Madras High Court
K.Ramesh vs The State Of Tamil Nadu on 23 December, 2021
W.P.No.21143 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :23.12.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.21143 of 2014
and
M.P.No.1 of 2014
1. K.Ramesh
2. K.Saravanan
3. G.Kaliaperumal
4. R.Pavadaisamy
5. M.Panchavarnam ...Petitioners
Vs.
1. The State of Tamil Nadu,
Rep. By its Secretary,
Home Department,
Fort St. George, Chennai – 600 005.
2. The Director General of Police,
Chennai.
3. The District Collector,
Nagapattinam.
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W.P.No.21143 of 2014
4. The Superintendent of Police,
Nagapattinam.
5. The District Revenue Officer,
Nagapattinam.
6. The Deputy Superintendent of Police,
Sirkazhi, Nagapattinam District.
7. The Tahsildar,
Sirkazhi.
8. The Inspector of Police,
Poombhuhar Police Station,
Sirkazhi Taluk,
Nagapattinam District.
9. The Chairman,
Tamil Nadu State Minorities Commission
735, Anna Salai, LLA Building,
Chennai – 600 002. ...Respondents
PRAYER: Writ Petition filed Under Article 226 of the Constitution of
India, to issue a Writ of Mandamus, directing the respondents 1 to 4 to take
over the matter in relating to Crime No.120 of 2012 on the file of the 8 th
respondent and transfer the same to some other agency and entrust the same
to a competent officer not below the rank of Deputy Superintendent of
Police to investigate the same and file a final report within a stipulated
period of time as fixed by this Hon'ble Court, further directing the
respondents to give a proper protection to the petitioners and their family to
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W.P.No.21143 of 2014
lead their normal and peaceful life in their village at Vanagiri, Sirkazhi
Taluk, Nagapattinam District.
For Petitioners :Mr.R.Ezhilarasan
For Respondents :M/s.N.Senthilselvi
Government Pleader
[For R1 to R9]
ORDER
The relief sought for in the present writ petition is to direct the
respondents 1 to 4 to take over the matter in relating to Crime No.120 of
2012 on the file of the 8th respondent and transfer the same to some other
agency and entrust the same to a competent officer not below the rank of
Deputy Superintendent of Police to investigate the same and file a final
report within a stipulated period of time.
2. The petitioners state that they are permanently residing at Tsunami
Nagar, Vanagiri, Sirgazhi Taluk, Nagapattinam District. The petitioners and
their relatives, consisting five families, converted to Christianity.
3. The grievances of the writ petitioners are that the villagers are
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W.P.No.21143 of 2014
raising objections for their conversion to Christianity and practicing
Christianity in their residence.
4. The learned counsel for the petitioners made a submission that the
petitioners are being harassed by the villagers and their safety is in peril.
Thus, the petitioners are constrained to file the present writ petition.
5. The complaint given by the petitioners in the year 2012 was
registered in Crime No.120 of 2012 and no progress has been made by the
Police authorities.
6. In view of the fact that the authorities have not initiated action on
the complaint, the petitioner filed the writ petition for transfer of the case by
changing the investigating Agency.
7. The learned Government Advocate produced the copy of the
proceedings of the Chairman, State Minority Commission, and also the
proceedings of the District Superintendent of Police dated 10.08.2013
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W.P.No.21143 of 2014
addressed to the Director General of Police. The Superintendent of Police
informed that the case was registered and thereafter, Peace committee
meeting was conducted and the agitation was withdrawn and the people are
living in peace in that locality. The said proceedings of the year 2013 shows
that the authorities have conducted a Peace meeting and in the Peace
meeting, the agitations were withdrawn and the petitioners and the other
residents were living peacefully. In the year 2014 also, Peace meetings were
conducted by the Sub-Collector, Mayiladuthurai. In the said meeting also,
the persons concerned were participated. The minutes of the meeting dated
08.05.2014 reveals that for the purpose of conducting any religious
festivals, meetings or other activities, permission from the Police
Department must be obtained. Further, such religious functions or festivals
are to be conducted in the place permitted by the Government. Further, the
minutes says that there cannot be any restrictions in respect of carrying on
their fishing rights or to sell the fishes or otherwise. It is further resolved
that nobody should be treated indifferently in the village by any person of
the village.
