Kerala High Court
Noorul Islam Samskarika Sangam vs The District Collector on 26 August, 2022
WP(C) NO. 792 OF 2022 1
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 28TH SRAVANA, 1944
WP(C) NO. 792 OF 2022
PETITIONER/S:
NOORUL ISLAM SAMSKARIKA SANGAM
THOTTEKKAD, AMARAMBALAM, REPRESENTED BY ITS SECRETARY
FARHAN K.T., AGED 35 YEARS, S/O. ALIKKUTTY,
KUNDANTHODIKA HOUSE, THOTTEKKAD, AMARAMBALAM, NILAMBUR
TALUK, MALAPPURAM DISTRICT, PIN-679332.
BY ADVS.
P.SAMSUDIN
M.ANUROOP
SHYAM NAIR
LIRA A.B.
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
MALAPPURAM, CIVIL STATION-676505, MALAPPURAM DISTRICT.
2 THE DISTRICT POLICE CHIEF,
MALAPPURAM, UP HILL P.O.- 676505, MALAPPURAM DISTRICT.
3 AMARAMBALAM GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, AMARAMBALAM P.O.- 679332,
NILAMBUR TALUK, MALAPPURAM DISTRICT.
4 THE SECRETARY,
AMARAMBALAM GRAMA PANCHAYATH, AMARAMBALAM P.O.- 679332,
NILAMBUR TALUK, MALAPPURAM DISTRICT.
WP(C) NO. 792 OF 2022 2
5 SUB INSPECTOR OF POLICE,
POKKOTTUMPADAM, POKKOTTUMPADAM -679332, NILAMBUR TALUK,
MALAPPURAM DISTRICT.
6 ANNIE M. GEORGE,
W/O. M.E.GEORGE, MARUTHAMANDIRAM HOUSE, THOTTEKKAD,
POKKOTTUMPADAM-679332, NILAMBUR TALUK, MALAPPURAM
DISTRICT.
BY ADVS.
N.KRISHNA PRASAD
A.K.HARIDAS
N.ANAND
SR.G.P.SMT.DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.08.2022, THE COURT ON 26.8.2022 DELIVERED THE FOLLOWING:
WP(C) NO. 792 OF 2022 3
CR
P.V.KUNHIKRISHNAN, J
---------------------------------------
W.P.(C) No.792 of 2022
--------------------------------------
Dated this the 26th day of August, 2022
JUDGMENT
The petitioner claims to be a Philanthropist Society. The
Society is registered under the Societies Registration Act, 1969, as
evident by Ext.P1 certificate. The Society obtained a property in
Re.Sy.No.210/8-2 of Amarambalam Panchayat in Malappuram
District with a commercial building in it. The petitioner Society
want to change the commercial building to a Muslim place of
worship. Admittedly there are about 36 Mosques within 5
kilometers radius of this building as per the Sanchaya Assessment
Software of the 4th respondent Amarambalam Grama Panchayat.
Even then the petitioner wants another place of worship for the
reason that 'five times prayer' is necessary for a Muslim and
therefore, a prayer hall is necessary within the vicinity of every
Muslim. If this is allowed then in every nook and corner of the
State place of worship and prayer halls would be necessary. In
such circumstances, a detailed consideration of this issue is
necessary.
2. The petitioner obtained the above mentioned property
based on Ext.P3 deed No.1718/1/2018 of Nilambur Sub Registrar
Office. The property was given to the Society by its original
owners free of cost (by Wakf) as per the Wakf deed as evident in
Ext.P3. The erstwhile owners of the property was one
Mr.Mohammed and Mr.Abdul Razaq. When the property was in
the ownership of Mr.Mohammed and Mr.Abdul Razaq, they started
to construct a building in it based on Exhibit P4 permit. At that
time the 6th respondent herein filed WP(C) No.18986 of 2017
apprehending that the property owners are constructing a religious
prayer hall in the above property without permit from the
Panchayat and the competent authorities. This Court as per Ext.P5
order, directed the Sub Inspector of Police, Pookkottumpadam
Police Station to ensure that no religious practices are carried out
in the subject property if the building is constructed without
permission from the appropriate authorities as provided in proviso
to Rule 7(8) of the Kerala Panchayat Building Rules, 2011. The
permit given to the erstwhile owners of the property was to
construct a commercial building. The building was constructed
based on the building permit issued for the commercial purpose.
