2062 of 2021

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ORDER:

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The petitioners are residents of Kuthukuluru Village, Anaparthi Mandal, East Godavari District.

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It is the case of the petitioners that from February and March, 2020 the 8^th respondent who is in possession of the plot in D.No.2-79 had started gathering people in a large number and was conducting prayers with mikes. Being aggrieved by the said activities even before February and March, the petitioners are said to have given a complaint to the 7^th respondent on 10.05.2019 due to which, the 7^th respondent issued a notice to the 8^th respondent on 03.07.2019. The petitioners are also said to have given complaints to the Andhra Pradesh Pollution Control Board, on account of the noise pollution, caused by the 8^th respondent.

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The petitioners contend that in January, 2021 the 8^th respondent demolished an existing shed in house bearing D.No.2-79 and commenced construction activities. At that stage, the petitioners came to know that the 2^nd respondent-District Collector had granted permission to the 8^th respondent, on 05.09.2020, for construction of a public place of worship under Rule 26 of the Andhra Pradesh Gram Panchayat Land Development (Layout and Building) Rules, 2002 (for short „Rules, 2002‟) issued under G.O.Ms.No.67, dated 26.02.2002, as amended by G.O.Ms.No.376, dated 29.11.2012. The said Rule reads as follows:

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“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 for the proposed construction of the building is likely to endanger public peace and order, after giving an opportunity to the applicant to show cause against such refusal”.

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The petitioners being aggrieved by the said permission, granted by the 2^nd respondent, have approached this Court, by way of the present writ petition seeking a Writ of Mandamous declaring the action of the respondents 2 to 4 and 7 in considering the application of the 8^th respondent, for construction of a place of public worship and also to set aside the permission granted by the 2^nd respondent on 05.09.2020.

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It is the case of the petitioners that the said permission was granted by the 2^nd respondent on the basis of a report said to have been given by the 5^th respondent that the neighbours in the vicinity of the said plot had given no objection and consented for construction of the public place of worship. The petitioners contend that they are neighbours of the said plot and they have not given any such consent or no objection for the construction of this public place of worship. The petitioners further contend that they had infact being given complaints against the worship being carried out in this plot even before permissions had been granted by the 2^nd respondent and the question of giving consent would not arise.

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The respondents 2 and 5 have filed separate counter affidavits. The 2^nd respondent states that the permission had been granted on 05.09.2020 based on the resolution and

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proposal received from the Panchayat Secretary of the 7^th respondent and considering the fact that the proposed Church was in existence in 50 years long. The 5^th respondent, in his counter affidavit stated that the petitioners in the writ petition are the neighbours of D.No.2-79. He further states that permission was accorded for construction of the proposed public place of worship but construction could not be taken up due to the objections raised by the neighbouring public.

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The 8^th respondent has filed a counter affidavit stating that the house plot in D.No.2-79 had been donated to the father of the 8^th respondent on 29.11.1978 through a registered deed of Gift bearing No.2421 of 1978 for the purpose of permanent construction of a public place of worship. However, such a direction could not be carried out earlier and prayers were being conducted in a shed set up in the said land for about 50 years. The 8^th respondent goes on to state that as the shed had become dilapidated, permission was sought for demolition of the said shed and for construction of a proper building to carry on public worship. This application was placed before the 7^th respondent-Gram Panchayat which passed a resolution dated 28.04.2020, for placing the application before the 2^nd respondent-District Collector in accordance with Rule 26 of the Rules. Subsequently, permission was accorded by the 2^nd respondent on 05.09.2020 and thereafter, the 7^th respondent had given building permission on 12.10.2020. The 8^th respondent contends that in view of the permissions granted by the 2^nd respondent-District Collector and the 7^th respondent-

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Gram Panchayat, the respondent No.8, is entitled to carry on construction of the public place of worship.

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Sri K.K.Durga Prasad learned counsel, appearing for the 8^th respondent would also reiterate the stand of the 8^th respondent. He would also submit that the present writ petition is not maintainable as there is an adequate effective alternative remedy of revision to the Government under Section 264 of the Panchayat Raj Act, 1994.

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Heard Sri K.S.Murthy learned counsel, appearing for the petitioners, Sri K.K.Durga Prasad learned counsel, appearing for the 8^th respondent, Sri I.Koti Reddy learned standing counsel, appearing for the 7^th respondent and the learned Government Pleader for Panchayat Raj for respondents 2 to 5.

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Before going into the merits of the case, it is necessary to deal with the preliminary objection raised by the 8^th respondent regarding the maintainability of the writ petition.

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Sri K.K.Durga Prasad learned counsel, appearing for the 8^th respondent relied upon a judgment of a Division Bench of the erstwhile High Court of A.P in W.P.No.35527 of 2012 dated 20.11.2012 to contend that in view of the effective alternative remedy being available, the writ petition would not be maintainable.

