Allowed

Sree Kochu Malayalapuzha Devi Kshethra Samrakshna Samithy v. the District Collector

Kerala HC19 Nov 2019WP(C)/16134/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a District Collector''s refusal to grant permission for temple worship. The court held that declining permission solely on law and order grounds, distinct from communal harmony issues, was unsustainable and violated fundamental rights.

What did the court decide?

The impugned order is set aside and the first respondent is directed to extend permission sought by the petitioners.

Sree Kochu Malayalapuzha Devi Kshethra… — Constitutional and Fundamental Rights | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941

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WP(C).No.16134 OF 2019(N)

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PETITIONERS:

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1 SREE KOCHU MALAYALAPUZHA DEVI KSHETHRA SAMRAKSHNA SAMITHY REG.NO.T-2838/2007, BUND ROAD, ANANDAMOOLA, AZHAANKAAL, KAIMANAM P.O., THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS PRESIDENT M.REJIKUMAR, AGED 42 YEARS, S/O.MAHESAN.

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2 SREE KOCHU MALAYALAPUZHA DEVI KSHETHRAMSAMRAKSHANA SAMITHI,REG.NO.T-2838/2007, BUND ROAD, ANANDAMOOLA, AZHAANKAAL, KAIMANAM P.O., THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS SECRETARY, RAJESH B., AGED 36, S/O.BALACHANDRAN NAIR, KALLAMPILLY, VINAYAKA NAGAR, SREEKARYAM P.O., THIRUVANANTHAPURAM-695 002.

¶9

BY ADVS. SRI.S.SUDHEESH KUMAR SRI.K.B.DAYAL

¶10

RESPONDENTS:

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1 THE DISTRICT COLLECTOR, CIVIL STATION, KODAPPANAKUNNU P.O., PEROORKADA, THIRUVANANTHAPURAM, PIN-695 005.

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2 THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM CORPORATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM695 005.

¶13

3 THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM RURAL, THIRUVANANTHAPURAM- 695 033.

¶14

4 THE PRESIDENT, AZHANKAL ACTION COUNCIL, NEERAMANKARA, KAIMANAM, AZHANKAL, THIRUVANANTHAPURAM695 002.

¶15

R1, R3 BY SMT.RESHMI K.M.,GOVERNMENT PLEADER R2 BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) & SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION R4 BY ADV. SRI.NEMOM CHANDRABABU

¶16

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP[C] No. 16134 OF 2019 2

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J U D G M E N T

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A body named Sree Kochu Malayalapuzha Devi Kshekthra Samrakshana Samithi managing the affairs of a temple has come up in this writ petition challenging Ext.P20 order of the first respondent, the District Collector.

¶20

The relevant facts are the following: The temple is one established in the year 2007 in a temporary structure. The petitioners have constructed a few additional structures in the place of the original temporary structure without obtaining permission from the local authority, for the proper upkeep and maintenance of the temple. Though the additional structures constructed by the the petitioners conform to the applicable building rules, the local authority has not regularized the structures as the structures were constructed without the permission of the District Collector in terms of the guidelines issued by the Government as per G.O.(P).No. 217 of 2005 dated 25.7.2005 to prevent and control communal disturbances and promote communal harmony. Due to the aforesaid reason, and on the ground that the people in the locality have objections against the religious practices followed in the temple, the police have also not permitted the worshipers to offer worship in the temple. The petitioners, therefore, preferred an application to the first respondent for the approval of the District Authorities for the temple. The request made by the petitioner in this connection was turned down by the first

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WP[C] No. 16134 OF 2019 3

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respondent in terms of Ext.P15 order. Ext.P15 order has been set aside by this court in W.P.(C) No.37778 of 2017 and the matter was directed to be considered afresh on the ground that the same was vitiated for non-compliance of the principles of natural justice. Ext.P17 is the judgment in the said case. Ext.P17 was, later, reviewed and modified to the extent permitting the petitioner to light a lamp in the temple during the pendency of the application. The application of the petitioner was turned down again by the first respondent in terms of Ext.P20 order. Petitioner is aggrieved by the said order.