Subsequently, when there was reluctance from the Panchayat to
issue occupancy certificate because of the pendency of WP(C)
No.18986/2017, the erstwhile owners of the property approached
this Court by filing WP(C) No.39075 of 2017. WP(C) Nos.18986 of
2017 and 39075 of 2017 came up for consideration before this
Court together. WP(C) No.18986 of 2017 was dismissed as
infructuous and WP(C) No.39075 of 2017 was disposed of as
evident by Ext.P6 by directing the Secretary of the Panchayat to
consider the application for occupancy certificate and building
number after hearing the erstwhile owners of the building and the
6th respondent herein. This Court made it clear that the Secretary
shall ascertain the proposed use for which the petitioner in that
case intend to put the building before issuing occupancy certificate
to the petitioner. Accordingly, the Secretary of the Panchayat
heard the parties and an undertaking was obtained from the
erstwhile owners of the building that they will use the building only
for the purpose stated in the permit. Ext.P7 is the affidavit dated
07.03.2018 sworn by the erstwhile owners of the building.
Accordingly, occupancy certificate was issued by the Panchayat
treating the building in 'F' category. Property tax was also
received. Thereafter, the property was given to the Society by the
erstwhile owners as per Ext.P3 Wakf deed. After getting the
building, the petitioner herein submitted Ext.P9 request dated
23.06.2018 for permitting to use the building as a prayer hall. It
is stated by the petitioner Society that they intend to use the
commercial building as a prayer hall for offering five times prayers
by the members of the Muslim community since there is no
mosque in Thottekkad locality. The Society submitted application
for change in the occupancy of the building from category 'F' to 'D'
for using the building as a Muslim place of worship. Ext.P10 is the
application for change of occupancy submitted before the
Panchayat dated 21.07.2018. The Secretary of the Panchayat
forwarded the application to the District Collector for his approval
as provided in the Kerala Panchayat Building Rules 2011. Ext.P11
is the letter forwarded by the 4 th respondent to the 1st respondent.
When there was delay in considering Ext.P10 application and
Ext.P11 recommendation for consideration by the District
Collector, the petitioner approached this Court and this Court, as
per Ext.P12 judgment, directed the District Collector to take
appropriate decision after hearing all the parties. Consequently,
the District Collector considered the matter in detail and dismissed
the application as evident by Ext.P13. While considering the issue,
the District Collector also considered Ext.P14 Police Report also.
Aggrieved by Ext.P13, this writ petition is filed.
3. Heard Adv.P.Samsudin for the petitioner and Adv.Deepa
Narayanan, Senior Government Pleader for the official
respondents. I also heard the counsel appearing for the 3 rd and 4th
respondent Panchayat. Adv.A.K.Haridas appeared for the 6 th
respondent, the contesting respondent.
4. The counsel for the petitioner submitted that alteration
and conversion are defined in the Kerala Panchayat Building Rules,
2019 (Hereinafter mentioned as the Rules 2019). The counsel
takes me through Rule 2(1)(f) and 2(1)(x) of the Rules 2019 and
submitted that conversion and alteration is possible as per the
Rules. The counsel also takes me through Rule 4(3) and Rule 5(4)
of the Rules, 2019 and submitted that the Secretary of the
Panchayat can change the occupancy of an existing building from
one group to another after getting permission from the competent
authority. The counsel for the petitioner submitted that Ext.P13
order passed by the District Collector is unsustainable. According
to the petitioner, the Muslim community is supposed to offer 'five
times prayer' every day. Therefore, a Mosque/prayer hall is
necessary within the vicinity of the members of the Muslim
community. The counsel also relied on the versus of the 'Holy
QUR-AN' to strengthen his contention about the importance of
Mosques. Further, counsel also relied on the relevant portion of
the "Hadees" of prophet which is compiled by Imam Nawawi by
producing a malayalam version of the same by Mr.Abdulla Nadvi.
The counsel relied on Chapter 191 of the above book to show the
importance of 'five time prayers' by members of the Muslim
community. The counsel also disputed the averments in Ext.P14
Intelligence Report of the District Police Chief.
5. When this writ petition came up for consideration, this
Court directed the District Collector to file a statement about the
averments in the writ petition. Consequently a detailed statement
was filed by the 1st respondent - District Collector. The 1 st
respondent submitted that the building of the petitioner was
originally constructed for commercial purpose. But when the inner
area of the building was inspected, it was found that it was
arranged more for religious purpose than for commercial purpose.
The District Collector also stated that as per the report of the Sub
Collector, about 36 Mosques are situated within the vicinity of the
petitioner's commercial building.
6. The counsel appearing for the respondents 3 and 4
submitted that a counter affidavit is filed by the 4 th respondent. In
the counter affidavit, Ext.R4(a) was produced to show that 36
Mosques are situated within 5 kilometers radius from the
petitioner's commercial building as per the Sanchaya Assessment
Software.
