Pastor K. Rajan and The Malayalam District Council of the South India Assemblies of God v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO. 7828 OF 2014 ``` ## **`PETITIONER/S:`** ``` 1PASTOR K.RAJAN RESIDING AT BETHEL BHAVAN, PEREKONAM, MANAKALA, VAZHICHAL P.O., NEYYATTINKARA THALUK, THIRUVANANTHAPURAM - 695 125 ``` ``` 2THE MALAYALAM DISTRICT COUNCIL OF THE SOUTH INDIA ASSEMBLIES OF GOD POST BOX NO.53, PUNALUR, KOLLAM DISTRICT - 691 305, REPRESENTED BY ITS AUTHORISED REPRESENTATIVE, K.RAJAN, RESIDING AT BETHEL BHAVAN, (PASTOR OF ASSEMBLIES OF GOD CHURCH), PEREKONAM, MANAKALA, VAZHICHAL P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695 125. ``` ``` BY ADVS. SRI.JOHN MATHEW SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY HOME DEPARTMENT, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001 ``` WP(C)No.7828 of 2014 2 - **`2 ADDITIONAL SECRETARY (INTELLIGENCE) HOME DEPARTMENT, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** - **`3 DISTRICT COLLECTOR/ ADDITONAL DISTRICT MAGISTRATE THIRUVANANTHAPURAM COLLECTORATE THIRUVANANTHAPURAM, CIVIL STATION, KUDPPANAKUNNU, THIRUVANANTHAPURAM - 695 043`** - **`4 DISTRICT POLICE CHIEF OFFICE OF THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM - 695 002.`** - **`5 DEPUTY SUPERINTEND OF POLICE NEYYATTINKARA OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 121.`** - **`6 CIRCLE INSPECTOR OF POLICE VELLARADA CIRCLE, VELLARADA, THIRUVANANTHAPURAM - 695 505.`** - **`7 STATION HOUSE OFFICER / SUB INSPECTOR ARRYAMKODE POLICE STATION, ARRYAMKODE, THIRUVANANTHAPURAM - 695 505.`** - **`8 REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM - 695 043.`** - **`9 TAHSILDAR NEYYATTINKARA THALUK OFFICE NEYYATTINKARA, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 021.`** - **`10 VILLAGE OFFICER OTTASEKHARAMANGALAM OFFICE OF THE VILLAGE OFFICER, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125.`** WP(C)No.7828 of 2014 3 |**`11`**|**`OTTASEKHARAMANGALAM GRAMA PANCHAYAT`**| |---|---| ||**`REPRESENTED BY ITS SECRETARY,`**| ||**`OTTASEKHARAMANGALAM,`**| ||**`NEYYATTINKARA,`**| ||**`THIRUVANANTHAPURAM - 695 125.`**| |**`12`**|**`SECRETARY`**| ||**`OTTASEKHARAMANGALAM GRAMA PANCHAYAT,`**| ||**`OTTASEKHARAMANGALAM,`**| ||**`NEYYATTINKARA,`**| ||**`THIRUVANANTHAPURAM - 695 125.`**| |**`13`**|**`V.M. MANUKUMAR`**| ||**`RESIDING AT SREEMAKAM (H),`**| ||**`PEREKKONAM,`**| ||**`VAZHICHAL P.O.,`**| ||**`THIRUVANANTHAPURAM - 695 125.`**| |**`14`**|**`GIRIGA KUMARI`**| ||**`RESIDING AT MOHANAVILASAM (H),`**| ||**`PEREKKONAM,`**| ||**`VAZHICHAL P.O.,`**| ||**`THIRUVANANTHAPURAM - 695 125.`**| |**`15`**|**`BINU`**| ||**`RESIDING AT SHALOM (H),`**| ||**`PEREKKONAM,`**| ||**`VAZHICHAL P.O.,`**| ||**`THIRUVANANTHAPURAM - 695 125.`**| |**`16`**|**`N. VIJAYAN`**| ||**`RESIDING AT VIJAYALAYAM (H),`**| ||**`PEREKKONAM,`**| ||**`VAZHICHAL P.O.,`**| ||**`THIRUVANANTHAPURAM - 695 125.`**| |**`17`**|**`D. BALAN`**| ||**`RESIDING AT VINOD BHAVAN (H),`**| ||**`PEREKKONAM,`**| ||**`VAZHICHAL P.O.,`**| ||**`THIRUVANANTHAPURAM - 695 125.`**| WP(C)No.7828 of 2014 4 ``` 18K. RADHAKRISHNAN RESIDING AT NELLIMOODU (H), (VICE PRESIDENT HINDU AIKYAVEDI ARYANKODE PANCHAYAT COMMITTEE), MANJAMCODE, THIRUVANANTHAPURAM - 695 125. ``` ``` BY ADVS. SRI.MATHEW JOHN (JMA) SRI.M.R.SARIN SRI.VINU SASIDHARAN ``` ``` OTHER PRESENT: ``` ``` SRI BINOY DAVIS, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C)No.7828 of 2014 5 ## **J U D G M E N T** The petitioners have approached this Court challenging Ext.P9 order of the District Collector, Thiruvananthapuram, refusing permission to the petitioners to construct a church/prayer hall in Re-survey Nos.141/7-1 of Ottasekharamangalam Village in Neyyattinkara Taluk and Ext.P.11 order of the Government on an appeal against Ext.P9. The property in question was acquired by the 1[st] petitioner in the name of his wife. Applications were made to construct a residential building along with a prayer hall. In the year 2008, the land together with a partially constructed building, was transferred to the 2[nd] respondent through a gift deed. 2. A reading of Ext.P9 order of the District Collector, Thiruvananthapuram, will indicate that the permission was refused, taking into consideration the fact WP(C)No.7828 of 2014 6 that the authorisation to construct a prayer hall/church in the said locality would result in severe law and order problems and communal tensions and would also affect communal harmony in the area. An appeal filed against Ext.P9 order was also rejected by the Government through Ext.P11 order for the same reasons. 