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W.P.No.21143 of 2014
8. The Resolution passed in the Peace meeting reveals that nobody
should interfere with the personal religious practices of any person and
further, no interference should be made in respect of performing their
profession practice or trading or selling the fishes or otherwise. However, it
was made clear that the religious festivals or converting the residence as
Churches are made without the permission of the competent authorities,
more specifically, such festivals can be conducted only from obtaining
permission from the District Collector and Police Authorities.
9. The District Municipalities Act, the District Panchayat Act, and all
such Statues contemplates that residential places cannot be converted as
religious places. For conducting religious festivals or religious practices in a
common manner, appropriate permission must be obtained from the
competent authority under the provisions of the Act. In other words, Church
activities or common religious activities by many persons or religious
festivals cannot be conducted without obtaining proper permission from the
competent authority and in residential places, if anybody wants to construct
any Church or otherwise, then also, appropriate permission must be
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W.P.No.21143 of 2014
obtained from the competent authorities.
10. In respect of the religious rights contemplated under Article 25 of
the Constitution of India and for constructing religious building in the
residential area, this Court elaborately considered the issues in W.P.No.887
of 2015 dated 26.10.2021 with reference to the fundamental rights of citizen
as well as the rules in force for the purpose of construction of such religious
building in residential areas. The relevant paragraphs are extracted here
under:
“18. The larger issue to be considered by this Court is
about the religious right to be exercised by the citizen under
Article 25 of the Constitution of India. Article 25 sub-clause (1)
unambiguously stipulates that subject to public order, morality
and health and to the other provisions of Part III, all persons
are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion. Thus, the
fundamental right under Article 25 of the Constitution of India
is subject to public order, morality and health.
19. Right to life under Article 21 is an absolute
fundamental right and exercise of fundamental right under
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W.P.No.21143 of 2014
Article 25 is undoubtedly subject to the right to life enunciated
under Article 21 of the Constitution of India. Thus, every citizen
while exercising the right under Article 25 is duty bound to
borne in mind that the right to life of other citizen is to be
respected. In the event of any violations, such violations or
otherwise are actionable. Thus, Article 25 imposes certain
conditions for exercise of religious rights subject to public
order, morality and health includes many issues in the interest
of public and the Authorities Competent in the event of
violations are empowered to initiate action. Thus creating
nuisance is an offence punishable under the Indian Penal Code.
Noise pollution over and above the prescribed level is also an
offence which all are actionable under the relevant provisions
of the Act and Rules. Construction of any Religious Institutions
without proper approval under relevant Statute is actionable,
for the purpose of initiation of action to demolish any such
unauthorised construction or religious institutions.
20. No person can be allowed to commit any illegality
merely on the ground of sentiments of the people or under the
guise of religious rights, any such sentiments leading to
illegality can never be tolerated by the State and its Authorities.
Any leniency would lead to infringement of fundamental rights
of the other citizen and therefore, the State is duty bound to
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W.P.No.21143 of 2014
ensure that all such religious rights are being exercised by any
citizen in the manner contemplated and to the extent
permissible under the Constitution of India. Merely by creating
sentiments in the public or in any religious places, no person
can be allowed to carry on any such illegal activities or
otherwise. Encroachments, usage of loudspeakers causing
disturbance and nuisance are to be viewed seriously and all
necessary actions are to be initiated for the purpose of
restraining such persons from creating such nuisances or
disturbances to the public at large.
21. Unity in diversity is the principle enunciated under
the Indian Constitution. Unity can be preserved only when the
Authorities controlled the illegalities being committed in the
name of the religion or otherwise. Thus, the religious rights are
subject to conditions and subject to the rights of the other
citizen and hence, it is to be borne in mind that religious right
under Article 25 can never be an absolute fundamental right
and subject to the rights of other citizen and subject to the laws
in force. The laws enforceable are to be considered by this
Court.
22. For construction of Religious Institutions, the Tamil
Nadu District Municipalities Act, Tamil Nadu Panchayats Act
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or respective Corporation Acts are providing procedures and
conditions. Building Plan Approval is to be obtained for
construction of Religious Institutions. The manner in which
such applications are to be considered also enumerated under
the provisions of the Act and the Rules. All such applications
submitted for construction of Religious Institutions are to be
considered strictly in accordance with the provisions of the Act
and the Rules. Construction of Religious Institutions should not
affect the peaceful living of the people in that particular
locality. Thus, the Authorities are expected to be cautious, while
granting permission to construct Religious Institutions and in
the name of religion, the people should not venture into such
activities, which all are detrimental to the public order or
affecting the peaceful living of the people in that locality.
