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2022 DIGILAW 681 (KER)

P. M. ABDUL JALEEL S/O MOIDU v. STATE OF KERALA

2022-08-08

SHAJI P.CHALY

body2022
JUDGMENT : SHAJI P. CHALY, J. 1. This writ petition is filed by the President of Salafi Masjid a Mosque situated at Alamthuruth, Vadakkekara , Paravur Taluk, Ernakulam District, seeking to quash Exhibit P6 order passed by the District Collector, Ernakulam dated 2.6.2016 prohibiting use of building bearing door No. XI/194/B for religious purposes, and consequential direction issued to the Revenue Divisional Officer, Fort Kochi-the 3rd respondent and the District Police Chief, Ernakulam Rural, to ensure that the building is not used for any religious purposes. 2. Brief material facts for the disposal of the writ petition are as follows. 3. According to the petitioner, the petitioner has constructed the building in question after securing Exhibit P3 building permit for construction of a prayer hall from the Secretary of Chittattukara Grama Panchayat the 4th respondent. After completion of the construction, prayer was being conducted allowing ladies to attend the prayer. Some objections happened to be raised from the community regarding Friday prayer permitting ladies to participate and there upon complaints were filed before the Revenue Divisional Officer and ultimately it reached before the District Collector, Ernakulam on the basis of a petition filed by the petitioner herein. Later, petitioner approached this Court and secured Exhibit P2 judgment in W.P. (C) No. 1526/2016 dated 15th January, 2016, whereby the District Collector the 2nd respondent was directed to consider the petition in accordance with law. 4. The case projected by the petitioner is that the District Collector had handed over the petition to the Additional District Magistrate, and he had passed Exhibit P6 order dated 2.6.2016 without considering the relevant documents and papers produced by the petitioner. It is pointed out that being aggrieved by Exhibit P6 order, even though petitioner had filed Exhibit P1 review petition stating that there are errors apparent on the face of the record, the District Collector has not passed orders in the review petition. It is thus seeking appropriate directions, this writ petition was filed. The sum and substance of the material contention is that, when the permit was granted in the year 2009 there was no provision under the Kerala Municipality Building Rules1999, which was made applicable to the panchayat area, for securing any prior permission from the District Collector and therefore the impugned order passed by the District Collector on that basis is arbitrary and illegal liable to be interfered with by this court. 5. The District Collector has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner. According to the District Collector, in Exhibit P2 judgment itself, it is clear that the District Collector is directed to dispose of Exhibit P2 mass petition dated 21.2.2011 and accordingly, the District Collector heard the petitioner and all concerned parties. It is also pointed out that Exhibit P6 order was passed taking into account the Police report and only on attaining subjective satisfaction, the prayer conducted in the building in question was prohibited. That apart it is submitted that in view of the directions contained in Exhibit P2 judgment, the review petition preferred by the petitioner cannot be considered. It is submitted that a prior permission is required to use a building for religious purposes as prescribed in “the Manual of Guidelines to Prevent and Control Disturbances and to Promote Communal Harmony, 2005” hereinafter called, “Guidelines-2005.” Therefore, according to the District Collector, the building is used for religious purposes without securing prior permission of the District Collector. That apart it is submitted that the functioning of the prayer hall is in not accordance with the guidelines prescribed in the Guidelines-2005. Other contentions are also raised. 6. It is also submitted that even though Rule 7 of the Kerala Municipality Building Rules, 1999 was amended only w.e.f. 21.6.2010 incorporating sub-rule 6B thereto along with a proviso, by which prior permission of the District Collector is required to construct a building for religious purposes, the Manual of Guidelines-2005 was in force when the petitioner secured Exhibit P3 permit on 22.5.2009. Therefore, according to the District Collector, since the religious activities are conducted in the building in question without following the mandatory procedure contemplated under the Guidelines-2005, the District Collector is vested with ample powers to interdict the same. 7. Petitioner has filed a reply affidavit reiterating the stand adopted in the writ petition and refuting the contentions advanced by the District Collector in the counter affidavit. 8. The 5th respondent has filed a detailed counter affidavit basically supporting the contentions advanced by the District Collector, to which also, petitioner has filed a reply. 9. I have heard learned senior counsel for the petitioner Sri. T.P.M. Ibrahim Khan, learned standing counsel Sri. 8. The 5th respondent has filed a detailed counter affidavit basically supporting the contentions advanced by the District Collector, to which also, petitioner has filed a reply. 9. I have heard learned senior counsel for the petitioner Sri. T.P.M. Ibrahim Khan, learned standing counsel Sri. T.K. Ajithkumar for the Grama Panchayat, learned Senior Government Pleader Sri.Denny Devassy for the State and its officials, learned counsel Sri. P.K. Mohammed Puzhakkara for the 5th respondent viz. T.M. Bava Haji, President, Vadakkekkara Muslim Jama-Ath, North Paravur, Ernakulam District and perused the pleadings and materials on record. 10. The sole question to be considered is whether petitioner is entitled to carry on religious activities in the building in question without securing permission from the District Collector prior to the construction of the building in question? In fact, the Kerala Panchayat Building Rules came into force only in the year 2011. However, by virtue of the powers conferred under section 274 of the Kerala Panchayat Raj Act, 1994, the State Government has made the Kerala Municipality Building Rules, 1999 applicable to the Grama Panchayats on and w.e.f. 06.06.2007. It was accordingly that the petitioner had to secure a building permit for the construction of the Prayer Hall from the Panchayat under the Kerala Municipality Building Rules, 1999. However, rule 7 of the Kerala Municipality Building Rules, 1999 was amended on and w.e.f. 21.6.2010, by which sub-rule 6B is incorporated along with a proviso, which reads thus: “[6B] In the case of an application to construct or reconstruct a building or make alteration or addition or extension within any Security Zone, the Secretary shall consult the District Collector concerned before permission is granted. The District Collector, after getting the specific recommendations from the Director General of Police, shall furnish his reply. The objection if any raised and/or restriction and/or regulation if any suggested by the District Collector shall be complied by the Secretary while issuing the permit.” Provided that in the case of construction of new building or reconstruction: “[xxx] 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 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 concurrence of the District Collector.” 