3. The learned counsel appearing for the petitioners would submit that Exts.P9 and P11 orders are illegal and unsustainable in law. It is submitted that the persons in the locality have no objection to the prayer hall/church functioning in the said premises. It is submitted that notwithstanding the rejection of the permission, the prayer hall/church is presently functioning there, and there have been no communal tensions. It is submitted that, in such circumstances, Exts.P9 and P11 orders are liable to be quashed, and it is to be declared that the petitioners are entitled to permission as prayed for. WP(C)No.7828 of 2014 7 4. The learned Government Pleader vehemently opposes granting any relief to the petitioners. It is submitted that with reference to Ext.P9 order that the said order was issued taking into consideration various reports referred to in Ext.P9, which indicated that the permission to construct a prayer hall/church in the property in question would cause communal tensions and would affect the communal harmony of the area in question. It is submitted that such a decision by the competent authority cannot be reviewed in a writ petition under Article 226 of the Constitution of India as long as there is nothing to suggest that the decision was taken arbitrarily and without sufficient material to justify it. The learned Government Pleader has also placed for my consideration the judgments of this Court in **Seventh Day Adventist Church and Another v. State of Kerala and Others,** 2018 (2) KLT 685 and **Noorul Islam Samskarika Sangam Thottekkad, Malappuram v. District Collector, Malappuram and Others** , 2022 (5) WP(C)No.7828 of 2014 8 KHC 595 in support of this contention. The learned Government Pleader adds that though permission was denied through Exts.P9 and P11, the petitioners have continued with the functioning of the prayer hall and in respect of which, certain criminal cases have also been registered. 5. The learned counsel appearing for respondents 15 to 17 would submit that they are immediate neighbours of the property and have no objection to the prayer hall/church being constructed/functioning there. 6. In reply, the learned counsel appearing for the petitioners would submit that the church/prayer hall has been functioning in the said locality since 1999. It is submitted that the provisions of the Building Rules and the provision requiring permission of the District Collector were introduced only in the Panchayath in question in 2011, and the Manual of Guidelines to Prevent and Control Communal Disturbances and to WP(C)No.7828 of 2014 9 Promote Communal Harmony, 2005 itself came into operation only in 2005. It is, therefore, submitted that a church/prayer hall that was already functioning cannot be termed illegal based on a manual introduced later and based on rules which came into force only much later. 7. I have considered the contentions raised. In **Noorul Islam Samskarika Sangam Thottekkad** (supra) this Court held:- “19. 