Raveendran P.T vs The State Of Kerala
2023 Latest Caselaw 5746 Ker

                                                          C.R.

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
     WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                       WP(C) NO. 15433 OF 2022
PETITIONER:

          RAVEENDRAN P.T
          AGED 59 YEARS
          S/O. THANKAPPAN, KARIMAKKAD, PALLIPPARAMBILHOUSE,
          PALANCHERRY MUGHAL, EDATHALA, POOKKATTUPADY, PIN - 683
          561.

          BY ADVS.
          SHERRY J. THOMAS
          JOEMON ANTONY



RESPONDENTS:

    1     THE STATE OF KERALA
          REPRESENTED BY HOME DEPARTMENT, GROUND FLOOR, MAIN
          BLOCK, SECRETARIAT, THIRUVANANTHAPURAM, PIN -- 695 001.

    2     THE DISTRICT PANCHAYAT
          COLLECTORATE, 1ST FLOOR, CIVIL STATION, EACHAMUKKU,
          KUNNUMPURAM P.O., KAKKANADU, ERNAKULAM - 582 030.

    3     THE REVENUE DIVISIONAL OFFICER
          REVENUE DIVISIONAL OFFICE, 1ST FLOOR, K.B. JACOB ROAD,
          FORTKOCHI, ERNAKULAM - 682 001.

    4     THE SUPERINTENDENT OF POLICE (RURAL)
          ALUVA, POWER HOUSE JUNCTION, SUB JAIL ROAD, PERIYAR
          NAGAR, ALUVA, KERALA - 683 101.

    5     THE STATION HOUSE OFFICER
          EDATHALA POLICE STATION, NALAM MILE, KULAKKAD, KERALA -
          683 112.

    6     THE EDATHALA GRAMA PANCHAYAT
          EDATHALA NORTH P.O. ALUVA, PUKKATTUPADY ROAD, EDATHALA,
          ALUVA- 683 563, REPRESENTED BY ITS SECRETARY
 W.P.(C). 15433/2022
                                    2



      7       THE SECRETARY
              EDATHALA GRAMA PANCHAYAT, EDATHALA NORTH P.O, ALUVA -
              PUKKATTUPADY ROAD, ALUVA - 683 563.

      8       ANAND P,
              AGED 42 YEARS
              S/O. PADMAKUMAR, HOUSE NO. IX/657/G, MULLACKAI HOUSE,
              PALANCHERRY MUGHAL, EDATHALA P.O., POOKKATTUPADY, PIN -
              683 561.

              BY ADVS.
              SHRI.G.SANTHOSH KUMAR (P), SC, EDATHALA GRAMA
              PANCHAYATH
              R.KRISHNA RAJ
              E.S.SONI
              KUMARI SANGEETHA S.NAIR
              RESMI A.



OTHER PRESENT:

              GP RAJEEV JYOTHISH GEORGE

              ADV. G. SANTHOSH KUMAR FOR R6 & R7




    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION   ON  12.01.2023, THE COURT ON 24.05.2023
DELIVERED THE FOLLOWING:
 W.P.(C). 15433/2022
                                            3

                                                                         C.R.
                                    JUDGMENT

Dated this the 24th day of May, 2023

Petitioner is a resident of Ward No.9 in Edathala

Panchayat. He has filed the writ petition aggrieved by the

inaction of the Panchayat, Police and Revenue authorities to

stop the illegal slaughter of birds and animals in the guise

of ritualistic sacrifice by the 8 th respondent. The

objectionable activities are carried out in a structure,

resembling a temple, constructed by the 8 th respondent on

the second floor of his residential building. The reliefs

sought in this writ petition are as follows;

i) Call for the records pertaining to the Ext P4, P7, P8 and

P9 petitions and action taken thereon.

ii) Issue a writ of mandamus, any other writ, appropriate

order or direction, directing the 6th Respondent Panchayat

to initiate steps to remove the illegal structure wherein

the temple is situated in building No. 9/657/G of Edathala

Grama Panchayat.

iii) Issue a writ of mandamus, any other writ, appropriate

order or direction, directing the 2 nd and 3rd Respondents

to initiate proceedings on Ext P8 in accordance with the W.P.(C). 15433/2022

Manual of Guidelines to Prevent and Control Disturbances

and to Promote Communal Harmony 2005 and to close

down the illegal temple in building No. 9/657/G of

Edathala Grama Panchayat.

iv) Issue a writ of mandamus, any other writ,

appropriate order or direction, directing the 4 th and 5th

Respondents to consider Ext P7 and P 10 and initiate

action to prevent the illegal functioning of the temple in

building No. 9/657/G of Edm Grama Panchayat.

v) Issue a writ or appropriate order declaring that the 8 th

Respondent cannot function any temple in building No.

