Allowed

Aboobacker.P. v. the District Collector and Others

Kerala HC2 Dec 2011WP(C)/21378/2010

Case brief

AI extract

What is this about?

In a writ petition challenging the rejection of a mosque construction permit, the Court held that District Collectors lack authority to deny permits based solely on a lack of necessity. Such decisions were quashed as infringing constitutional rights, directing approval within two weeks. No architectural or police objection was found.

What did the court decide?

Impugned orders quashed; Respondent I directed to grant approval for construction of the mosque within two weeks.

Aboobacker.P. Vs the District Collector… — Constitutional and Fundamental Rights | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 WP(C).No. 21378 of 2010(V) --------------------------------------

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PETITIONER:

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-------------------

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ABOOBACKER.P., S/O.AVVU, AGED 69 YEARS, PRESIDENT, KERALA NADUVATHUL MUJAHIDEEN, CHAMMANNOOR UNIT, PUNNAYOORKULAM P.O., THRISSUR DISTRICT, PIN-679 561.

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BY ADV. SRI.P.RAMACHANDRAN.

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RESPONDENTS:

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------------------------

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1. THE DISTRICT COLLECTOR, THRISSUR, PIN - 680 001.

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2. THE TAHSILDAR, CHAVAKKAD, THRISSUR DISTRICT, PIN - 680 001.

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3. THE SECRETARY (SPECIAL GRADE), PUNNAYOORKULAM GRAMA PANCHAYATH, PUNNAYOORKULAM P.O., THRISSUR DISTRICT-679 561.

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R1 & R2 BY GOVT. PLEADER SRI. ROSE MICHAEL, R3 BY ADV. SRI.PEEYUS A.KOTTAM.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).NO.21378/2010-V:

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P.1: COPY OF THE LETTER DTD. 19/12/2009 BY THE R.1. TO THE R.3.

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EXT.P.2: COPY OF THE LETTER FROM THE R.3. TO THE SECRETARY OF THE KERALA NADUVATHUAL MUJAHIDEEN.

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EXT.P.3: COPY OF THE MASS PETITION DTD. 02/02/2010 BY THE PETITIONER AND OTHERS.

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EXT.P.4: COPY OF THE ORDER NO. C1-8139/10/K. DIS. DTD. 19/05/2010 BY THE R.1.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.A. TO JUDGE

Prv.

“C.R”

C.K.ABDUL REHIM, J.

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W.P.(C) No.21378 of 2010

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Dated this the 2^nd day of December, 2011

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J U D G M E N T

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The petitioner, who is the President of Chammannoor Unit of the organization, “Kerala Naduvathul Mujahideen”, is challenging Ext.P1 and P4 orders issued by the 1^st respondent, rejecting permission for construction of a Mosque in 10 cents of land owned by the said organization. When the petitioner approached the 3^rd respondent Panchayat for getting Building Permit, the matter was referred to the 1^st respondent for approval. Through Ext.P1 the approval was rejected stating that it was not brought out in the enquiry conducted that construction of a new mosque is necessary at the locality. On the basis of the rejection of approval, Building Permit was declined by the 3^rd respondent, as per Ext.P2. The petitioner approached the 1^st respondent seeking reconsideration of the matter,

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W.P.(C).21378/10-V -2-

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through Ext.P3. A mass petition was submitted by about 100 persons, who are residents of the locality. On the basis of Ext.P3, the 1^st respondent reconsidered the matter and Ext.P4 decision was taken after affording an opportunity of hearing to the petitioner and the revenue authorities and representative of the 3^rd respondent. The approval was again declined stating that there is no change of situation after Ext.P1 order.