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 æare sufficient number of religious places and prayer halls to all the communities in the State even as per the 2011 Census Reports 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 WP(C)No.7828 of 2014 10 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 WP(C)No.7828 of 2014 11 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 WP(C)No.7828 of 2014 12 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.” ## 8. In **Seventh Day Adventist Church** ’s case ## (supra), this Court has held as follows; “11. Having evaluated the situation and the case put forth by the parties, the question to be decided is whether any manner of interference is warranted to Ext.R6(a) Manual of Guidelines issued by the State Government. It is clear from Ext.R6(a) that, it is mainly dealing with guidelines for granting permission for the construction of new places of worship/renovation of the existing ones. What I could gather is, the spirit behind issuing Ext.R6(a) is to maintain communal harmony by prohibiting communal violence, which leads to loss of lives and properties. The guidelines are issued, to be adopted by the District Administration to WP(C)No.7828 of 2014 13 equip themselves to deal with communal violence or any other untoward situation firmly and at the same time to promote communal harmony for peaceful coexistence and to bring about unity in diversity. It was therefore felt that, it is essential for the Administration to anticipate the developments and make advance preparation for preventing any communal riot and even if the incidents are of trivial nature, between the members of two communities inhabiting in any particular area. Other stipulations are contained in Ext.R6(a) in order to identify any sensitive issue in any particular area and do the necessary in order to prevent the same. Clause 23 of Ext.R6(a) read thus: “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 unauthorized 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. WP(C)No.7828 of 2014 14 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 should not be an traffic, 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 maybe, (ii) Any new construction of a place of worship shall be done only with the clearance of the District Administration. Any religious activities centered around a newly established places of worship should not precipitate communal tension or law and order situation. Before sanctioning requests for construction of new places of religious worship, the District Administration should WP(C)No.7828 of 2014 15 ensure this. In such cases, the District Administration may take recourse to shift the places of worship after arriving at a consensus with the parties concerned.” 12. It is clearly discernible from subclause (a) of clause 23 that, renovation of existing places of worship can only be undertaken after informing the matter to the District Administration. However, any addition or expansion of the existing structure should be done only with the previous permission and concurrence of the District Administration. Sub-clause a(ii) of clause 23 clearly stipulates that, any new construction of place of worship shall be done only with the clearance of the District Administration. It is also stipulated thereunder that, any religious activities centered around a newly established place of worship should not participate communal tension or law and order situation and before sanctioning requests for construction of new places or worship, the District Administration should ensure the same. As per clauses 24 and 25, it is clearly stipulated, the Religious Institutions (Prevention of Misuse) Act, 1988 and the WP(C)No.7828 of 2014 16 Places of Worship (Special Provisions) Act, 1991 shall be strictly implemented. Therefore, in my considered opinion, the Manual of Guidelines is issued in accordance with the Statute already in vogue and also drawing power from Art. 162 of the Constitution of India. Even though learned counsel for petitioners has heavily relied upon Art.25 and Art 26 of the Constitution of India, the rights enumerated thereunder can be enjoyed by any person for propagation of religion and to manage the religious affairs subject to public order, morality and health. Whatever rights enjoyed by the religious denominations under Art.25 and Art. 26 of Constitution of India can only be subordinate to the peaceful coexistence and communal harmony among all religions and its denominations. Moreover, so far as the maintenance of law and order is concerned, one of the prime areas is, on the basis of the religious practice enjoyed by various religions and