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A perusal of the said judgment would clearly show that the Division Bench while observing that the writ petition could not normally be taken up where an effective alternative

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remedy is available had also held that the said discretion to remand the petitioners to the remedy of an alternative remedy is with the Court, hearing the writ petition. In the present case, relegating the petitioners to the alternative remedy of revision at this stage after more than one year has elapsed and after interim directions had also granted in this writ petition, would only cause unnecessary delay in a decision in the matter. Further, the issues raised in the writ petition would be better served by a decision being given by this Court. In the circumstances, the objection of the 8^th respondent on this ground is rejected.

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13 The challenge in the present writ petition is against the building permission granted by the Gram Panchayat based on the order of the District Collector-2^nd respondent dated 05.09.2020. The order of the District Collector-2^nd respondent dated 05.09.2020 reads as follows:

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“In the ref.4^th cited, the Divisional Panchayat Officer, Rajamahendravaram has submitted the proposal stating that the Kuthukuluru Gr.Pt., has resolved requesting the authorities to issue necessary permission for the proposed construction of said Church, and the surround people of the proposed Church area have given their consent that they have no objection for the proposed construction of said Church in the Sy.No.66 and finally requested the authorities to take necessary action as per G.O.Ms.No.376, PR&RD (Pts.IV) Dept., Dt.29-11-2012.”

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A perusal of the above extract would show that the 2^nd respondent-District Collector had granted approval on the ground that the neighbours had given their consent for the proposed construction of the public place of worship. The 2^nd respondent and the 5^th respondent had given further reasons in the counter affidavits filed by them. It is settled law that the

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Court exercising judicial review would be looking at only the order which is impugned before the Court and the respondents cannot improve the case by subsequent affidavits. (Please see Mohinder Singh Gill and Ors., vs. The Chief Election Commissioner, New Delhi and Ors., reported in AIR 1978 SC 851 )

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Rule 26 of the Rules extracted above would show that the Collector has to give or refuse permission, for construction of a house of worship on the ground of future law and order disturbances. The said rule, to the mind of this Court, grants uncanalised and arbitrary power to the 2^nd respondentDistrict Collector to determine whether a public place of worship can be constructed anywhere. This Rule does not prescribe any procedure nor any guidelines as to how the 2^nd respondentDistrict Collector is to arrive at a conclusion as to whether the construction of said place of public worship would cause law and order problems. This Court refrains from saying anything further as the said Rule is not under challenge before this Court.

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As the said Rule does not provide any guidelines or procedures, the impugned order of the 2^nd respondent dated 05.09.2020 has to be dealt with in accordance with the reasons set out in the said order. As mentioned above, the said order has been passed on the basis of the report said to have been given by the 5^th respondent to the 2^nd respondent that the neighbours have given their consent. This report of the 5^th respondent has been attached to the counter affidavit filed by the 5^th respondent. The relevant part of this report reads as follows:

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“The neighbours of the Church have also consented for the same”.

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No details have been set out in the report as to the manner in which this information has been obtained by the 5^th respondent. There is also no mention of how the 5^th respondent had arrived at this conclusion in the counter affidavits filed by the 5^th respondent. In view of the fact that the 5^th respondent has not chosen to set out any facts relating to this issue and in view of the fact that the 5^th respondent has not chosen to deny the specific allegation of the petitioners that they had not given consent, it must be held that the said contention remains uncontroverted and the observation of the 5^th respondent in his report is clearly not passed on any facts or any material before the 5^th respondent.

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Once the very foundation of the decision goes, it would be trite to observe that the order would have to go.

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In the circumstances, the impugned order dated 05.09.2020 is set aside and the matter is remanded back to the 2^nd respondent for an objective determination as to whether construction of the said place of worship is conducive to law and order or whether such a construction and performance of public prayers in the said place would cause law and order problems. This Court is not going into the question of sound pollution at this stage as the said issue would only arise depending upon the permissions that may be granted, if any.

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As the building permission granted by the Gram Panchayat is consequent to the permission granted by the 2^nd respondent in his proceedings dated 05.09.2020, the said building permission would also abide by the result of the decision taken by the 2^nd respondent in relation to the question of whether permission can be granted under Rule 26. Till then the said permission cannot be relied upon or acted upon.

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Before parting with this writ petition, it is necessary to also direct the 2^nd respondent to set out the guidelines or the parameters that he would be taking into account for determining whether permission is to be granted or not. This would assist any future review of the order passed by the 2^nd respondent. Needless to say, the said decision will be after taking into consideration the objections, if any that may be filed by the petitioners before the 2^nd respondent and after opportunity of hearing to the 8^th respondent. This exercise be completed within three months, from the date of receipt of this order.

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