¶23

A counter affidavit has been filed by the first respondent supporting Ext.P20 order. Though the body of the people in the locality who are stated to be raising objections against the religious practices followed in the temple has been arrayed as the fourth respondent in the writ petition, no counter affidavit is filed by them in the matter.

¶24

Heard the learned counsel for the petitioners, the learned Government Pleader as also the learned counsel for the fourth respondent.

¶25

Ext.P20 order indicates that the permission sought by the petitioners was declined on the ground that there will be law and order issues in the area, if the permission sought by the petitioners is granted. In order to come to the said conclusion, the first respondent has relied upon three reports which are referred to in the order as

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WP[C] No. 16134 OF 2019 4

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items 21, 22 and 23, of which item No.21 is the report of the Sub Collector, Thiruvananthapuram dated 10.12.2018, item No.22 is the report of the District Police Chief dated 05.01.2019 and item No.23 is the report of the Assistant Police Commissioner of the District Special Branch dated 01.03.2019. Exts.P21(a) is the report of the Assistant Police Commissioner of the District Special Branch, Ext.P21(b) is the report of the District ub Collector, Thiruvananthapuram and Ext.P21(c) is the report of the District Police Chief, Thiruvananthapuram city.

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The relevant portion of Ext.P21(a) report reads thus:

¶29

“2016, 2017, 2018 ക�ലയളവ�ൽ ട�. ക�തത�ന� പവർതന� സ�ബന�ക�� നടത�പ� സ�ബന�ക�� മറ കമ സമ�ധ�ന പശങൾ ഒന� തന% റ�കപ�ർട� ന(യ�ട�ല�തത�കന. ന�ലവ�ൽ ഈ ക�തത�ന� പവർതനവമ�യ� ബനനപട� പക.ശത കമസമ�ധ�ന പശങൾ ന�ലവ�ൽ ഇല�തത�ണ�.എ%�ൽ ക�തത�ന മഴവൻ സമയ പവർതന�നമത� നൽക% പ�� ആ�ൻ ക:ൺസ�ൽ അ�ഗങള� ക�ത ഭ�രവ�ഹ�കള� തമ�ൽ സങർഷ� ഉണ�വ�ൻ സ�ധGത ഉനണന കരമന കപ�ലHസ� കIഷൻ S.H.O റ�കപ�ർട� ന(യ�ടളത�ണ� .

¶30

എ%�ൽ എകപ�ൾ ക�ത� തറന പവർത�പ�ക�ൻ തടങ�യത� മതൽ പറ� ന�ടകള�ൽ ന�ന� മറ� ധ�ര�ള� ആൾക�ർ ട�. സലത എത%ത�യ� ന�ടക�ർ പര�ത�നപടനണ�. ക�ത നടത�പ�ന� ന�യമ പക�രമള അനമത� ലഭGമ�ക�നത ട�യ�ൻ ട� ക�തത�ൽ നടത� വര% പജകൾ ന�ടക�രനട ഇടയ�ൽ ക�� ര�ഷHയകഭ.നമകനG അമർഷവ� വ�ക.Uഷവ� വളർതവ�നള സ�ധGത ഉണ�. ആയത കടതൽ കമസമ�ധ�ന പശങള�കലക� സങർഷത�കലക� നയ�കവ�നള സ�ഹ(രG� സഷ�ക�. ആയത�ന�ൽ ഈ

¶31

WP[C] No. 16134 OF 2019 5

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ക�തത�ന� പവർതന� തടര%ത� അഭ�ക�മGമല എനള വ�വര� അങയനട അറ�വ�ന� അനനര നടപട�കൾകമ�യ� റ�കപ�ർട� ന(യ നക�ളന.” The relevant portion of Ext.P21(b) reads thus:

