Madras High Court
P.Bison vs The District Collector on 21 January, 2021
W.P.(MD)No.886 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.886 of 2021
and
W.M.P.(MD)Nos.747 & 745 of 2021
P.Bison ... Petitioner
-Vs-
1.The District Collector,
Kanyakumari District,
at Nagercoil.
2.The Superintendent of Police,
Office of the Superintendent of Police,
Nagercoil,
Kanyakumari District.
3.The Revenue Divisional Officer,
O/o. Revenue Divisional Officer,
Nagercoil,
Kanyakumari District.
4.The Tahsildar,
Agastheeswaram Taluk,
Agastheeswaram,
Kanyakumari District.
5.The Commissioner,
Nagercoil City Municipal Corporation,
Nagercoil,
1/12
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W.P.(MD)No.886 of 2021
Kanyakumari District.
6.The Deputy Superintendent of Police,
O/o. Deputy Superintendent of Police,
Nagercoil,
Kanyakumari District.
7.The Inspector of Police,
Vadasery Police Station,
Vadasery,
Kanyakumari District.
8.Paulraj
9.Manikandan ... Respondents.
Prayer: Petition filed under Article 226 of the Constitution of India to issue
a Writ of Certiorarified Mandamus, to call for the records pertaining to the
impugned notice issued by the fifth respondent vide his Letter in Na.Ka.No.
10716/2020/F1, dated 28.12.2020 and consequential impugned order passed
by the third respondent vide his proceedings in A3/4730/2020, dated
02.01.2021 and quash the same as illegal and consequently, forbearing the
respondents 1 to 7 from interfering into the prayer sessions and performance
of the religious rituals conducted in the petitioner's building situated at JCC,
Good News Mission Sabai, No.105/C2, Gown Street, Vathiyarvillai,
Nagercoil, Kanyakumari District within the time stipulated by this Court and
for other reliefs.
For Petitioner : Mr.G.Anto Prince
For R1 to R6 : Mr.C.Ramesh
Special Government Pleader
2/12
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W.P.(MD)No.886 of 2021
ORDER
Heard the learned counsel appearing for the petitioner and the learned
Special Government Pleader appearing for R1 to R6.
2.The petitioner is a priest affiliated to one of the Christian
denominations. The petitioner states that he conducts prayer sessions and
other activities for the promotion of Christian religion. He would further
state that these activities are being conducted in the petition mentioned
premises. It is further claimed that these activities are going on for the last
23 years. Whileso, the petitioner wanted to renovate the premises. He
therefore applied to Commissioner, Nagercoil City Municipal Corporation
for permission. The fifth respondent informed the petitioner vide
Communication bearing Na.Ka.No.10716/2020/F1, dated 28.12.2020 that it
is not open to the Corporation to grant the permission sought for. The
petitioner was also issued with another communication dated 02.01.2021
issued by the RDO, Nagercoil, restraining the petitioner from carrying on
with any religious activities in the petition mentioned premises. The
petitioner had also been directed not to proceed with any construction
activity. Questioning these communications, the present writ petition has
been filed.
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W.P.(MD)No.886 of 2021
3.The learned counsel appearing for the petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition. His
claim is that his fundamental right guaranteed under Article 25 of the
Constitution of India has been infringed by the aforesaid refusals and denial
of permission. The petitioner also would refer to some of the Judgments
pronounced by the Madras High Court on earlier occasions. In support of
his contention that there is no need to get prior permission from any
authority for carrying on with the aforementioned religious activities, the
learned counsel wanted this Court to quash the impugned orders and restrain
the respondents from interfering with the religious activities of the petitioner
at the petition mentioned premises.
4.The learned Special Government Pleader appearing for the
respondents 1 to 6 submitted that the orders impugned in the writ petition are
strictly in conformity with the statutory provisions and that, therefore, no
interference is called for.
5.I carefully considered the rival contentions and went through the
materials on record.
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W.P.(MD)No.886 of 2021
6.Nagercoil was a Municipality till it became a Corporation. Tamil
Nadu District Municipalities Building Rules, 1972, governed the field till
recently. Rule 6(4) of the said Rules clearly states as follows:-
“(4)No site 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.
Provided that an appeal shall lie against the Collector's decision
to the Government who may issue such orders as they deem fit.”
7.The building rules contemplate “prior approval” of the District
Collector. The petitioner has nowhere pleaded that he had obtained the
prior permission of the District Collector for putting up the existing premises
which are used for public worship and religious purposes. The Rule is very
clear and categorical. It states that without prior permission of the District
Collector, no site can be used for construction of any building intended for
public worship or religious purposes. The petitioner further admits that he is
engaged in activities meant for promotion of Christian religion. Therefore,
for putting up or renovating the premises, in which, such activities are being
conducted or proposed to be conducted, the prior approval of the District
Collector is necessary and if such approval has not been obtained, then,
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W.P.(MD)No.886 of 2021
premises cannot be allowed to be used for such religious activities.
8.The aforesaid Rule and in particular, the expression “prior approval”
has already been dealt with by the Division Bench of the Madurai Bench of
Madras High Court in W.P.(MD)Nos.6493, 6494 & 6495 of 2019, vide order
dated 19.09.2019. The Division Bench (to which I was a party) held as
follows:-
“4.The learned counsel appearing for the petitioners would contend that
the requirement of obtaining prior approval is not mandatory but only directory.
We are unable to accept the aforesaid submission. The Hon'ble Supreme Court
quoting “Craies on Statute Law” in the decision reported in (2005) 7 SCC 234
(Shin-Etsu Chemical Co.Ltd vs. Aksh Optifibre Ltd) held that if the
requirements of a statute which prescribes the manner in which something is to
be done are expressed in negative language, then those requirements are in all
cases absolute, and that neglect to attend to them will invalidate the whole
proceeding.