7. The counsel appearing for the 6th respondent submit
that, the intention of the petitioner and the erstwhile owner of the
building was to construct a Mosque and that is clear from the
report of the District Collector to the effect that the inner side of
the building is arranged as if it is a religious place. The counsel
submitted that the 6th respondent filed a writ petition against the
erstwhile owners when the building was being constructed by
them apprehending that, it will be used as a religious place. The
Panchayat granted occupancy certificate on an assurance that the
building will be used only for commercial purpose. The counsel
also submitted that the erstwhile owners filed a counter affidavit
before this Court in W.P.(C)No.18986/2017 in which it is stated
that "the building constructed in the private property of these
respondents are not for Mosque or other religious purposes." The
counsel submitted that the affidavit was filed on 28.11.2017 in the
above writ petition and thereafter they transferred the property to
the petitioner and immediately the petitioner submitted the
application for using the building as a prayer hall. The ulterior
motive of the petitioner and the erstwhile owners is clear from the
above conduct is the contention of the 6 th respondent. The
counsel submitted that, there are a lot of mosques situated within
the short distance from the building of the petitioner and
establishment of another mosque in this area will create
communal disharmony among the people. The counsel also
submitted that, it is an area where Hindus and Christians are
residing in majority, when compared to the Muslim community.
Therefore, it is submitted that, there is nothing to interfere with
Ext.P13 order passed by the 1st respondent.
8. This Court considered the contentions of the petitioner
and the respondents. The first point to be decided is whether a
conversion or alteration of the occupancy of an existing building
from one group to another group is possible. Rule 25 of the Kerala
Panchayat Building Rules, 2019 deals with the occupancy of
buildings. The buildings are classified according to their use or
character of the occupancy as Group A1, Group A2, Group B to
Group F, Group G1, Group G2 and Group H to Group J. Group D
deals with assembly. The Assembly building shall include any
building or part of a building exceeding 200 sq. metres of built-up
area where people congregate or gather for amusement,
recreation, social, religious, patriotic, political, civil, travel and
similar purposes such as theatres, motion picture houses or
cinemas, assembly halls for educational, dramatic or theatrical
presentations etc. Rule 2 (j) of the Rules, 2019 defines assembly
building. Rule 2(1)(f) deals with alteration and Rule 2(1)(x) deals
with conversion. Conversion means the change from one
occupancy to another occupancy or any change in building
structure or part thereof resulting in a change of space and use
requiring additional occupancy certificate. Rule 4(3) says that, no
person shall change the occupancy of an existing building from
one group to another, without first obtaining the permit from the
Secretary. Rule 5(4) says that, Panchayat is the authority for
issuing permit for buildings/places for religious purpose or
worship. From a combined reading of the above Rule, it is clear
that, an occupancy of an existing building from one group to
another is possible only after getting permission from the Secretary
of the Panchayat. Therefore, there is no prohibition in obtaining change
of occupancy of an existing building from one group to another.
9. The next point to be decided is whether any interference
with Ext.P13 order, passed by the District Collector, is required.
The Government of Kerala framed The Manual of guidelines to
prevent and control communal disturbance and to promote
communal harmony - 2005 as per G.O.(P) No.217/05/Home dated
25.07.2005 (In short Manual of Guidelines). As per Clause 23 of
the above Manual of Guidelines, any construction of religious place
is to be made only with the prior approval from the District
Authorities. Clause 23 and 23 (a) (i) were amended as per G.O.(P)
No.19/2021/Home dated 14.02.2021. As per the amended
provisions, instead of the District Authorities, the Local Self
Government authority has to grant approval for the construction of
religious place. Admittedly, in this case, the application
submitted by the petitioner to the District Collector and to the
Panchayat was before the amendment of Clause 23 and 23(a)(i) of
the Manual of Guidelines. Therefore, the District Collector
considered this application as per the unamended Manual of
Guidelines as per G.O.(P) No.217/05/Home dated 25.07.2005
based on the date of application. Therefore the unamended
Manual of Guideline is applicable in this case. It will be better to
extract the unamended Clauses 23 and 23(a)(i) of the above
Manual hereunder:
"23. Any construction of religious place should be made
only with prior approval of the District Authorities and at the
earmarked place. Cases of construction of unauthorised religious
places should be dealt with severely under, existing laws.
Negligence on the part of the District Administration in
implementing this direction should be seriously viewed and the
guilty dealt with.