¶33

"നക�ചമലയ�ലപഴ ക.വ� ക�ത� എ% കപര�ലള ആര�ധന�ലയ� സ�ത� ന(യ% ത�രവനതപര� ജ�ലയ�ൽ ത�രവനതപര� ത�ലക�ൽ കനമ� വ�കലജ�ൽ റH-സർകd 96/2-3-1 ഇൽ നപട 03.24 ആർ വസ ശH. നറജ�കമ�ർ കപര�ൽ കര� തHരവയ�ല� കകവശത�ലമ�ണ�. ട�. ആര�ധന�ലയ� പ�പൻകക�ട� ആഴ�ങൽ എ% സലത ഏത�ണ� 80 വർഷമ�യ� പവർത�കന. ര�വ�നല 7.30 മണ� മതൽ 12.30 വനരയ� കവക�ട� 5.30 മതൽ 8.30 മണ� വനരയമ�ണ� ക�ത� പവർത�ക%ത�. ട�. സലനത അയൽ ത�മസക�നരയ� പര�സരവ�സ�കനളയ� കനര�ൽ കകൾകകയണ�യ�. ശH. ര�കജഷ� , ശH. കഗ�പകമ�ർ, ശH. പ.Hപ� , ശH. ബ�ബ , ശH. കസതകമ�ഹനൻ , ശH. സ�. നടര�ജൻ എ%�വനര കനര�ൽ കകടത�ൽ ട�യ�ളകൾക ക�തത�ന� പവർതന� മല� ബദ�മടണ�ക%ത�യ� ക�തത�ന� അനമത� നൽകരനതന� ആവശGനപട�ര�കന. ട�. ക�തത�ന� പവർതനനത സ�ബന�� ന�ടക�ര�യ ശHമത� സത�ലക�, ശHമത� ശ�ന, ശHമത� ന(ലമ , ശHമത� ജ�നക�, ശH. ജയകമ�ർ എ%�വരനട നമ�ഴ� കരഖനപടതകയ� ട�യ�ളകൾക ക�ത� പവർതന� സ�ബന�� പര�ത�കൾ ഒന� തന% ഇല�നയന� അഭ�പ�യനപട�ര�കന. സലപര�കശ�ധനയനടയ� നമ�ഴ�കളനടയ� അട�സ�നത�ൽ സമയകമ� പ�ല�ച നക�ണ� പര�സരവ�സ�കൾക� ബദ�മട� കമസമ�ധ�ന പശങൾ ഉണ�ക%�ല�നയന കപ�ലHസ� റ�കപ�ർട� ന(യ% പ�� ആര�ധന�ലയ� പവർത�കനന�ന� അനമത� നൽക%ത�ൽ അപ�കത ഇനല% വ�വര� ഒറ�ജ�നൽ നമ�ഴ� പകർപ� സഹ�ത� റ�കപ�ർട� ന(യ നക�ളന.”

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WP[C] No. 16134 OF 2019 6

¶35

The relevant portion of Ext.P21(c) reads thus:

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"അകനUഷണത�ൽ ട�. ക�തത�ന� മഴവൻ സമയ പവർതന�നമത� നൽക% പ�� ആ�ൻ ക:ൺസ�ൽ അ�ഗങള� ക�ത ഭ�രവ�ഹ�കള� തമ�ൽ സങർഷ� ഉണ�ക�ൻ സ�ധGത ഉനണ%� കരമന കപ�ലHസ� കIഷൻ S.H.O. റ�കപ�ർട� ന(യ�ടളത�ണ�. ആയത�ന�ൽ ഈ ക�തത�നല പവർതന� തടര%ത� അഭ�ക�മGമല എനള വ�വര� അങയനട അറ�വ�ന� അനനര നടപട�കൾ സUHകര�ക%ത�ന�യ� ഇകത�നട�പ� അയകന.”

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As revealed from Ext.P21(a) report, there was no objection from any corner concerning the functioning of the temple up to 2018. It is, however, stated therein that if the temple is permitted to function, the members of the fourth respondent council may raise objections. It is seen from the report that the local people have objections against the large number of devotees coming to the temple which does not have the permission of the District Authorities. Though Ext.P21(a) refers to the nature of the religious ceremonies performed in the temple which are objected to by the local people, the finer particulars of the same are not divulged. Ext.P21(b) report indicates that only a faction of the public have objections against the functioning of the temple. The Sub Collector has, however, reported that if the police can tackle the law and order issues that may arise on account of the objections from the local people, permission can be granted. Ext.P1(c) report indicates that if the temple is permitted to function, there is likelihood of clashes

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WP[C] No. 16134 OF 2019 7

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between the members of the petitioner and the members of the fourth respondent, the action council.