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In Ext.P4 it is specifically mentioned that, the Tahsildar concerned, after making enquiry, has reported that there is no objection or any communal issues with respect to construction of the mosque proposed. It is also reported that there is an ancient mosque situated about 200 Metres away from the proposed site with a burial ground. The report also stated that, enquiry conducted has not revealed any necessity for having a new mosque. In Ext.P4 it is further stated that the District Superintendent of Police also reported that there is no objection from any nearby residents against construction of mosque in question. The 1^st respondent had observed that, even though circumstance does not reveal any objection with respect to construction of

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W.P.(C).21378/10-V -3-

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the mosque or about any communal issues, since necessity for a new mosque has not been established in the enquiry conducted, the approval need not be granted.

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The petitioner made available for perusal copies of the reports forwarded by the Tahsildar and the District Superintendent of Police. Those reports in fact recommended for construction of the mosque for 'Mujahidheen' faction, since the area is thickly populated with members of Muslim community and there is no objection of whatsoever nature for such construction. It is specifically pointed out that such construction can be permitted since there is no separate mosque for the 'Mujahidheen' faction in the locality in question.

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Contention of the petitioner is that, rejection of approval by the 1^st respondent on the basis that there is no 'necessity' for a mosque, is not legally sustainable. Learned counsel argued that the 1^st respondent is not supposed to look into the question whether there is any necessity for construction of a religious building or a place of worship and that he is not the competent authority to decide on such issues. According to learned counsel, the approval can be

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W.P.(C).21378/10-V -4-

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denied only if there is any valid and sustainable objection from the residents of the locality or if the 1^st respondent is convinced that the construction of such a building will create disturbance of communal harmony or peace and may lead to any other disturbances, riots or violence on the basis of any communal issues.

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In the counter affidavit filed on behalf of the 1^st respondent it is mentioned that the site of the mosque proposed is adjacent to another mosque already in existence and the proposed mosque cannot be considered as a substitution of the old one, which is the worship place of common people irrespective of their denomination. It is further stated that, if the construction is allowed, there is a likelihood of breach of peace and harmony in and around the locality. According to the 1^st respondent, Punnayoorkkulam Panchayat is considered as a sensitive area in view of law and order situation. But it is conceded that there exists no law and order problem as of now. According to the 1^st respondent the power vested in this regard is not merely limited to ascertainment of objections to the construction, but the authority has to consider the

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W.P.(C).21378/10-V -5-

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law and order situation and communal harmony in the locality. It is stated that the permission is rejected only because the Tahsildar had reported that there is no need for granting permit for construction of a new mosque as there exists a mosque within 200 Metres nearby.

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In order to resolve the issue, a perusal of relevant provisions for grant of building permit for buildings for religious purposes or worships, may be useful. The proviso to sub-rule (6B) of Rule 7 of the Kerala Municipality Building Rules, 1999 reads as follows:

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Provided that in the case of construction of new building or reconstruction or alteration or addition or extension of existing building for religious purpose or worship, prior approval or clearance or permission and concurrence as the case may be, of the District Collector concerned shall be obtained and the conditions stipulated in the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony which is in force have to be complied with. Applications for renovation without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship can be

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W.P.(C).21378/10-V -6-

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considered by the Secretary after informing the District Collector in form in Appendix-N duly filled by the applicant and verified by the Secretary. The permit shall be issued only after the receipt of the concurrence by the District Collector.”

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So also proviso to sub-rule(8) of Rule 7 of the Kerala Panchayat Building Rules, 2011 reads as follows:

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Provided in the case of construction of new building or reconstruction or alteration or addition or extension of existing building for religious purpose or worship, prior approval or clearance or permission and concurrence as the case may be, of the District Collector concerned shall be obtained and the conditions stipulated in the 'Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony' which is in force have to be complied with. Applications for renovation without involving additional built-up area or structural alteration of existing buildings for religious purpose or places of worship can be considered by the Secretary after informing the District Collector in form in Appendix-N duly filled by the applicant and verified by the Secretary. The permit shall be issued only after the receipt of the concurrence of the District

W.P.(C).21378/10-V

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Collector”.