23. (a) (i) Renovation of existing places of worship can be
undertaken after informing the matter to the District
Administration. However, any addition or expansion to the
existing structure should be done only with the previous
permission and concurrence of the District Administration. This
addition or expansion should not in any way cause any
inconvenience to the public, should not obstruct traffic, should
not be an impediment to the future expansion of roads and other
public amenities. Any addition or expansion can be undertaken
only with observing the building rules and with the prior
permission of Town Planning Department or Local Self
Government, as the case may be."
10. A reading of the above Clauses will show that the
permission from the District Authorities are necessary only for the
construction of religious place and renovation of an existing place
of worship. Here is a case where the petitioner wants to change
the occupancy. A strict reading of Clause 23 and 23(a)(i) of the
Manual of Guidelines will show that, even for a change of
occupancy, the permission from district authorities (now after the
amendment, from the Local Self Government Authorities) is
necessary. If such an interpretation is not given, anybody can
construct a building in one category and thereafter change the
occupancy to Group D for religious purpose without the approval
from the District Authorities or from the Local Self Government
Authorities. Therefore, it is declared that, even for a change of
occupancy of a building to a religious place, the Manual of
Guidelines is applicable and the approval from the competent
authority as per the Manual of Guidelines is necessary.
11. This Court perused Ext.P13 order passed by the District
Collector. The District Collector considered the matter in detail.
The District Collector observed that the petitioner submitted an
application before the Grama Panchayat for changing the
ownership of the property on an undertaking that, it will be used
only for commercial purpose. It is also stated that the
Perinthalmanna Sub Collector reported that there are about 36
Muslim prayer places within 5 kilometer radius from the
petitioner's commercial building. It is also stated that, there are
about 3990 Muslim families, 1164 Christian families and 3498
Hindu families residing within the vicinity of the petitioners
commercial building. The District Collector also considered the fact
that the number of Hindu and Christian families residing in this
area is more than the Muslim families residing and therefore, if a
Muslim prayer hall is approved after changing the occupancy from
commercial to religious purpose, there will be communal
disharmony. The report of the District Police Chief was also
considered. The District Collector also relied on the report of the
Additional Director General of Police (Intelligence) dated
18.09.2020 in which it is stated that, if the buildings which are
constructed for commercial purpose is allowed for religious
purpose, there will be communal disharmony between religions.
The District Collector also found that, the owners of the property,
knew well that, if an application is filed for constructing a religious
prayer hall, the same will be rejected, thus a building permit
application was filed for commercial purpose with an intention to
change it subsequently. Considering all these facts, Ext.P13 order
was passed by the District Collector dismissing the request for
conversion. After going through the order passed by the District
Collector which considered the report of the Sub Collector, District
Police Chief and the Additional Director General of Police
(Intelligence), this Court is of the considered opinion that, there is
nothing to interfere with the same. The jurisdiction of this Court to
interdict with an oder passed by the competent authority as per
the Manual of Guidelines is very limited, unless there are patent
illegalities. The authorities as per the Manual of Guidelines are
fact finding authority. They considered the facts based on the
Police report, Intelligence report and other ground realities after
inspecting the properties. Under such circumstances, this Court
need not interfere with such orders by invoking the powers under
Article 226 of the Constitution of India, unless there are patent
illegalities and violation of fundamental rights of the citizen.
12. Moreover, the conduct of the petitioner in submitting the
application for the change of occupancy is also doubtful. The
following events and the date of its occurrence will show that the
intention of the parties are not to construct a commercial building,
but to construct a religious place.
1 The erstwhile owners of the property namely 05/04/17
Mr.Mohammed s/o Kunjammad and Mr.Abdul
Razaq obtained Ext.P4 building permit for
commercial purpose
2 The 6th respondent filed writ petition as 08/06/17
W.P.(C.) No. 18986/2017 apprehending that
the building is going to be constructed for
religious purpose and this Court passed Ext.P5
order
3 The writ petition filed by the erstwhile owners 09/01/18
for getting the occupancy certificate as a
commercial building (W.P.(C.) No.
39075/2017) was disposed directing the
Panchayat to consider the application.
4 The erstwhile owners of the property filed an 07/03/18
affidavit before the Panchayat to the effect
that the building is constructed for commercial
purpose and as long as the building is in their
possession it will be used only for commercial
purpose
5 The occupancy certificate was issued by the 12/03/18
Panchayat as 'F' category and building
No.2/256 was allotted and property tax was
received treating the building as a commercial
building.
6 The erstwhile owners transferred the property 28/04/18
to the petitioner-Society as per Ext.P3
7 The petitioner submitted request to the District 23/06/18
Collector for change of category (Ext P9).