¶40

The right to pursue religious practices subject to public order, morality and health and to the other provisions of Part III of the Constitution, is a fundamental right guaranteed to the citizens. The members of the petitioners are also entitled to the said right. It is in terms of the Government Order referred to in paragraph 2 above that the petitioners have applied for permission to the first respondent. The short question is as to whether the first respondent was justified in declining the permission sought by the petitioners for the reasons stated in Ext.P20. The objective of the guidelines, in terms of which the first respondent declined the permission sought by the petitioners reads thus:

¶41

“The biggest challenge to democracy is the threat to communal harmony by frustrated elements resorting to competitive communalism resulting to communal violence which leads to loss of lives and properties. In this context it is imperative on the part of the State to evolve guidelines to be adopted by the District administration to equip themselves to deal with communal violence firmly and at the same time to promote Communal Harmony for peaceful co-existence to bring about unity even in diversity.

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The following guidelines are issued earmarking the role of different agencies to deal with communal violence and also for promoting communal harmony.”

¶43

It is thus clear that the objective of the executive order is to deal with communal violence and for promoting communal harmony. Of course,

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WP[C] No. 16134 OF 2019 8

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if the religious practices pursued by the petitioners are against public order, morality and health or other provisions of Part III of the Constitution, the same can be prevented, as the fundamental right guaranteed under Article 25 of the Constitution to the members of the petitioners will not be available to them to follow such religious practices. From the contents of the reports relied on by the first respondent which are extracted in this judgment and the inference made by the first respondent from the said reports, it is seen that the district authorities maintain that there would be law and order issues in the area if devotees are allowed to offer worship in the temple. It is trite that law and order is entirely different from communal harmony and public order. The purpose of the guidelines referred to above is only to protect communal harmony and not to maintain law and order. The law and order is the responsibility of the State. The State cannot decline permission to establish a religious place, especially in a private land, merely for the reason that certain people in the locality do not like. [See Fr. Geevarghese v. District Collector 2014(4) KLT 553]. So long as the religious practices followed in the temple would not go against public order, morality and health or other provisions of Part III of the Constitution, the petitioners are entitled to the permission sought for. In the said view of the matter, the impugned order is unsustainable in law and the same is liable to be set aside.

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WP[C] No. 16134 OF 2019 9

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In the result, the writ petition is allowed, the impugned order is set aside and the first respondent is directed to extend to the samithi the permission sought by them.

Sd/-

P.B.SURESH KUMAR

JUDGE

PKK

WP[C] No. 16134 OF 2019 10

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE DATED 14.11.2007 MALAYALAPUZHA DEV SAMITHI, KARAMANA	REGISTRATION CERTIFICATE OF SREE KOCHU I KSHETHRA SAMRAKSHANA .
EXHIBIT P2	TRUE COPY OF THE PASSED BY THIS HO NO.27163/2014.	JUDGMENT DATED 12.02.2015 NOURABLE COURT IN WPC
EXHIBIT P3	TRUE COPY OF THE THE PETITIONERS I	APPLICATION SUBMITTED BY S (UNDATED).
EXHIBIT P4	TRUE COPY OF THE RESPONDENT DATED	ORDER PASSED BY THE 1ST 10.02.2016.
EXHIBIT P5	TRUE COPY OF THE PASSED BY THE 1ST	ORDER DATED 01.04.2016 RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE COURT DATED 19.04	ORDER OF THIS HONOURABNLE .2016 IN WPCNO.14980/2016.
EXHIBIT P7	TRUE COPY OF THE WPC NO.14980/2016	ORDER DATED 18.05.2016 IN .
EXHIBIT P8	TRUE COPY OF THE IN WPC NO.29149/2	JUDGMENT DATED 01.09.2016 016.
EXHIBIT P9	TRUE COPY OF THE ISSUED ON BEHALF	NOTICE DATED 29.09.2016 OF THE 1ST RESPONDENT.
EXHIBIT P10	TRUE COPY OF THE PASSED BY THE ADD MAGISTRATE.	ORDER DATED 07.10.2016 ITIONAL DISTRICT
EXHIBIT P11	TRUE COPY OF THE WPC NO.3367/2016 COURT.	ORDER DATED 20.10.2016 IN PASSED BY THIS HONOURABLE
EXHIBIT P12	TRUE COPY OF THE THE 2ND RESPONDEN	MINUTES OF THE COUNCIL OF T DATED 10.01.2017.