9/657/G of Edathala Grama Panchayat without complying

proceedings in connection with the Manual of Guidelines

to Prevent and Control Disturbances and to Promote

Communal harmony 2005.

vi) Provide cost of the proceedings.

2. Heard Adv. Sherry J. Thomas for the petitioner,

Adv. G. Santhosh Kumar for the Panchayat, Adv. R. Krishna

Raj for the 8th respondent and Government Pleader

Adv.Rajeev Jyothish George for the State and its officials.

3. Learned counsel for the petitioner submitted

that the 8th respondent has exhibited a board with

the name 'Sree Bhramarambika Vishnumayaswami W.P.(C). 15433/2022

Devasthanam' and is canvassing devotees through notices

and other modes of advertisement. The 8 th respondent is

conducting poojas and rituals in his building day-in and

day-out, accompanied by the ringing of bells, blowing of

the conch and the shrieks and cries of animals and birds.

The blood of the slaughtered animals is flown to the road

and carcasses strewn all over the place. Additionally

vehicles of persons visiting the place for conducting poojas

and rituals are parked indiscriminately. All these factors

have made life impossible for the petitioner and the other

residents of the area.

4. Ext. P1 series of photographs are referred to

prove that the Devasthanam is functioning on the second

floor of the 8th respondent's building. Ext.P2 notice

contains the so-called history of the temple, the powers of

the deities and details about the annual festival of 2022.

Ext.P3 photograph shows the blood and remnants flown

and strewn over the public road.

W.P.(C). 15433/2022

5. It is contended that places of worship accessible

to public can be constructed only with the prior approval

of the District Administration as mandated in Clause 23 of

the Manual of Guidelines to Prevent and Control

Disturbances and to Promote Communal Harmony, 2005

(the Manual of Guidelines). The construction is illegal also

for the reason that it was done without obtaining the

permission envisaged under the Kerala Panchayat Building

Rules. Slaughtering of animals is prohibited under the

Prevention of Cruelty to Animals Act, 1960. Further,

slaughtering, as part of ritualistic sacrifice, violates Section

3 of the Kerala Animals and Birds Sacrifices Prohibition Act,

1968. It is alleged that, in spite of being fully aware of the

violations and there being a possibility of law and order

situation, the police is not taking any action. Likewise, the

Panchayat, which is conferred with the duty of ensuring

public safety, convenience and health, is keeping silent,

despite the health hazard and nuisance caused by the

slaughtering of animals and unscientific disposal of blood

and carcasses. The revenue authorities have also miserably W.P.(C). 15433/2022

failed to stop the illegal functioning of the place of worship.

6. Learned Government Pleader submitted that a

mass complaint was received from the residents of

Palancherry Mugal in Edathala Grama Panchayat regarding

the illegal functioning of a temple in the 8th respondent's

building. On inquiry, it came to light that the temple is

functioning without obtaining approval from the Panchayat.

Although a meeting was convened by the Station House

Officer of Edathala Police Station to discuss the issue, the

8th respondent took an adamant stand that he has the

liberty to function the temple as part of his religious

practice. On the other hand, the complainants reiterated

that the activities of the temple are harmful to their

physical and mental health and warned that a mass

agitation will be started if the functioning of the temple is

not stopped. After discussion, the 8 th respondent was

directed to avoid causing nuisance to his neighbours and to

approach the authorities concerned for obtaining requisite

permission. Likewise the complainants were directed to

approach the Grama Panchayat and other statutory W.P.(C). 15433/2022

authorities to find a solution to their problem. As such,

further action in the matter is to be taken by the

Panchayat.