8 The petitioner submitted an application for 21/07/18
change of occupancy before the Panchayat(Ext
P10)
13. Therefore, it is clear that after filing the affidavit before
the Panchayat on 7.3.2018 by the erstwhile owners that the
building will be used only for commercial purpose, the Panchayat
issued the occupancy certificate as directed by this Court in Ext.P6
judgment and property tax was also accepted. After filing the
affidavit before the Panchayat on 7.3.2018, the erstwhile owners
transferred the property to the petitioner-society on 28.4.2018.
That means even before completing two months after the affidavit
was filed by the erstwhile owners before the Panchayat, the
property was transferred and an application was filed by the
petitioner-Society to change the occupancy from commercial to
religious purpose. The conduct of the petitioner is suspicious.
Under such circumstances, this Court has to presume that the
apprehension of the 6th respondent that it was not to construct a
building for commercial purpose, but for religious purpose is true.
Since the erstwhile owners are not parties in this case, I do not
want to make any further observations with respect to their
intention.
14. Moreover in Ext.P13, it is clearly stated that there are
about 36 Muslim prayer halls within 5 kms vicinity from the building of
the petitioner. If that is the case, why another prayer hall to the Muslim
community in this area is a question to be decided. The counsel for
the petitioner submitted that as per the
religious beliefs of Muslim community, five times prayer a day is
mandatory. The importance of Mosque and the importance of the
prayers in the Mosque itself is elaborated by the counsel by relying
quranic verses. The counsel relied Juz 10 Surah 18 of the Holy
Qur-an. It will be beneficial to quote the English translation of the
above verse which was made available by the learned counsel,
which is a book printed and completed at: King Fahd Holy Qu-ran
Printing Complex, AL-Madinah Al-Munawarah under The Auspices
of The Ministry of Hajj and Endowments, The Kingdom of Saudi
Arabia. The english verses relied by the petitioner from the above
book are extracted hereunder :
18. The mosques of Allah
Shall be visited and maintained
By such as believe in Allah
And the Last Day, establish
Regular prayers, and
Pay Zakat, and fear
None (at all) except Allah
It is they who are expected
To be on true guidance."
15. The counsel also relied Juz 1 Surah 114. The same is
also extracted hereunder :
"114. And who is more unjust
Than he who forbids
That in places for the worship
Of Allah, His name should be
Celebrated?- whose zeal
Is (in fact) to ruin them?
It was not fitting that such
Should themselves enter them
Except in fear. For them
There is nothing but disgrace
In this world, and in the world
To come, an exceeding torment"
16. The above verses of the Holy Qur-an, clearly highlights
the importance of Mosque to the Muslim community. But, it is not
stated in the above verses of the Holy Qur-an that Mosque is
necessary in every nook and corner. The counsel also relied on the
compilation of Imam Nawawi which is know as "Riyadussaliheen".
The counsel made available the book which translate the above
into Malayalam by Abdulla Nadwi. Chapter 191 of the above book
says about the importance of praying together. It will be better to
extract Chapter 191, Clauses 1064 and 1065.
"1064. ഇബ്നു ഉമര്(റ)ല് നിന്ന് പ്രവാചകന് (സ) പറഞ്ഞു: ഒറ്റക്ക്
നമസ്കരിക്കുന്നതിനേക്കാള് സംഘടിത നമസ്കാരത്തിന് ഇരുപത്തേഴ്
മടങ്ങ് ശ്രേഷ്ഠതയുണ്ട്. (ബുഖാരി 645) (മുസ്ലിം 650).
1065. അബൂഹുറൈറ:(റ)ല് നിന്ന് : പ്രവാചകന്(സ) പറഞ്ഞു:
ഒരാള് സ്വന്തം ഭവനത്തിലും അങ്ങാടിയിലും വെച്ച് ഒറ്റക്ക്
നമസ്കരിക്കുന്നതിനേക്കാള് സംഘടിതമായുള്ള നമസ്കാരത്തിന്
ഇരുപത്തിയഞ്ച് ഇരട്ടി പ്രതിഫലമുണ്ട്. കാരണം, അയാള് നല്ല പോലെ
വുളുഅ് ചെയ്ത് പള്ളിയിലേക്ക് പുറപ്പെടുന്നു. ഇങ്ങനെ നമസ്കാരം
മാത്രം ഉദ്ദേശിച്ച് അയാള് പുറപ്പെടുമ്പോള് അയാളുടെ ഓരോ
ചവിട്ടടിമൂലവും അയാള്ക്ക് ഓരോ പദവി ഉയര്ത്തപ്പെടുകയും ഓരോ
പാപങ്ങള് മായ്ക്കപ്പെടുകയും ചെയ്യുന്നു. ഇനി അയാള് നമസ്കരിച്ചു
കഴിഞ്ഞാലോ, ശുദ്ധിയോടു കൂടി നമസ്കരിച്ച സ്ഥലത്ത് തന്നെ
ഇരിക്കുമ്പോഴെല്ലാം മലക്കുകള് അയാള്ക്ക് വേണ്ടി പ്രാര്ത്ഥിച്ചു
കൊണ്ടിരിക്കുകയും ചെയ്യും. അവര് പ്രാര്ത്ഥിക്കും. അല്ലാഹുവേ!