Therefore, approval for construction of Religious Institutions
are to be regulated in such a manner respecting the
constitutional rights of all citizens and the Authorities cannot
deal with such applications in a casual manner. Thus, every
such application submitted for construction of Religious
Institutions must be considered in the manner contemplated
under the provisions of the Act and the Rules and also taking
into consideration the fundamental rights of the citizens,
including the right to life enunciated under Article 21 of the
Constitution of India.
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W.P.No.21143 of 2014
23. More elaborately the consideration of application
cannot be confined with reference to the provisions of the Act
and the Rules, in view of the fact that Article 25 of the
Constitution of India imposes conditions of public order,
morality and health. Thus, beyond the scope of the provisions of
the Act and the Rules, the spirit of the constitution must prevail
over and the spirit and perspectives involved in Article 25 of the
Constitution must be taken into consideration by the Authorities
Competent, while considering any such application for grant of
permission for construction of Religious Institution and
performance of the religious activities. Each word in Article 25
denotes and provides larger implications and rights of the
citizen. When freedom to exercise religious right is subject to
public order. Likelihood of disputes, likelihood of religious
disheartening and various other related acts are to be
considered. While considering application for the purpose of
grant of permission for construction of religious institutions,
morality perhaps would provide and keeping all other aspects,
health is of more importance. Now health being an integral
part of Article 21 of the Constitution of India, the rights of
children, sick and aged people and the rights of citizen in
general for good health are all to be taken into consideration.
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24. In our country, it is most common that many such
Religious Institutions are causing nuisance and disturbances.
Imagine a situation of any person after hard work going to bed
for sleep and during mid night or early morning if he is
disturbed on account of usage of loudspeaker certainly it
creates not only mental agony but also leads to mental
depression. Thus, peaceful living and health can be ensured
only if such irregular and illegal activities are controlled by the
Authorities. Every citizen has got fundamental right of peaceful
living and health being integral part of Article 21 which
provides right to life. Thus the Authorities must ensure that
such valuable right to life for all the citizen is protected and it
is the duty of the State to provide such protection to every
citizen of this Great Nation.
25. Coming to the relevant Rules with reference to the
writ petition on hand, the Tamil Nadu Panchayat Building
Rules, Rule 4 sub-clause (3) stipulates that “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 purpose of the site and building is likely to
endanger public peace and order.”
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26. The above said Rule is in consonance with the
conditions enumerated under Article 25 sub-clause (1) of the
Constitution of India. The Rule itself contemplates that the
approval is to be granted only if there is any likelihood to
endanger public peace and order and thus, if there is any
public likelihood of endanger of public peace and order, then
no permission is to be granted for the construction of a building
intended for public worship or for religious purposes.
27. As far as the writ petitioner is concerned, the
Planning Permission was obtained on 07.09.1998. The
petitioner had intended to develop the Church by carrying out
renovation and by constructing additional building. The
application was submitted in the year 2014. However, the said
application was not considered so far. Meanwhile, law and
order problems were created. The people of that village raised
objections. The Peace Committee Meetings were conducted. In
the meanwhile, the petitioner carried out construction in peace
meal.
28. This being the factum established, this Court is of the
considered opinion that the petitioner cannot continue the
construction works without getting approval of Building Plan
from the Competent Authorities. The Competent Authorities are
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W.P.No.21143 of 2014
duty bound to consider the application strictly in accordance
with the Act and the Rules and also taking into consideration
the conditions imposed under Article 25 of the Constitution of
India in respect of maintenance of public order, morality and
health of the people residing in nearby vicinity and the people
of that village.
30. It is relevant to consider the Noise Pollution
(Regulation and Control) Rules, 2000, which was published in
the Gazette of India vide S.O. 123(E) dated 14.02.2000 and
subsequently amended on 22.11.2000, 11.10.2002, 19.09.2006
and 11.01.2010 under the Environment (Protection) Act, 1986.