5.In the case on hand also, the statute has expressed the requirement in a
negative language. The Rule starts with the expression “No site be used”. It is
also well settled that if penal consequences have been prescribed for not
adhering to a requirement, then it shall be construed as a mandatory requirement.
Section 317 of the Tamil Nadu District Municipalities Act, 1920 levies penalty if
the construction or reconstruction of any building is carried on or completed in
contravention of any lawful order or in breach of any provision contained in the
Act or in the Rule made thereunder. Thus, a violation of Rule 6(4) will invite
penal action in terms of Section 317 of the parent Act. That apart, an illegally
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W.P.(MD)No.886 of 2021
put up building will invite demolition also.
6.The expression used in the Rule is “prior approval”. The term “prior”
has been defined in Black's Law Dictionary, (Eighth Edition) as “preceding in
time or order”. Therefore, a person intending to use a site for putting up a
building for religious purposes will have to take the approval of the District
Collector before commencing the construction. The Collector can refuse
approval if in his opinion it is likely to endanger public peace and order. An
appeal shall lie against the Collector's decision to the Government. The fact
that an appeal is provided in the statute is a clear indicator of the importance
attached to the entire scheme. The provision does not talk of “post approval”.
One cannot put up a temple in violation of this Rule and then present the
authority with a fait accompli.
7.If the law prescribes that something is to be done in a certain manner, it
shall be done in that manner and not in any other manner. The consequence
has been clearly, categorically and unambiguously laid down. One must take
the prior approval of the District Collector for the construction of a building
intended for public worship and religious purposes and only thereafter start
construction. The meaning of the Rule is simple and plain. It only requires
strict implementation and application. If a building for public worship or
religious purpose has been constructed without the prior approval of the District
Collector, then law will have to take its own course.”
9.Kanyakumari is a communally sensitive region. It witnessed clashes
in the early 80's on communal lines. The Government of Tamil Nadu set up
Justice P.Venugopal Commission to enquire into the incident. The report of
the Commission was accepted and to prevent future clashes, the Government
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W.P.(MD)No.886 of 2021
of Tamil Nadu issued G.O.Ms.No.916, dated 29.04.1986. The said G.O
contemplates that for putting up any structure intended for religious use,
prior permission of the District Collector must be obtained. The said
requirement is still holding good.
10.The foremost contention of the petitioner's counsel is that the
fundamental right guaranteed under Article 25 of the Constitution of India
have been violated. But this right is not an absolute right. In fact, no right
can be absolute. The Constitution has specifically made these rights subject
to public order. Scope for judicial review in matters having law and order
implications is rather limited. The Hon'ble First Bench, in the decision
reported in 2004 5CTC 554 (Rama Muthuramalingam, Vs. The Deputy
Superintendent of Police) held that in administrative matters, the Court
should ordinarily defer to the decision of the administrators, unless the
decision is illegal or shockingly arbitrary.
11. In State of Karnataka and Ors. vs. Praveen Bhai Thogadia,
(2004) 4 SCC 684, it was observed that Courts should not normally interfere
with matters relating to law and order. They fall primarily within the domain
of the concerned administrative authorities who are by and large the best to
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W.P.(MD)No.886 of 2021
assess and to handle the situation depending upon the peculiar needs and
necessities, within their special knowledge. It was further observed that in
such matters, court cannot act as an appellate authority over the decision of
the official concerned. Unless the order passed is patently illegal and without
jurisdiction or with ulterior motives and on extraneous considerations of
political victimization by those in power, normally interference should be the
exception and not the rule. The Court cannot in such matters substitute its
view for that of the competent authority.
12.In the typed set of papers, the petitioner has not enclosed any
permission obtained from the District Collector before putting up the
premises in question. Even according to the petitioner, “Good Newses
Mission Church” was registered only in 2001. As already pointed out, the
Building Rules are in force right from 1972. The petitioner has only given a
representation on 04.12.2020. It cannot be called as a statutory or a formal
application. The RDO, Nagercoil, is the executive Magistrate under Cr.P.C.
and he has to maintain law and order. He had stated that there is opposition
from the local public against the petitioner's activities. The expression
“considerable opposition is found in the impugned communication”. The
Tahsildar as well as the local police have also advised that the petitioner
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W.P.(MD)No.886 of 2021
should not proceed with the construction activity. The RDO had only stated
that since there is scope for breach of law and order, the petitioner can put up
construction or hold prayer meetings only after getting permission. No
exception can be taken to this communication of the RDO. No Court can
issue Mandamus contrary to law. The petitioner wants this Court to do
exactly that. I decline to do so. The impugned communications are well
founded. They do not call for interference. The Writ Petition is dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
21.01.2021
Index : Yes/No
Internet : Yes/No
rmi
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
To
1.The District Collector,
Kanyakumari District,
at Nagercoil.
2.The Superintendent of Police,
Office of the Superintendent of Police,
Nagercoil,
Kanyakumari District.
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W.P.(MD)No.886 of 2021
3.The Revenue Divisional Officer,
O/o. Revenue Divisional Officer,
Nagercoil,
Kanyakumari District.
4.The Tahsildar,
Agastheeswaram Taluk,
Agastheeswaram,
Kanyakumari District.
5.The Commissioner,
Nagercoil City Municipal Corporation,
Nagercoil,
Kanyakumari District.
6.The Deputy Superintendent of Police,
O/o. Deputy Superintendent of Police,
Nagercoil,
Kanyakumari District.
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W.P.(MD)No.886 of 2021
G.R.SWAMINATHAN, J.
rmi
W.P.(MD)No.886 of 2021
and
W.M.P.(MD)Nos.747 & 745 of 2021
21.01.2021
http://www.judis.nic.in