7. Learned Standing Counsel for the Panchayat

submitted that that 8th respondent has not been granted

permission for functioning a religious place by the

Panchayat or the District Administration. The Panchayat

conducted an inspection of the 8th respondent's building

and found that the second floor is covered with roofing

sheets. As no permission was obtained for such

construction/renovation, notice was issued to the 8 th

respondent, requiring him to produce copies of the

permissions, and remove the boards of the Devasthanam

erected on the building. The 8th respondent did not reply

to the notice or remove the board or the roofing sheets. As

per instruction received, the 8th respondent is still

conducting poojas and rituals at odd hours causing public

nuisance, which is a punishable offence under Section 290

of Indian Penal Code. According to the counsel, it is

difficult for the Panchayat to take action in the matter as W.P.(C). 15433/2022

Panchayat is not empowered to gather intelligence

information and take follow up action. Therefore, it is for

the police and the revenue authorities to address the

grievance of the local residents.

8. Learned counsel for the 8th respondent submitted

that the allegations in the writ petition are baseless and

motivated by personal animosity. The 8 th respondent has

dedicated a floor of his house for conducting poojas of

Bhramarambika and Vishnumaya, the deities worshipped

by his forefathers. The place where the poojas are

conducted is a Devasthanam and not a temple. The 8th

respondent's friends and family members alone are

attending the poojas conducted by him. As such, it is not a

place of public worship. The poojas are conducted following

the Shaktheyam ritualistic method using pancha makaram,

viz; liquor, fish, meat, mudra and midhunam. Out of this,

the first four are called pratyaksham and the fifth is

personal to the person conducting the ritual. The above

form of worship is an essential part of the 8th respondent's

religious belief and cannot be interfered with in view of the W.P.(C). 15433/2022

guarantee under Articles 25 and 26 of the Constitution of

India.

9. It is contended that the prohibition under

Prevention of Cruelty to Animals Act will not apply since,

killing of animals in the manner required by a religion or

community is not an offence under Section 28 of the Act.

The prohibition under Section 3 of the Kerala Animals and

Birds Sacrifices Prohibition Act, 1968 is also not attracted,

since the place and the precinct where birds and animals

are sacrificed is a Devasthanam and not a Temple. In

support of this contention, reference is made to the

definition of the terms 'precincts' and 'temple' at Sections

2(a) and (c) of the Act.

10. According to the counsel, the 8 th respondent is

not required to obtain permission from the District

Administration, as mandated in the Manual of Guidelines,

since he is conducting the religious activities inside his

pooja room. It is submitted that Ext.P2 notice was meant

to be circulated among friends and relatives and is not

issued for the purpose of canvassing devotees. W.P.(C). 15433/2022

11. India, with its centuries old history, culture and

religion, has brought in enactments to prevent and prohibit

objectionable ritualistic practices like Sati, human sacrifice

and child marriage. No doubt, Article 25 of the Constitution

grants all persons the right to freely profess, practice and

propagate religion. A careful reading of Article 25 shows

that the above mentioned freedom is subject to public

order, morality, health and the other provisions of Part III.

As such, the freedom and right under Article 25 are

subservient to the right to life and personal liberty

guaranteed under Article 21. Being so, the expression of

religious freedom by the conduct of poojas and rituals by

the petitioner cannot result in the deprivation of the right

to decent living guaranteed to the other residents.

12. The Apex Court in Sardar Syedna Taher

Saifuddin Saheb v. the State of Bombay [AIR 1962 SC

853] had occasion to consider the question whether the

practices that are an essential part of religious belief can be

interfered. The petitioner therein was the 51 st Dai-ul-

Mutlaq and head of the Dawoodi Bohra Community. He W.P.(C). 15433/2022

challenged the constitutionality of the Bombay Prevention

of Excommunication Act, 1949 on the ground that the

provisions of the Act infringe Articles 25 and 26 of the

Constitution, by interfering with his right to excommunicate

a member of the community. Even though the petition was

allowed by majority, the following observation assumes

relevance;

"There may be religious practices of sacrifice of human beings, or sacrifice of animals in a way deleterious to the well being of the community at large and in such event it is open to the State to intervene by legislation, to restrict or to regulate to the extent of completely stopping such deleterious practices."

13. The fine difference between a religious practice

and an essential and integral part of a practice of religion

was considered by the Constitution Bench in Dr. M. Ismail

Faruqui and Ors. v. Union of India and Ors. [(1994) 6

SCC 360]. Paragraph 78 of the judgment being contextually

relevant, is extracted hereunder;

"78. While offer of prayer or worship is a religious

practice, its offering at every location where such prayers can

be offered would not be an essential or integral part of such W.P.(C). 15433/2022

religious practice unless the place has a particular significance

for that religion so as to form an essential or integral part

thereof. Places of worship of any religion having particular

significance for that religion, to make it an essential or integral

part of the religion, stand on a different footing and have to be

treated differently and more reverentially."