31. Under the Noise Pollution (Regulation and Control)
Rules, 2000, the Authorities are bound to initiate action if
violations are brought to their notice or complaints are made.
Rule 2(c) defines 'Authority' means and includes any authority
or officer authorized by the Central Government, or as the case
may be, the State Government in accordance with the laws in
force and includes a District Magistrate, Police Commissioner,
or any other officer not below the rank of the Deputy
Superintendent of Police designated for the maintenance of the
ambient air quality standards in respect of noise under any law
for the time being in force”.
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32. Rule 5 imposes restrictions on the use of loud
speakers / public address system and sound producing
instruments. Sub Rule (1) contemplates "a loud speaker or a
public address system shall not be used except after obtaining
written permission from the authority". Sub Rule (2) denotes “a
loud speaker or a public address system or any sound
producing instrument or a musical instrument or a sound
amplifier shall not be used at night time except in closed
premises for communication within, like auditoria, conference
rooms, community halls, banquet halls or during a public
emergency”.
33. Rule 7 stipulates 'complaints to be made to the
Authority'. Sub Rule (2) to Rule 7 contemplates “the Authority
shall act on the complaint and take action against the violator
in accordance with the provisions of these rules and any other
law in force”.
34. Rule 8 provides “power to prohibit etc. continuance
of music sound or noise” and Schedule provides “Ambient Air
Quality Standards in respect of Noise”.
35. In respect of the actions to be initiated Environment
(Protection) Act, 1986, more specifically Section 15 provides
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'Penalty for Contravention of the Provisions of the Act and the
Rules, Orders and Directions'. The noise pollution, regulation
and control rules are notified under the provisions of the
Environment (Protection) Act, more specifically, by invoking
Section 25. Thus if any violations of such Rules or directions
are established/ proved, then penalty for contravention of the
provisions of the Act and also the Rules are to be imposed.
36. Sub section (1) to Section 15 of the Environment
(Protection) Act, 1986 contemplates “whoever fails to comply
with or contravenes any of the provisions of this Act, or the
rules made or orders or directions issued thereunder, shall, in
respect of each such failure or contravention, be punishable
with imprisonment for a term which may extend to five years
with fine which may extend to one lakh rupees, or with both,
and in case the failure or contravention continues, with
additional fine which may extend to five thousand rupees for
every day during which such failure or contravention continues
after the conviction for the first such failure or contravention”.
37. Therefore, laws in force are to be enforced by the
public authorities. It is not as if the laws are enacted for the
purpose of keeping it in Books. Thus the Authorities are to be
sensitised to protect the fundamental rights of every citizen of
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this Great Nation. Our country had enacted effective and
efficient laws in order to protect the rights of the citizen.
However, its implementation lacks. Thus, the Authorities are to
be sensitised. They can never be allowed to take a partisan
attitude in the matter of implementing the laws in force. Non
implementation or improper implementation must be viewed
seriously as it infringes the rights of the citizen at large.
38. In a vibrant democracy, the rights of the citizen are
valuable and paramount importance. Of course fundamental
duties are to be borne in mind and reminded off. Fundamental
duties under Article 51-A of the Indian Constitution must go
together with the rights and the duties are corresponding in
nature and thus, exercise of rights is to be done only keeping in
mind the duties involved. Any Religious Institution exercising
their right must be reminded off their duties towards other
citizen, upon whose rights are also to be protected.
Unfortunately such situation is not prevailing in this Great
Nation in view of the lackadaisical approach of the Authorities
in the matter of dealing with the violations and infringement of
the rights.
39. One may form an opinion that it would be sensitive if
any actions are initiated. However, they are forgetting the other
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W.P.No.21143 of 2014
side that inaction will lead to further chaos. Thus actions then
and there on noticing the irregularities and illegalities are of
paramount importance, which is the duty mandated on the
authorities.
40. Importantly, Section 19 of the Environment
(Protection) Act, 1986 contemplates 'cognizance of offences'.
Accordingly a complaint is to be made by the persons. Thus sub
clause (b) to Section 19 empowers the any person given a
complaint by issuing notice of not less than 60 days. Thus any
person is empowered to send complaint in the manner
prescribed.