അദ്ദേഹത്തെ അനുഗ്രഹിക്കുകയും അദ്ദേഹത്തോട് കരുണ കാണിക്കുകയും
ചെയ്യേണമേ!. നമസ്കാരം പ്രതീക്ഷിച്ചു കൊണ്ടിരിക്കുന്ന സമയമത്രയും
അദ്ദേഹം നമസ്കാരത്തില് തന്നെയാണ്. (ബുഖാരി: 647) (മുസ്ലിം: 649)"
17. It is stated in Clause 1064 about the importance of
praying together instead of praying alone. Prayers together is
more graceful. The reason for the same is explained in Clause
1065. It is true that the praying alone and praying together is
different and if prayer is done together, that is more graceful
than praying alone. But in Clause 1065, it is stated that while a
devotee is going to the Mosque for prayer, every step towards the
Mosque will increase his status and will vanish his sins one by one.
Therefore, every steps towards mosque is important as per the
above verse. It is not stated in the "Hadees" or in the Holy Qur-an
that Mosque is to be situated adjacent to the house of every
Muslim community member. Distance is not the criteria, but
reaching the Mosque is important. In the instant case 36 Mosques
are available within the vicinity from the commercial building of
the petitioner. In such circumstances, there is no need of another
Mosque in that vicinity because the devotees of Muslim community
can go to other nearby Mosques. The petitioner has no case that
there is difficulty in going to the other Mosque other than the
distance. In this modern society 5 kms is not a distance at all.
Almost all citizens have vehicles, including car, Motor Bikes and
atleast a Bicycles. Moreover, in addition to this, public transport
facilities and private transportation facilities are available from
every nook and corner of the State. In such circumstances, the
distance is not a criteria for allowing religious places. It is true that
Article 26(a) of the Constitution of India states that subject to the
public order, morality and health, every religious denomination or
any section thereof shall have the right to establish and maintain
institutions for religious and charitable purposes. That does not
mean that they can construct religious places in every nook and
corner of the country. Kerala is a very small State. A study which
is available on the internet about the religious places based on the
Census 2011 is alarming. Kerala has 10 times higher number of
religious structures than the total number of Villages in Kerala.
According to 2011 Census, there are 1018 Villages in Kerala along
with 87 Municipalities and 6 Municipal Corporations sharing
1,01,140 places of worship along with 29,565 hospitals. The
number of places of worship in Kerala is almost 3.5 times higher
than the number of hospitals in Kerala. Therefore, if further
religious places and religious prayer halls are allowed
in Kerala without any guidelines, there will be no place for the
citizens to reside.
18. There are devotees in Hindu, Christians, Muslim etc. in
our land. Kerala is a small State in which all these community
members are staying with happiness and with communal
harmony. Kerala is exhausted with religious institutions and
prayer halls. There are sufficient number of religious places and
prayer halls to all the communities in the State even as per the
2011 Census Report. As far as the present case is concerned,
there are about 36 mosques situated within 5 kilometre radius
from the existing commercial building of the petitioner. Then why
another prayer hall for the petitioner is a million dollar question.
The Government and the local bodies should be vigilant while
granting permission for religious places and prayer halls in future.
It should be done strictly in accordance to the Manual of
Guidelines. Moreover, the change of occupancy of existing building
from one category to the category of religious places shall not
be allowed in normal cases. Rejection of approval should be the
rule and the approval should be only in rarest of rare case. If there
is any inevitable situation, the competent authorities as per the
Manual of Guidelines, before taking decisions, should go deep into
such requests after getting intelligence report and police report
about the ground realities. As far the change of occupancy to
religious purpose is concerned, normally it should not be approved
because the purpose of the construction is for the category in
which the permit is issued. The construction of a commercial
building and construction of a religious place are entirely different.
In a State like Kerala, the category change from one category to
religious place is not necessary unless there are sufficient reasons
for the same. If any building is used for religious purpose when
the building is constructed for some other purpose, stringent
action should be taken by the Police authorities and the State.