Thereafter, in N. Adithayan v. Travancore Devaswom

Board [(2002) 8 SCC 106], while holding that Non-

Brahmins could be appointed as priests in particular

temples and appointment of only Brahmins as poojaris

cannot be said to be an essential part of religion, the Apex

Court highlighted the vision of the founding fathers of the

Constitution to liberate the society from blind and ritualistic

adherence to superstitions, sans reason or rational basis.

14. The following erudite opinion of Justice R.F.

Nariman in the famous Sabarimala Case throws more light

on the issue. (Indian Young Lawyers Association and

Ors v. State of Kerala and Ors. [(2019) 11 SCC 1]);

"176.6. It is only the essential part of religion, as

distinguished from secular activities, that is the subject-

matter of the fundamental right. Superstitious beliefs

which are extraneous, unnecessary accretions to religion W.P.(C). 15433/2022

cannot be considered as essential parts of religion.

Matters that are essential to religious faith and/or belief

are to be judged on evidence before a court of law by

what the community professing the religion itself has to

say as to the essentiality of such belief. One test that has

been evolved would be to remove the particular belief

stated to be an essential belief from the religion-would

the religion remain the same or would it be altered?

Equally, if different groups of a religious community speak

with different voices on the essentiality aspect presented

before the Court, the Court is then to decide as to

whether such matter is or is not essential. Religious

activities may also be mixed up with secular activities, in

which case the dominant nature of the activity test is to

be applied. The Court should take a common-sense view

and be actuated by considerations of practical necessity."

15. Going by the precedents and on a proper

understanding of the rights under Article 25 and the liberty

guaranteed under Article 21, the contention that, animal

sacrifice being an essential and integral part of the 8 th

respondent's religious belief and practice, cannot be

interfered with even if it causes nuisance to others, has to

be rejected. As opined by none other than Dr. B.R.

Ambedkar, true religious practice should be guided by W.P.(C). 15433/2022

reason, equality and humanistic values, rather than blind

adherence to traditions. All unhealthy, unscientific and

deleterious practices are to be prevented, even if it is done

in the name of religion.

16. In order to overcome the prohibition against

animal sacrifice in the Kerala Animals and Birds Sacrifices

Prohibition Act, 1968, the contention urged is that the

Devasthanam, where animals are sacrificed, is not a

temple. For this, reliance is placed on the definition of

'temple' in Section 2(c) of the Act which reads as under;

" "temple" means a place by whatever designation known,

used as a place of public religious worship, and dedicated

to, or for the benefit of, or used as of right by, the Hindu

community or any section thereof, as a place of public

religious worship."

Going by the definition, a place used for public religious

worship, by whatever designation known, will be a temple if

it is dedicated to or used by the Hindu community, or by

any section thereof. A perusal of Ext. P2 notice shows that

the 8th respondent himself has described the place where W.P.(C). 15433/2022

he is conducting poojas as a temple and had solicited

participation of devotees interested in obtaining the

blessings of the deities. Having issued a notice in the

nature of Ext. P2, the 8th respondent cannot contend that

the place of worship is not a temple and there is no public

participation. As such, the prohibition under Section 3 of

the Kerala Animals and Birds Sacrifices Prohibition Act

would apply and contravention would invite the penalty

prescribed under Section 6(1) of the Act.

17. The State Government has issued the Manual

of Guidelines in order to equip the District Administration to

deal with communal violence, to promote communal

harmony, ensure peaceful co-existence and bring about

unity in diversity. Clause 23 of the Guidelines reads as

under;

"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 thi s direction W.P.(C). 15433/2022

should be seriously viewed and the guilty dealt with."

The clause makes it evident that no religious place can be

constructed without prior approval of the District

Authorities and cases of construction of unauthorised

religious places are to be dealt with severely. The

allegation is that, in spite of being informed about the

construction of a religious place without prior permission,

the District Authorities and the police are refusing to take

action. It is disconcerting to note the weak-kneed and

jittery approach of the police and revenue authorities, when

illegalities committed under the garb of religion are

brought to their notice. The authorities should be mindful of

the fact that the laws of this country are equally applicable

to all citizens and no special treatment can be meted out

to any person on religious grounds.