41. This Court is of the considered opinion that all
Religious Institutions must adhere to the Rules of law for the
purpose of conducting their respective religious activities. Any
such religious activities affecting the rights of the other citizen
and any infringement of rights under the Constitution of India
must be viewed seriously and all appropriate actions are to be
initiated in the event of any complaint or otherwise.
42. The prevailing situation cannot be brushed aside by
this Court. The prevailing situation though painful is to be
improved only through effective actions of the Public
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Authorities. There are many Religious Institutions across the
State of Tamil Nadu are violating the noise pollution and
Regulation Control Rules and the provisions of the other
Statutes. However officials are insensitive in the matter of
initiation of actions regarding such violations. Thus, the State
is duty bound to sensitise the Authorities for the purpose of
protection of the fundamental rights of the citizen of our Great
Nation.
43. Enacting the Laws or insufficient implementation
of Laws are to be deprecated. Laws are enacted to protect the
rights of the citizen under the Constitution. If such Laws are not
implemented effectively, then also we are committing an act of
unconstitutionality. Thus, unconstitutionality is not only
relatable to the provisions of the Statute, but also relatable to
an ineffective or non-implementation of the Statutes resulting
violations of rights ending unconstitutionality. Thus, the State
must act in consonance with the constitutional principles and
the laws enacted for the purpose of protecting the rights of the
citizen, more specifically, with reference to the religious rights.
44. In view of the fact that many such complaints are
raised across the State of Tamil Nadu and many people are
hesitating to inform and submit complaint in these aspects as
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W.P.No.21143 of 2014
they are afraid of giving such complaints on account of
religious sentiments, and due to fanatic approach of few fringe
groups.
45. It is the duty of the State to issue appropriate orders
regulating the activities of the Religious Institutions and to
ensure the right of the citizen in general. One cannot recuse
that common men are afraid of giving complaint against
Religious Institutions. In such circumstances, the State being
the custodian is duty bound to initiate action under the relevant
provisions of law and for this purpose, this Court is inclined to
suo motu impleaded the Chief Secretary to Government State of
Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009, for
the purpose of issuing necessary
directions/circulars/instructions to all the Competent
Authorities across the State of Tamil Nadu, so as to ensure all
appropriate actions are initiated in respect of the illegalities
and irregularities and violations in the matter of religious
activities, including noise pollutions and building violations
etc. Mr.K.M.D.Muhilan, learned Government Advocate took
notice on behalf of the impleaded eighth respondent.”
11. In view of the principles considered in the above judgment,
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people belong to various religions and following religious practices mus be
allowed to continue their religious practices in a peaceful manner.
Respecting each others fundamental right is of paramount importance.
However, if anybody wants to propagate a religion in a particular manner
commonly, then appropriate permission or approval of the competent
authorities are required. In the present case, the writ petition is filed merely
stating that the people of that locality conducted an agitation. When the
large number of people conducted agitation, the authorities conducted Peace
meeting and passed certain resolutions. Under these circumstances, no
doubt, the right of the petitioners are to be protected. Equally, their
activities are to be monitored by ensuring that the sentiments and the
religious practices of other people are also respected by the persons
concerned. Mutual respect of rights is the constitutional mandate and in the
event of violation by any person, the competent authorities are bound to
initiate all appropriate actions in the manner known to law. In respect of the
criminal case, the authorities competent are bound to proceed in accordance
with law as expeditiously as possible.
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12. With these observations, the writ petition stands disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
23.12.2021
Internet:Yes
Index : Yes
Speaking Order:Yes
nti/kak
To
1. The Secretary,
Home Department,
Fort St. George, Chennai – 600 005.
2. The Director General of Police,
Chennai.
3. The District Collector,
Nagapattinam.
4. The Superintendent of Police,
Nagapattinam.
5. The District Revenue Officer,
Nagapattinam.
6. The Deputy Superintendent of Police,
Sirkazhi, Nagapattinam District.
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W.P.No.21143 of 2014
7. The Tahsildar,
Sirkazhi.
8. The Inspector of Police,
Poombhuhar Police Station,
Sirkazhi Taluk,
Nagapattinam District.
9. The Chairman,
Tamil Nadu State Minorities Commissionm
735, Anna Salai, LLA Building,
Chennai – 600 002.
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W.P.No.21143 of 2014
S.M.SUBRAMANIAM, J.
nti/kak
W.P.No.21143 of 2014
23.12.2021
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