The above provision will indicate that prior approval or clearance or permission and concurrence as the case may be, shall be granted by the District collector after compliance of the conditions stipulated in the “Manual of Guidelines to Prevent and Control Communal Disturbances and to promote Communal Harmony”. On a perusal of the said manual formulated by the Ministry of Home Affairs, Government of India, it is evident that the same is intended to streamline actions to control and maintenance of communal harmony and for prevention and avoidance of communal disturbances/riots and also to streamline measures of control and protection, as well as deals with relief to be taken on the event of any such disturbances occurring. A perusal of the entire manual reveals that clause 3.16 thereon deals with approval of plan for construction of religious places, which reads as follows:

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“Any construction of religious places shall be made only after the proposals/plans are duly approved by the appropriate authority/ statutory body and at the earmarked places. Cases of construction of unauthorized religious

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W.P.(C).21378/10-V -8-

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places should be dealt with severely under the existing laws. Negligence on the part of the District administration in implementing this direction should be seriously viewed and guilty dealt with.”

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Going by the provisions quoted above, I do not find any authority enabling the District Collector to refuse the approval or permission on the basis of ascertainment of the necessity for having a religious building or place of worship. Such a proposition cannot be accepted since the District Collectors are not the authorities competent to make any such study or ascertainment with respect to necessity for having religious buildings or places of worship. Itt should be always left to the decision of the members of each and every community to fix places of their own choice for establishment of religious buildings and places of worship. Considering the rights protected through the Constitution of India with respect to freedom for profession of any religion, nobody can be insisted that he should not establish any place of worship at any particular site, within any particular distance from any existing similar building or place of worship. Of course, the Government is

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at liberty to bring reasonable restrictions with a view to ensure maintenance of communal harmony or to curb or prevent communal disturbances, riots, violences, etc. But, under the guise of such power vested on the Government which in turn is delegated to the District Collectors, they should not be permitted to impose any restriction on establishment of places of worship. Any discretion given to them for evaluating necessity for such establishment of religious buildings or places of worship, is not in contemplation of the legislature. The constitutional freedom and rights prevailing in this country is to the extent of permitting any individual citizen even to have their own place of worship or a separate building for religious purpose in his own property. The Government is not at liberty to bring any restrictions to such right, merely assigning the reason that there is no necessity for having such place of worship.

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On the facts of this case, the impugned orders reveal that the rejection was solely on the basis that the report of the Tahsildar is to the effect that, enquiry conducted has not revealed necessity for a new mosque at

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W.P.(C).21378/10-V

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the proposed site. Even though it is stated in the counter affidavit that there is an apprehension in the mind of the 1^st respondent that there may be chances of communal violence in the area in question, the same can only be considered as an improvement of the case with respect to the facts and situations prevailing while the impugned decision was taken. Further, the reports produced by the petitioner as Ext.P5 and P6 are not at all supportive of any such apprehension and there is absolutely no basis for having any such apprehension.

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Under the above mentioned circumstances, I am of the opinion that the power envisaged on the 1^st respondent under the proviso to Rule 7 (6B) of the Kerala Municipality Building Rules, 1999 or under the proviso to Rule 7(8) of the Kerala Panchayat Building Rules, 2011 or any of the provisions contained in the “Manual of Guidelines to Prevent and Control Communal Disturbances and to promote Communal Harmony” will not authorise him to decline approval for the building permit for construction of any new building for religious purposes or place of worship, on the ground that there is no necessity for such a religious

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W.P.(C).21378/10-V

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building or place of worship at the proposed site. Hence the writ petition is allowed and Ext.P1 to P4 proceedings of the 1^st respondent are hereby quashed. The

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1^st respondent is directed to accord approval for construction of the mosque in question on the basis of application forwarded by the 3^rd respondent Panchayat, if it is otherwise in order, at the earliest possible, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment.

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C.K.ABDUL REHIM, JUDGE.

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okb

Aboobacker.P. v. the District Collector and Others

Case brief

What is this about?

What did the court decide?

Aboobacker.P. v. the District Collector and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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