T.Anasuya, vs State Of Andhra Pradesh,
2022 Latest Caselaw 1972 AP

       HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

               WRIT PETITION No.2062 of 2021

ORDER:

The petitioners are residents of Kuthukuluru Village,

Anaparthi Mandal, East Godavari District.

2. It is the case of the petitioners that from February

and March, 2020 the 8th respondent who is in possession of the

plot in D.No.2-79 had started gathering people in a large

number and was conducting prayers with mikes. Being

aggrieved by the said activities even before February and March,

the petitioners are said to have given a complaint to the 7th

respondent on 10.05.2019 due to which, the 7th respondent

issued a notice to the 8th respondent on 03.07.2019. The

petitioners are also said to have given complaints to the Andhra

Pradesh Pollution Control Board, on account of the noise

pollution, caused by the 8th respondent.

3. The petitioners contend that in January, 2021 the

8th respondent demolished an existing shed in house bearing

D.No.2-79 and commenced construction activities. At that stage,

the petitioners came to know that the 2nd respondent-District

Collector had granted permission to the 8th respondent, on

05.09.2020, for construction of a public place of worship under

Rule 26 of the Andhra Pradesh Gram Panchayat Land

Development (Layout and Building) Rules, 2002 (for short

„Rules, 2002‟) issued under G.O.Ms.No.67, dated 26.02.2002, as

amended by G.O.Ms.No.376, dated 29.11.2012. The said Rule

reads as follows:

"No site shall be used for the construction of a building intended for public worship or religious purposes without the prior approval of the Collector of the District who may refuse such approval if, in his opinion, the use of the site for the proposed construction of the building is likely to endanger public peace and order, after giving an opportunity to the applicant to show cause against such refusal".

4. The petitioners being aggrieved by the said

permission, granted by the 2nd respondent, have approached

this Court, by way of the present writ petition seeking a Writ of

Mandamous declaring the action of the respondents 2 to 4 and

7 in considering the application of the 8th respondent, for

construction of a place of public worship and also to set aside

the permission granted by the 2nd respondent on 05.09.2020.

5. It is the case of the petitioners that the said

permission was granted by the 2nd respondent on the basis of a

report said to have been given by the 5th respondent that the

neighbours in the vicinity of the said plot had given no objection

and consented for construction of the public place of worship.

The petitioners contend that they are neighbours of the said plot

and they have not given any such consent or no objection for

the construction of this public place of worship. The petitioners

further contend that they had infact being given complaints

against the worship being carried out in this plot even before

permissions had been granted by the 2nd respondent and the

question of giving consent would not arise.

6. The respondents 2 and 5 have filed separate counter

affidavits. The 2nd respondent states that the permission had

been granted on 05.09.2020 based on the resolution and

proposal received from the Panchayat Secretary of the 7th

respondent and considering the fact that the proposed Church

was in existence in 50 years long. The 5th respondent, in his

counter affidavit stated that the petitioners in the writ petition

are the neighbours of D.No.2-79. He further states that

permission was accorded for construction of the proposed public

place of worship but construction could not be taken up due to

the objections raised by the neighbouring public.

7. The 8th respondent has filed a counter affidavit

stating that the house plot in D.No.2-79 had been donated to

the father of the 8th respondent on 29.11.1978 through a

registered deed of Gift bearing No.2421 of 1978 for the purpose

of permanent construction of a public place of worship.

However, such a direction could not be carried out earlier and

prayers were being conducted in a shed set up in the said land

for about 50 years. The 8th respondent goes on to state that as

the shed had become dilapidated, permission was sought for

demolition of the said shed and for construction of a proper

building to carry on public worship. This application was placed

before the 7th respondent-Gram Panchayat which passed a

resolution dated 28.04.2020, for placing the application before

the 2nd respondent-District Collector in accordance with Rule 26

of the Rules. Subsequently, permission was accorded by the 2nd

respondent on 05.09.2020 and thereafter, the 7th respondent

had given building permission on 12.10.2020. The 8th

respondent contends that in view of the permissions granted by

the 2nd respondent-District Collector and the 7th respondent-

Gram Panchayat, the respondent No.8, is entitled to carry on

construction of the public place of worship.

8. Sri K.K.Durga Prasad learned counsel, appearing for

the 8th respondent would also reiterate the stand of the 8th

respondent. He would also submit that the present writ petition

is not maintainable as there is an adequate effective alternative

remedy of revision to the Government under Section 264 of the

Panchayat Raj Act, 1994.

9. Heard Sri K.S.Murthy learned counsel, appearing for

the petitioners, Sri K.K.Durga Prasad learned counsel,

appearing for the 8th respondent, Sri I.Koti Reddy learned

standing counsel, appearing for the 7th respondent and the

learned Government Pleader for Panchayat Raj for respondents

2 to 5.

10. Before going into the merits of the case, it is

necessary to deal with the preliminary objection raised by the

8th respondent regarding the maintainability of the writ petition.

11. Sri K.K.Durga Prasad learned counsel, appearing for

the 8th respondent relied upon a judgment of a Division Bench

of the erstwhile High Court of A.P in W.P.No.35527 of 2012

dated 20.11.2012 to contend that in view of the effective

alternative remedy being available, the writ petition would not

be maintainable.