Normally the category change of the building from one category to
a religious category is to be deprecated. If every
devotee of Hindu, Christian, Muslim, Jews, Parsis, etc. start to
construct religious places and prayer halls near their residence,
the State will face serious consequence including communal
disharmony. In this case the intelligence report and the police
report says that if the present conversion of the commercial
building to a religious prayer hall is allowed, there is chance for
communal disharmony. It is a sensitive issue. Therefore the
authorities should not permit such category change and if any
such inevitable situation arise, a detailed study considering the
facts and circumstances of that particular case is necessary. If
there are other similar religious place / prayer hall available
nearby, that is a sufficient ground to reject a request for change of
category to the religious place and even to construct a new
religious place / prayer hall. Each case has to be considered based
on its own merit, but with great caution. This Court, while
considering the expansion of National Highway, considered the
question of even demolishing mosque, temple, etc. for
development in Balakrishna Pillai and Another v. Union of
India and Others [2021 (4) KHC 282]. Relevant portion of the
above case is extracted hereunder:
"20. Our Country is now launched upon an ambitious program
of all around economic advancement to make our economy
competitive in the world market. To improve the economy,
infrastructure available in the country is also to be developed.
National Highways are necessary for free transportation of
vehicles, goods etc. According to me, one of the need of the
Country is National Highway with sufficient width, with straight
roads, so that citizens, businessmen, industrialists and people
from all walks of life can use the same. In such a situation, if
this Court starts to interfere in acquisition proceedings of
National Highway on the basis that there is a curve or there is
a Mosque or there is a Temple or there is a School, the
acquisition proceedings could not be completed. Unless there
are mala fides or unless there is patent illegality, the
acquisition proceedings cannot be interfered with by the writ
court, invoking the powers under Article 226 of the Constitution
of India. The vehement argument of the petitioners is that, if
the proposed alignment is accepted, that will destroy two
mosques and two temples. Here I remember the famous film
song of the veteran poet and the pride of Keralite
Sri.Sreekumaran Thambi. A portion of the song is extracted
hereunder:
"മണ്ണിലും വിണ്ണിലും തൂണിലും തുരുമ്പിലും
ദൈവമിരിക്കുന്നു അവന്
കരുണമയനായ് കാവല് വിളക്കായ് കരളിലിരിക്കുന്നു"
I am not a person to translate these lines. But for this
judgment, English translation is almost like this. "The God
almighty is omnipresent. He exist on the earth, in the sky, in
pillars, and in the rust. He is the embodiment of kindness and
dwells in the hearts of all, as a light of kindness." For the
development of the National Highway, if the religious
institutions are affected, God will forgive us. God will protect
the petitioners, the authorities, and also the author of this
judgment. God will be with us. "(underline supplied)
19. God is there everywhere. If the Muslim community want
to conduct their 'prayers' in the mosque itself, they can go to the
nearest mosque instead of constructing a new prayer hall near to
their residence. As I observed earlier, in the Modern Era, almost all
the citizens have vehicles. Cycles are also available for
transportation. Public transportation facility and private
transportation facility are also available. Moreover, every step
towards the mosque by a Muslim will only increase their status and
will vanish their sins. Therefore the members of the Muslim
community can walk to the nearest mosque so that they can
achieve higher status and vanish the sins committed by them. For
conducting 'prayers' to the Muslim community members, prayer
hall is not necessary within 10 metres or 100 meters from their
residence. They can travel to the mosque for prayers if they are
real devotees and the followers of prophet. Because of the
peculiar geographical situation of Kerala, it is known as 'God's own
country'. But we are exhausted with religious places and prayer
halls and we are not in a position to allow any new religious places
and prayer halls except in the rarest of rare cases. While
confirming Ext.P13 order passed by the District Collector in this
case, I think appropriate directions is to be issued to the
Government and Police authorities for taking appropriate steps to
see that the citizens are living with happiness alone without any
communal disharmony. Let the citizens love each other and follow
their religious practices according to their religious beliefs. They
can do it from their house and if their religion insists that, it should
be done together in a prayer hall; they can travel to the nearest
mosque instead of constructing another mosque or prayer hall in
their neighbourhood. This reminds me of the famous lines of the
Malayalam song written by the great poet Late Vayalar
Ramavarma. A portion of the song and the sum and substance of
the meaning of the same in English is extracted hereunder:
"മനുഷ്യന് മതങ്ങളെ സൃഷ്ടിച്ചു
മതങ്ങള് ദൈവങ്ങളെ സൃഷ്ടിച്ചു
മനുഷ്യനും മതങ്ങളും ദൈവങ്ങളും കൂടി
മണ്ണു പങ്കുവച്ചു - മനസ്സു പങ്കുവച്ചു
മനുഷ്യന് മതങ്ങളെ സൃഷ്ടിച്ചു
ഹിന്ദുവായി മുസല്മാനായി
ക്രിസ്ത്യാനിയായി
നമ്മളെ കണ്ടാലറിയാതായി
ലോകം ഭ്രാന്താലയമായി
..............................."
