Establishment Of A Religious Place By Any Community Should Not Be Curtailed Merely Due To Opposition From Other Groups: Kerala HC
The Kerala High Court observed that in a democratic nation, the establishment of a religious place by any community should not be curtailed merely due to opposition from other groups.
The Court was considering a Writ Petition by the owner of a prayer hall in Kadalundi village against denial of NOC on pretext of objections from the members of the other communities.
The single-bench of Justice Mohammed Nias C. P. observed, "The reports of the officers of the district administration show that they fear a law and order situation on account of the objection made by the members of other communities. Merely because one community opposes the setting up of a religious place by another community, it cannot be assumed that there will be disharmony or breach of peace. This cannot be a reason at all, more particularly when the basis of the said apprehension is not revealed from any acceptable material except the anticipated ones which the district administration is duty bound to avert."
The Petitioner was represented by Senior Advocate S. Sreekumar while the Respondent was represented by Government Pleader Devishri R.
The petitioner owned a prayer hall in Kadalundi Village since 2004. It was submitted that no Juma prayer was conducted, no amplifiers or speakers were used, and the prayer hall was only for offering prayers by the religious people. The petitioner had applied for a building permit for changing the roof of the building and for approval of the plan and was ultimately given a permit. Later, the petitioner was issued with a notice by the Secretary of the Panchayat alleging that complaints were received from neighbours regarding illegal construction and directed the petitioner to stop the construction. The petitioner denied any illegal construction as alleged in a reply filed subsequently.
Apprehending demolition of the roof of the building, the petitioner filed a Writ Petition challenging the order whereby an interim-stay was granted in 2005 which was extended until further orders in 2015. Thereafter, the Revenue Divisional Officer issued a notice for a hearing to be held to resolve the said complaint from the local residents. The RDO, during the proceedings, directed to stop the functioning of the prayer hall as it will cause communal disharmony, which was challenged by the petitioner. The Court, in 2016, passed an interim-order permitting the petitioner to use the building as a prayer hall, but on condition that the petitioner shall not use any loudspeaker or conduct any Juma prayer and shall not use it as a permanent place of worship.
Ultimately, the writ petition was disposed of in 2018 with direction to the District Collector to decide adverting to the reports from the police and revenue authorities, and till such time the interim order passed was directed to be maintained. The District Collector, in 2020 stating that there were objections from the members of the other communities in conducting the prayer hall and therefore, refused to issue the NOC. Panchayat also issued a letter directing the petitioner to stop the prayer hall.
Senior Counsel for the petitioner submitted that the impugned orders are illegal and in excess of the authority conferred on the District Director and without following the due principles of law. He relied on Article 26 and the Provisions of the Manual which governs grant of permission has to be understood in the context of Articles 25 and 26 and submitted that there are no interfaith disputes in the locality between two different religious community members and there was not even a single instance where the local administration or the police had interfered in the matter of public order due to the establishment of a place of religious worship since 2004.
On the other hand, the Counsel for the Respondent submitted that the petitioner has allegedly operated the premises as a mosque without obtaining a valid No Objection Certificate (NOC), thereby unlawfully converting a residential building into a place of worship and additionally alleged that unknown individuals have been visiting the site continuously, raising concerns during the pandemic.
The Court, at the outset noted that the District Police Chief's report reveals that "Niskaram" and "Bank Vili" activities have commenced at the Sunni Center, drawing individuals from various locales for religious purposes and highlights concerns regarding potential contamination of water sources affecting nearby homes, primarily inhabited by members of the Hindu community, who oppose the construction of a mosque at this site. It also warns that converting the Sunni Center into a mosque could undermine communal harmony and disrupt peace in the area.
It pointed out that the essential reason for the rejection of the application is the objection from the members of another community and disapproved of the same.
"The reports of the officers of the district administration show that they fear a law and order situation on account of the objection made by the members of other communities. Merely because one community opposes the setting up of a religious place by another community, it cannot be assumed that there will be disharmony or breach of peace. This cannot be a reason at all, more particularly when the basis of the said apprehension is not revealed from any acceptable material except the anticipated ones which the district administration is duty bound to avert," the court observed.
In a democratic nation where citizens possess the fundamental right to practice and profess their faith, the establishment of a religious place by any community should not be curtailed merely due to opposition from other groups, the court stressed.
"The principles articulated in the judgment of this Court in Fr. Geevarghese (supra) have been egregiously overlooked. Secularism and religious freedom are cornerstones of the Indian Constitution, yet the term "religion" remains undefined within its text. Religion, in its normative essence, is understood as a framework of beliefs in a transcendent reality. Conflicts among different faiths can disrupt public order, posing a threat to the secular fabric of our nation. It is imperative for the State machinery to maintain a delicate balance between safeguarding religious freedom and upholding the tenet of secularism when issuing guidelines in such matters," the court observed.
The Court called for a clear distinction to be drawn between public order and "law and order."
"The former pertains to collective societal harmony, while the latter relates to individual disputes or conflicts over tangible interests. The resolution strategies for these two types of disputes are fundamentally different. The State's focus on public order seeks to preserve communal harmony, while law and order issues are often confined to the interests of the parties involved. Objections raised by a handful of individuals from other faiths cannot serve as a valid basis to restrict the rights guaranteed under Articles 25 and 26 of the Constitution. Furthermore, the mere proximity of other mosques does not inherently justify the rejection of an application to set up another. The administration must protect the fundamental rights of all citizens, including the petitioner’s right to utilise his property lawfully. The difference between public order and law and order has not been appreciated while passing Ext.P8 order," the court observed.
The Court accordingly allowed the petition.
Cause Title: K.T. Mujeeb vs. State of Kerala (2024:KER:85279)
Appearances:
Petitioner-Senior Advocate S. Sreekumar, Advocate P. Martin Jose, Advocate Prijith, Advocate Thomas P. Kuruvilla, Advocate R. Githesh, Advocate Ajay Ben Jose, Advocate Manjunath Menon, Advocate Harikrishnan S.
Respondent- Government Pleader Devishri R., Advocate Vinod Singh Cheriyan, Advocate P.V. Anoop, Advocate T.M. Khalid, Advocate K.P. Susumitha, Advocate Phijo Pradeesh Philip, Advocate K.V. Sreeraj, Senior Advocate T. Sethumadhavan, Advocate M.P. Priyeshkumar
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