18. The Panchayat is also at fault for having failed

to act after seeking explanation, finding the petitioner to

have effected construction in violation of the provisions of

the Kerala Panchayat Raj Act and the Panchayat Building

Rules. The photographs produced along with the writ W.P.(C). 15433/2022

petition shows water mixed with blood and remnants of

rituals flown and dumped on the road. Section 219K of the

Panchayath Raj Act prohibits the flowing of waste water or

any other filth to any portion of the road, except to a drain

or cesspool. The law being thus, the Panchayath cannot

abdicate its responsibility.

Based on the above findings, the writ petition is

ordered as under;

(i) Respondents 2 and 3 shall cause an inquiry to be

conducted through the 4th respondent and if the 8th

respondent is found to have constructed a place of worship

and conducting poojas and rituals, with members of the

public participating in it, immediate action shall be taken to

stop the activities.

(ii) The 5th respondent shall conduct an inquiry and if

slaughter of animals and birds is taking place in the

precincts of the 8th respondent's building, appropriate

action under the Kerala Animals and Birds Sacrifices

Prohibition Act shall be taken.

W.P.(C). 15433/2022

(iii) Having issued notice alleging violation of the

provisions of the Kerala Panchayat Raj Act and the Building

Rules, the Panchayat shall take appropriate follow up action

in the matter.

Sd/-

V.G.ARUN,

JUDGE

sb W.P.(C). 15433/2022

APPENDIX OF WP(C) 15433/2022

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE PHOTOGRAPHS OF THE TEMPLE SITUATED ON THE TOP FLOOR OF THE RESIDENTIAL BUILDING OF THE 8TH RESPONDENT.

Exhibit P2 THE TRUE COPY OF THE NOTICE OF THE ABOVE SAID FESTIVAL.

Exhibit P3 THE TRUE COPY OF THE PHOTOS OF WASTE FILLED PUBLIC ROAD AS PER ONE SUCH RITUALS.

Exhibit P4 THE TRUE COPY OF THE PETITION BEFORE THE PANCHAYAT ALONG WITH ANOTHER RESIDENCE SASI DATED 30-3-2022.

Exhibit P4A THE RECEIPT DATED 30-4-2022 ISSUED FROM THE RESPONDENT PANCHAYAT.

Exhibit P5 THE TRUE COPY OF THE QUESTIONNAIRE SUBMITTED AS PER RIGHT TO INFORMATION ACT DATED 6-4- 2022.

Exhibit P6 THE TRUE COPY OF THE REPLY FROM THE PANCHAYAT DATED 12.4.2022.

Exhibit P7 THE TRUE COPY OF THE COMPLAINT TO THE STATION HOUSE OFFICE DATED 6.4.2022.

Exhibit P8 THE TRUE COPY OF THE COMPLAINT TO THE REVENUE DIVISIONAL 8 OFFICER (3RD RESPONDENT) DATED 6-4-2022

Exhibit P9 THE TRUE COPY OF THE PETITION TO THE DEPUTY SUPERINTENDENT OF POLICE, ALUVA (4TH RESPONDENT) DATED 9-4-2022.

Exhibit P10 THE TRUE COPY OF THE PETITION FILED BY 19 PERSONS BEFORE THE 4TH RESPONDENT RURAL SUPERINTENDENT OF POLICE DATED 18-2-2022

RESPONDENT EXHIBITS

Exhibit R8(a) TRUE COPY OF THE RECEIPT ISSUED BY THE POLICE W.P.(C). 15433/2022

ON COMPLAINT OF THE 8TH RESPONDENTS WIFE DATED 24.12.2020

Exhibit R8(b) TRUE COPY OF THE RECEIPT ISSUED BY THE POLICE ON COMPLAINT OF THE 8TH RESPONDENT WIFE DATE 27.12.2020

Exhibit R8(C) TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF COMPANY DATED 22-07-2022.

RESPONDENT EXHIBITS

Exhibit R8(D) TRUE COPY OF THE ARTICLES OF ASSOCIATION DATED 15-07-2022.

RESPONDENT EXHIBITS

Exhibit R8(E) TRUE COPY OF THE COMMUNICATION OF ASSOCIATION OF COMPANY DATED 15-07-2022.