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WP[C] No. 16134 OF 2019 11

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EXHIBIT P13		TRUE COPY OF THE JUDGMENT IN WPC NO.16945/2017 DATED 16.09.2017.
EXHIBIT P14		TRUE COPY OF THE ORDER DATED 06.11.2017 PASSED BY THIS HONOURABLE COURT IN WPC NO.35366/2017.
EXHIBIT P15		TRUE COPY OF THE ORDER WITH DATE 02.11.2017 HANDED OVER BY THE VILLAGE OFFICER, NEMOM TO THE PETITIONERS ON 10.11.2017.
EXHIBIT P16		TRUE COPY OF THE LETTER ISSUED BY THE STATE PUBLIC INFORMATION OFFICER AND JUNIOR SUPERINTENDENT DATED 15.11.2017 TO MR.SATHISH BABU.
EXHIBIT P16	(a)	TRUE COPY OF THE LETTER DATED 23.10.2017 ISSUED BY THE POLICE ASSISTANT COMMISSIONER, DISTRICT SPECIAL BRANCH THIRUVANANTHAPURAM.
EXHIBIT P16	(b)	TRUE COPY OF THE REPORT OF THE SUB INSPECTOR OF POLICE, KARAMANA POLICE STATION(UNDATED).
EXHIBIT P16	(c)	TRUE COPY OF THE LETTER DATED 23.10.2017 ISSUED BY THE DISTRICT POLICE CHIEF, TRIVANDRUM.
EXHIBIT P16	(d)	TRUE COPY OF THE LETTER DATED 20.10.2017 ISSUED BY THE SUB COLLECTOR, TRIVANDRUM.
EXHIBIT P16	(e)	THE TRUE COPY OF THE FILE IN WHICH THE DEPUTY COLLECTOR MR.JOHN SAMUAL HAS RECORDED THE PROCEEDINGS IN RESPECT OF HEARING WHICH LEAD TO THE ISSUANCE OF EXT.P15.
EXHIBIT P17		TRUE COPY OF THE JUDGMENT DATED 30.10.2018 PASSED BY THIS HONOURABLE COURT IN WPC NO.37778/2017.
EXHIBIT P18		TRUE COPY OF THE JUDGMENT DATED 04.12.2018 PASSED BY THIS HONOURABLE COURT IN R.P.NO.996/2018 N WPC NO.37778/2017.
EXHIBIT P19		TRUE COPY OF THE LAWYER NOTICE SENT BY THE PETITIONERS TO THE 1ST RESPONDENT DATED 03.04.2019.
EXHIBIT P20		TRUE COPY OF THE ORDER NO.S11-3745/2016 DATED 29.05.2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS.

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WP[C] No. 16134 OF 2019 12

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EXHIBIT P21 (a) TRUE COPY OF THE REPORT DATED 01.03.2019 SUBMITTED BY THE ASSISTANT POLICE COMMISSIONER TO THE 1ST RESPONDENT.

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EXHIBIT P21 (b) TRUE COPY OF THE REPORT OF THE SUB COLLECTOR DATED 10.12.2018. EXHIBIT P21 (C) TRUE COPY OF THE REPORT DATED 05.01.2019 SUBMITTED BY THE DISTRICT POLICE CHIEF TO THE 1ST RESPONDENT.

Sree Kochu Malayalapuzha Devi Kshethra Samrakshna Samithy v. the District Collector

Case brief

What is this about?

What did the court decide?

Sree Kochu Malayalapuzha Devi Kshethra Samrakshna Samithy v. the District Collector

Case brief

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What did the court decide?

What the court decided

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