Allowed

Pothujanam Road Residents Association v. State of Kerala

Kerala HC23 Nov 2017WP(C)/4634/2017

Case brief

AI extract

What is this about?

The High Court held that the Kerala State Commission for Minorities lacked jurisdiction to pass an order directing the resumption of a canceled permit. The Court quashed the Commission's order, upholding the District Collector's restriction on communal religious activities while allowing individual prayers without loudspeakers or outsiders.

What did the court decide?

The writ petition was allowed; the impugned order dated 6.6.2016 was set aside. No costs were awarded.

Pothujanam Road Residents Association… — Constitutional and Fundamental Rights | Kerala HC (2017)

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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 K.VINOD CHANDRAN

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THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939

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WP(C).No. 4634 of 2017 (D)

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PETITIONER(S):

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POTHUJANAM ROAD RESIDENTS ASSOCIATION, REG.NO.T.552/97, KUMARAPURAM, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM.695 011, REPRESENTED BY ITS SECRETARY K.V.GIRIJA NAIR.

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BY ADVS.SRI.C.P.PEETHAMBARAN SMT.MINI.V.A.

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001.

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2. THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001.

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3. KERALA STATE COMMISSION FOR MINORITIES, ANJANEYA, T.C.9/1012-2, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010, REPRESENTED BY ITS REGISTRAR.

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4. KERALA STATE HUMAN RIGHTS COMMISSION, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY ITS REGISTRAR.

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5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.695 001.

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WP(C).No. 4634 of 2017 (D)

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6. THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM.695 001.

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7. THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. PIN-695 001.

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8. P.N.ABDUL SHAFEEK, T.C.NO.14/325(1), POTHUJANAM ROAD, KUMARAPURAM, THIRUVANANTHAPURAM. PIN-695 001.

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R1,R2,R5 & R6 BY GOVERNMENT PLEADER SMT.VINEETHA HARIRAJ R7 BY ADVS. SRI.N.NANDAKUMARA MENON (SR.)

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SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION R8 BY ADVS. SRI.P.A.MOHAMMED SHAH

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SRI.K.ARJUN VENUGOPAL

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SMT.P.M.MAZNA MANSOOR

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SMT.MARY RESHMA GEORGE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4634 of 2017 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE LETTER OF THE 6TH RESPONDENT ADDRESSED TO THE 5TH RESPONDENT AND 7TH RESPONDENT DATED 6.8.2012.

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EXHIBIT P2 TRUE COPY OF THE LETTER DATED 27.9.2012 OF THE 6TH RESPONDENT ADDRESSED TO THE 5TH RESPONDENT AND 7TH RESPONDENT.

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EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16.2.2013 OF THE 5TH RESPONDENT.

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EXHIBIT P4 TRUE COPY OF THE ORDER DATED 6.11.2013 OF THE 4TH RESPONDENT COMMUNICATED TO THE PETITIONER BY COVERING LETTER DATED 19.11.2013.

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EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE MEETING DATED 21.5.2013 ISSUED TO THE PETITIONER UNDER RIGHT TO INFORMATION ACT.

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EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS DATED 11.12.2013 OF THE 4TH RESPONDENT COMMUNICATED TO THE PETITIONER ON 26.12.2013.

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EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30.1.2014 OF THE 5TH RESPONDENT.

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EXHIBIT P8 TRUE COPY OF THE ORDER DATED 19.5.2014 OF THE 7TH RESPONDENT.

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EXHIBIT P9 TRUE COPY OF THE ORDER DATED 28.10.2014 OF THE 5TH RESPONDENT.

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EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 2.7.2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXHIBIT P11 TRUE COPY OF THE ORDER DATED 6.6.2016 OF THE 3RD RESPONDENT.

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EXHIBIT P12:- TRUE COPY OF THE NOTICE ISSUED BY THE 5TH RESPONDENT TO THE TAHSILDAR, THIRUVANANTHAPURAM.