12. A perusal of the said judgment would clearly show

that the Division Bench while observing that the writ petition

could not normally be taken up where an effective alternative

remedy is available had also held that the said discretion to

remand the petitioners to the remedy of an alternative remedy is

with the Court, hearing the writ petition. In the present case,

relegating the petitioners to the alternative remedy of revision at

this stage after more than one year has elapsed and after

interim directions had also granted in this writ petition, would

only cause unnecessary delay in a decision in the matter.

Further, the issues raised in the writ petition would be better

served by a decision being given by this Court. In the

circumstances, the objection of the 8th respondent on this

ground is rejected.

13 The challenge in the present writ petition is against

the building permission granted by the Gram Panchayat based

on the order of the District Collector-2nd respondent dated

05.09.2020. The order of the District Collector-2nd respondent

dated 05.09.2020 reads as follows:

"In the ref.4th cited, the Divisional Panchayat Officer, Rajamahendravaram has submitted the proposal stating that the Kuthukuluru Gr.Pt., has resolved requesting the authorities to issue necessary permission for the proposed construction of said Church, and the surround people of the proposed Church area have given their consent that they have no objection for the proposed construction of said Church in the Sy.No.66 and finally requested the authorities to take necessary action as per G.O.Ms.No.376, PR&RD (Pts.IV) Dept., Dt.29-11-2012."

14. A perusal of the above extract would show that the

2nd respondent-District Collector had granted approval on the

ground that the neighbours had given their consent for the

proposed construction of the public place of worship. The 2nd

respondent and the 5th respondent had given further reasons in

the counter affidavits filed by them. It is settled law that the

Court exercising judicial review would be looking at only the

order which is impugned before the Court and the respondents

cannot improve the case by subsequent affidavits. (Please see

Mohinder Singh Gill and Ors., vs. The Chief Election

Commissioner, New Delhi and Ors., reported in AIR 1978 SC

851)

15. Rule 26 of the Rules extracted above would show

that the Collector has to give or refuse permission, for

construction of a house of worship on the ground of future law

and order disturbances. The said rule, to the mind of this Court,

grants uncanalised and arbitrary power to the 2nd respondent-

District Collector to determine whether a public place of worship

can be constructed anywhere. This Rule does not prescribe any

procedure nor any guidelines as to how the 2nd respondent-

District Collector is to arrive at a conclusion as to whether the

construction of said place of public worship would cause law and

order problems. This Court refrains from saying anything further

as the said Rule is not under challenge before this Court.

16. As the said Rule does not provide any guidelines or

procedures, the impugned order of the 2nd respondent dated

05.09.2020 has to be dealt with in accordance with the reasons

set out in the said order. As mentioned above, the said order has

been passed on the basis of the report said to have been given by

the 5th respondent to the 2nd respondent that the neighbours

have given their consent. This report of the 5th respondent has

been attached to the counter affidavit filed by the 5th respondent.

The relevant part of this report reads as follows:

"The neighbours of the Church have also consented for the same".

17. No details have been set out in the report as to the

manner in which this information has been obtained by the 5th

respondent. There is also no mention of how the 5th respondent

had arrived at this conclusion in the counter affidavits filed by

the 5th respondent. In view of the fact that the 5th respondent

has not chosen to set out any facts relating to this issue and in

view of the fact that the 5th respondent has not chosen to deny

the specific allegation of the petitioners that they had not given

consent, it must be held that the said contention remains

uncontroverted and the observation of the 5th respondent in his

report is clearly not passed on any facts or any material before

the 5th respondent.

18. Once the very foundation of the decision goes, it

would be trite to observe that the order would have to go.

19. In the circumstances, the impugned order dated

05.09.2020 is set aside and the matter is remanded back to the

2nd respondent for an objective determination as to whether

construction of the said place of worship is conducive to law and

order or whether such a construction and performance of public

prayers in the said place would cause law and order problems.

This Court is not going into the question of sound pollution at

this stage as the said issue would only arise depending upon the

permissions that may be granted, if any.

20. As the building permission granted by the Gram

Panchayat is consequent to the permission granted by the 2nd

respondent in his proceedings dated 05.09.2020, the said

building permission would also abide by the result of the

decision taken by the 2nd respondent in relation to the question

of whether permission can be granted under Rule 26. Till then

the said permission cannot be relied upon or acted upon.

21. Before parting with this writ petition, it is necessary

to also direct the 2nd respondent to set out the guidelines or the

parameters that he would be taking into account for

determining whether permission is to be granted or not. This

would assist any future review of the order passed by the 2nd

respondent. Needless to say, the said decision will be after

taking into consideration the objections, if any that may be filed

by the petitioners before the 2nd respondent and after

opportunity of hearing to the 8th respondent. This exercise be

completed within three months, from the date of receipt of this

order.

22. Accordingly, the writ petition is allowed. There shall

be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

____________________________ R. RAGHUNANDAN RAO, J.

22.04.2022 RJS

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

WRIT PETITION No.2062 of 2021

22.04.2022 RJS