"Man created religions
Religions created God
Man, religions and God together divided
the earth and divided the heart.
We became Hindus, Muslims, Christians
When we meet, we stopped recognizing each other
The earth became a madhouse
- - - - - - - - - - - - - - - - - - - - - - - - -"
20. If the poet is alive today, I am sure that the poet will
rewrite the second line of the above song as... "religion is the
creator of religious places", instead of God. As I observed earlier,
certain directions are necessary invoking the inherent powers of
this court under Article 226 of the Constitution of India to the
State Government and to the Police authorities for taking
appropriate steps to ensure that there is no communal riot or
communal disharmony in the State of Kerala because of the
construction of prayer halls and category change of buildings to
religious prayer halls.
Therefore, this writ petition is disposed of with following
findings and directions:
1. Ext.P13 is confirmed and the prayers in the writ
petition are rejected.
2. The Chief Secretary of State of Kerala and the State
Police Chief shall issue necessary orders / circulars
directing all the officer concerned to see that there
is no illegal functioning of any religious places and
prayer halls without obtaining permission from the
competent authorities as per the Manual of
Guidelines and if any such religious place or prayer
hall is functioning without necessary permission, to
take necessary steps to close down the same
forthwith.
3. The Chief Secretary of the State of Kerala will issue
necessary orders / circulars directing the competent
authority as per the Manual of Guidelines to
consider each application to start religious places
and prayer halls strictly and the approval can be
granted only in appropriate cases. In the
order/circular, it should be clearly mentioned that
the distance to the nearest similar religious place /
prayer hall is one of the criteria while considering
the application for religious places and prayer halls.
4. The Chief Secretary of the State of Kerala will issue
a separate circular / order prohibiting change of
category of a building to a religious place / prayer
hall except in inevitable circumstances and in the
rarest of rare case, and that also only after getting
report from the Police and Intelligence ascertaining
the ground realities of that particular place.
5. The registry will forward a copy of this judgment to
the Chief secretary of the state of Kerala and the
State Police Chief for issuing appropriate
consequential orders.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
DM
SKS
JV
APPENDIX OF WP(C) 792/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE REGISTRATION CERTIFICATE
DATED 4.4.2018.
Exhibit P2 TRUE COPY OF THE BYE LAW OF THE SOCIETY.
Exhibit P3 TRUE COPY OF THE DEED NO.1718/1/2018 OF
NILAMBUR SUB REGISTRAR OFFICE.
Exhibit P4 TRUE COPY OF THE BUILDING PERMIT.
Exhibit P5 TRUE COPY OF THE INTERIM ORDER DATED
8.6.2017 IN WP(C) NO.18986/2017.
Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 9.1.2018 IN
WP(C) NO.39075/2017.
Exhibit P7 TRUE COPY OF THE AFFIDAVIT DATED 7.3.2018
SWORN IN BY THE ERSTWHILE OWNERS OF THE
BUILDING.
Exhibit P8 TRUE COPY OF THE RECEIPT FOR PROPERTY TAX
DATED 12.3.2018.
Exhibit P9 TRUE COPY OF THE REQUEST DATED 23.6.2018
SUBMITTED BEFORE THE DISTRICT COLLECTOR.
Exhibit P10 TRUE COPY OF THE APPLICATION FOR CHANGE OF
OCCUPANCY SUBMITTED BEFORE THE PANCHAYAT ON
21.7.2018 TOGETHER WITH THE CERTIFICATE OF
THE REGISTERED ARCHITECT.
Exhibit P11 TRUE COPY OF THE LETTER FORWARDED BY THE 4TH
RESPONDENT TO THE 1ST RESPONDENT.
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 17.9.2020 IN
WP(C) NO.31065/2018.
Exhibit P13 TRUE COPY OF THE ORDER DATED 10.8.2021
PASSED BY THE DISTRICT COLLECTOR.
Exhibit P14 TRUE COPY OF THE INTELLIGENCE REPORT OF THE
DISTRICT POLICE CHIEF DATED 4.12.2020
OBTAINED BY THE PETITIONER UNDER RTI ACT.
RESPONDENT EXHIBITS
Exhibit R4(a) TRUE COPY OF THE LIST OF MOSQUES IN THE 5-KM
RADIUS OF THE PETITIONER'S COMMERCIAL
BUILDING AS PER THE SANCHAYA ASSESSMENT
SOFTWARE.
TRUE COPY
P.A.TO JUDGE