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WP(C).No. 4634 of 2017 (D)

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EXHIBIT P13:- TRUE COPY OF THE REPORT OF THE DISTRICT POLICED CHIEF TO THE 5TH RESPONDENT.

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EXHIBIT P14:- TRUE COPY OF THE NOTICE DATED 19.1.2015 ISSUED FROM REVENUE DEPARTMENT TO THEN SECRETARY DR.T.SURESH KUMAR.

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EXHIBIT P15:- TRUE COPY OF THE COMPLAINT FILED BEFORE THE 2ND RESPONDENT BY THE 8TH RESPONDENT THROUGH HIS SON.

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RESPONDENT(S)' EXHIBITS

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EXHIBIT R8(A):- THE TRUE COPY OF THE PERMIT ISSUED BY THE 7TH RESPONDENT TO THIS RESPONDENT DATED 15.6.2006.

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EXHIBIT R8(B):- THE TRUE COPY OF THE REVIEW PETITION FILED BY THE 8TH RESPONDENT DATED 01.3.2014.

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EXHIBIT R8(C):- THE TRUE COPY OF THE NOTICE DATED 23.6.2015.

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EXHIBIT R8(D):- THE TRUE COPY OF THE REPORT SUBMITTED BEFORE THE 3RD RESPONDENT DATED 23.6.2015.

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EXHIBIT R8(E):_ THE TRUE COPY OF THE ORDER PASSED BY THE 7TH RESPONDENT DATED 30.8.2016.

/TRUE COPY/

PS TO JUDGE

K. VINOD CHANDRAN, J.

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=====================

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W.P.(C)No.4634 of 2017- D

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========================== Dated this the 23^rd day of November, 2017

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Judgment

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The petitioner a Residents' Association is aggrieved with the order passed by the Minority Commission as per Ext.P11. The Residents' Association was concerned with the prayers conducted in a nearby building, which was not constructed or established as a religious institution. The District Police Chief by Ext.P1 had informed the District Collector that there is a law and order situation, insofar as the conduct of prayers in a building owned by the 8^th respondent, by persons, who are not natives of the locality. There were regular prayers held, in a commercial building, not established as a religious institution, which caused religious disharmony in the locality, was the report of the District Police Chief.

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W.P.(C) No.4634/2017

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A similar report was also forwarded to the Mayor of the Corporation by Ext.P2. The District Collector had considered the issue and by Ext.P3 found that there was no sanction obtained to carry on a mosque in the building and that it was not a building constructed for religious purposes. The District Collector hence held that there can be no community prayers conducted in the building. The 8^th respondent's submission was that they were carrying on a dormitory, wherein persons who seek medical help were residing. The residents of the building were carrying on the prayer as per Islamic customs, was the contention raised. The District Collector in Ext.P3 made a reservation that the residents in the building and the members of the management could carry on individual prayers.

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The District Collector by Ext.P3, clearly interdicted

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the use of the place as a religious establishment. The petitioner

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W.P.(C) No.4634/2017

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dissatisfied with that, was before the Human Rights Commission, which directed further action to be taken against the religious institution. Based on the directions a meeting was convened of the District revenue administration and the local authority in the chambers of the Principal Secretary, the minutes of which are seen at Ext P5. Ext.P5 also recommended stringent action. By Ext.P6 the Human Rights Commission passed a comprehensive order directing the District Collector and the Corporation to conduct enquiry as to the activities carried on in the building especially allegations of seditious and terrorist activities. It was also noticed that there were prayers conducted with loudspeakers which were directed to be stopped.

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The District Collector thereupon found that the reservation made in the earlier order, as to prayer permitted of individuals was being misinterpreted. Ext. P7 order was passed

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prohibiting all religious activities inside the building. The Trivandrum Corporation by Ext.P8 canceled the Occupancy Certificate of the building. In the meanwhile, there was a review filed against the District Collector's order, which was rejected as

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per Ext.P9. Later, Ext.P8 was filed before the Minority Commission, which passed Ext.P11 order, which is impugned herein.