11. The case projected by the petitioner is that, Exhibit P3 building permit was secured by the petitioner on 22.5.2009 i.e. prior to the amendment of rule 7 incorporating the requirement of prior permission from the District Collector, and therefore, the findings rendered by the District Collector in Exhibit P6 impugned order holding so cannot be sustained under law. 12. But fact remains, the Manual of Guidelines-2005 issued by the Government of Kerala was in force on and w.e.f. 25th July, 2005, which was introduced to prevent and control communal disturbances, and to promote communal harmony. The said order is issued in continuation of the earlier orders dated 9.10.2001 and 16.1.2002. The objective of the said Guidelines-2005 was on account of the biggest challenge to democracy cropped up in the community due to the threat to communal harmony by frustrated elements resorting to competitive communalism resulting in communal violence which leads to loss of lives and properties; and in that context it became imperative for 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, and to bring about unity even in diversity. Various means and measures are provided in the said notification in order to maintain peace and harmony in the community. 13. Clause 17 makes it clear that the District Administration should evolve a common code of conduct in consultation with the leaders of different communities for the observance of their festivals. Clause 23 makes it clear that any construction of religious places should be made only with prior approval of the District authorities and at the earmarked place; that Cases of construction of unauthorised religious places should be dealt with severely under existing laws; and negligence on the part of the District Administration in implementing the direction should be seriously viewed and the guilty dealt with. 14. 14. Clause 23(a)(i) further makes it clear that renovation of existing places of worship can be undertaken after informing the matter to the District Collector. However, any addition or expansion to the existing structure should be done only with the previous permission and concurrence of the District Administration. Clause 23(a)(ii) makes it emphatically clear that any new construction of a place of worship shall be done only with the clearance of the District Administration and that any religious activities centred around a newly established place of worship should not precipitate communal tension or law and order situation, and that before sanctioning requests for construction of new places of religious worship, the District Administration should ensure this; and in such cases the District Administration may take recourse to shift the places of worship after arriving at a consensus with the parties concerned. Further imperative directions are issued there under to follow the stipulations contained under the Religious Institutions (Prevention of Misuse) Act, 1988. 15. Therefore, it can be seen that though the Municipality Building Rules made applicable to the Grama Panchayat was amended subsequent to Exhibit P3 permit granted by the Secretary of the Grama Panchayat, that by itself would not enable the petitioner to conduct the religious activities in the building in question without prior permission in view of the imperative stipulations contained under the Manual of Guidelines-2005. Therefore, there is force in the action initiated by the District Collector since admittedly, no prior permission was secured to construct the building for religious purposes. I am also of the view that there is a clear intention behind the aforesaid laws in case of any emergent situation due to any communal tension and in order to meet up with any requirements, and tide over such situations by conceiving strategies in advance. Therefore such laws in vogue cannot be brushed aside lightly. However, I think it is only appropriate that an opportunity is granted to the petitioner to re- agitate the issue especially due to the fact that the petitioner was under the impression that the requirement under the relevant municipality rules came into force subsequent to the building permit alone is the applicable provision. 16. However, I think it is only appropriate that an opportunity is granted to the petitioner to re- agitate the issue especially due to the fact that the petitioner was under the impression that the requirement under the relevant municipality rules came into force subsequent to the building permit alone is the applicable provision. 16. Anyhow, when the writ petition was admitted to the files of this Court on 21.6.2016, an interim order of stay of Exhibit P6 impugned order was granted for one month, which was later extended until further orders on 22.7.2016, which is still in force. In that view of the matter, I think it is only appropriate that the petitioner is granted liberty to approach the District Collector, Ernakulam with a suitable application seeking permission for utilising the building for religious purposes. This I say also because, in the Kerala Panchayat Building Rules, 2011, sub-rule 8(a) of Rule 7 deals with construction of a new building or reconstruction of building for religious purposes, which clearly specifies that the construction shall be carried out only after securing prior permission from the District Administration and also in accordance with the conditions stipulated in the Manual of Guidelines in force. 17. Therefore, the petitioner is directed to approach the District Collector, Ernakulam the 2nd respondent, with a proper application in accordance with law within three weeks from the date of receipt of a copy of this Judgment. If any such application is filed as above the District Collector is directed to consider the matter taking into account the provisions of the Manual of Guidelines to Prevent and Control Disturbances and to Promote Communal Harmony-2005 and the laws in vogue after providing an opportunity of hearing to the petitioner as well as respondents 6 and 7, at the earliest and at any rate within two months from the date of receipt of the application. The parties will be guided by the orders so passed by the District Collector. Till such time, the interim order granted by this Court will continue to be in force. However, it is made clear that, if the petitioner is not filing any application as directed above, the District Collector will be at liberty to implement the order impugned in the writ petition. 18. Writ Petition is disposed of accordingly.