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The learned Counsel for the 8^th respondent would specifically rely on Section 9(b) of the Kerala State Commission for Minorities Act, 2014. It is argued that there is a violation of Article 25 of the Constitution of India, insofar as restricting regular prayers which according to Islamic tenets has to be carried on by every one, five times a day. It is also undertaken that there are no communal prayers conducted and individually the residents alone carry on prayers.

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W.P.(C) No.4634/2017

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Having looked at the issue and also having considered the orders passed by the statutory authorities, this Court is of the opinion that the powers of the Commission does not extend to passing an order in the nature of Ext.P11. The orders passed by the District Collector restricted the establishment of a religious institution for which specific sanction is required under the Kerala Municipality Act, 1994 and the Kerala Municipality Building Rules, 1999. A sanction has also to be obtained from the District Collector as per the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony -2005. When the statutory authorities have passed an order, there cannot be any interference caused by the Commission. The ground raised is of violation of Article 25, which in any event is not available in the present case. Article 25 and its exercise is also subject interalia to

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public order which the State intends to regulate by the fore mentioned Act, Rules and the Manual; the latter of which has been given statutory recognition by incorporation in the Building Rules.

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The restriction imposed is only insofar as not carrying on any communal prayers and a religious institution being regularly carried on. Of course, individuals cannot be restricted from carrying on their prayers, which even the District Collector has not attempted. Even in the subsequent order passed at Ext. P7 religious activity alone has been prohibited. No restriction can be made of an individual offering prayers in his residence; but that cannot result in any public unrest by use of loud speakers and the like. It is seen from the report of the Corporation, which is filed along with the counter affidavit and produced before the Minority Commission that when an

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W.P.(C) No.4634/2017

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inspection was conducted, there were prayers carried on by 8 adult males of which 6 were persons, who were residing in the building. Hence, it cannot be stated that the 8^th respondent had been complying with the undertaking. There were two persons who were outsiders and who were not residents or of the Management, as is evidenced from Ext.R8(d).

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The Minority Commission does not have the power to pass an order in the nature of Ext.P11. The functions of the Commission relied on by the 8^th respondent to invoke its jurisdiction is Section 9(1)(b) which reads as under:

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9(1)(b): to enquire and monitor the manner of functioning of various safeguards provided, in the Constitution of India or under any other law or under any order of the Government, for the welfare, protection and empowerment of the minorities in Kerala;

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The monitoring of the safeguards provided for the

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welfare, protection and empowerment of minorities does not

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extend to interfering in orders passed by statutory authorities intended also at maintaining religious harmony in the larger community. The Commission cannot direct the resumption of the canceled permit, for which the 8^th respondent would have to avail the statutory remedies. Ext.P11 is hence, set aside.

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However, the undertaking of the 8^th respondent that no communal prayers are carried on is recorded. The 8^th respondent also cannot use loud speakers nor can he permit a stranger, ie: not one residing or working in the building to carry on such prayers. No religious activities shall be carried on in the building, which is used as a dormitory, is the interdiction made by the District Collector. The 8^th respondent shall ensure that the details of the residents in the building is recorded in a register and the District Collector or the District Police Chief or any authorised officer would be entitled to inspect the premises

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and verify the register and also the inmates at any time. If any untoward actions or illegal activities are seen carried on, the authorities shall have the power to immediately close down the premises. Reserving such liberty, the writ petition would stand allowed, setting aside Ext.P11 order. No costs.

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Sd/- K. VINOD CHANDRAN, JUDGE

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SB/23/11/2017

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// true copy //

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P.A to Judge

Pothujanam Road Residents Association v. State of Kerala

Case brief

What is this about?

What did the court decide?

Pothujanam Road Residents Association v. State of Kerala

Case brief

What is this about?

What did the court decide?

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