its denominations, which are very sensitive in nature and it is the duty and obligation of the Government to ensure that, peace and communal WP(C)No.7828 of 2014 17 harmony prevails within the State. Moreover, petitioner could not point out violation of any provisions of law, consequent to the introduction of Manual of Guidelines by the State Government, and therefore, I am of the considered opinion that, all religions will have to follow Ext. R6(a) issued by the State Government before carrying out any construction, reconstruction etc. etc. as is contemplated under Ext.R6(a). Apart from the same, the Manual of Guidelines is recognized by proviso to sub-R.6B of R.5 of the Kerala Municipality Building Rules, 1999, which read thus: Provided that in the case of development or redevelopment for religious purpose or worship, prior approval or clearance or permission and concurrence as the case may be, of the District Collector concerned shall be obtained and also the conditions stipulated in the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony which is in force have to be complied with. Applications for renovation WP(C)No.7828 of 2014 18 without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship can be considered by the Secretary after informing the District Collector in form in Appendix - N duly filled by the applicant and verified by the Secretary. The permit shall be issued only after the receipt of the concurrence by the District Collector". I am in respectful agreement with the view taken by this Court in **Noorul Islam Samskarika Sangam** (supra) and **Seventh Day Adventist Church** (supra). The contention of the learned counsel for the petitioner that the provisions of the **Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005** have no application since a church was already functioning in the locality cannot be accepted as the said fact is not relevant. Further, it is to be noted that property was transferred to the 2nd respondent only in the year 2008, WP(C)No.7828 of 2014 19 which, at any rate, is after the provisions of the manual came into force. Moreover, even going by the pleadings in the Writ Petition, what was transferred to the 2nd respondent was the property together with **a partially constructed residential house.** Having heard the learned counsel as above and having regard to the facts and circumstances of this case and the law laid down by this Court in **Noorul Islam Samskarika Sangam** (supra) and **Seventh Day Adventist Church** (supra), I am of the view that this writ petition can be disposed of, directing the third respondent to re-consider the application filed by the petitioners for permission to construct a church in terms of the provisions contained in the **Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005** and the requirements of the **Panchayat Building Rules, 2011** and to consider as to whether such permission can be granted to the petitioners to construct a prayer hall/church and/or conduct prayers WP(C)No.7828 of 2014 20 and other religious activities in the premises in question. The third respondent shall pass orders on the matter after hearing the petitioners and any other affected parties, including respondents 13 to 18. While passing fresh orders, the third respondent shall also have due regard to the decisions of this Court in **Noorul Islam Samskarika Sangam** (supra) and **Seventh Day Adventist Church** (supra). The writ petition is disposed of as above. Sd/- **GOPINATH P., JUDGE** rkj WP(C)No.7828 of 2014 21 ## **`APPENDIX OF WP(C) 7828/2014`** - **`PETITIONER EXHIBITS EXHIBIT P1 : THE TRUE PHOTOCOPY OF THE ORDER DATED 06.11.2008 OF THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS`** - **`EXHIBIT P2 : THE TRUE PHOTOCOPY OF THE FORWARDING LETTER OF THE 12TH RESPONDENT DATED 20.04.2009 TOGETHER WITH ATTACHMENT`** - **`EXHIBIT P3 : THE TRUE PHOTOCOPY OF THE MASS PETITION DATED 16.02.2011`** - **`EXHIBIT P4 : THE TRUE PHOTOCOPY OF THE REPORT OF THE 6TH RESPONDENT DATED NIL`** - **`EXHIBIT P5 : THE TRUE PHOTOCOPY OF THE REPORT OF THE 5TH RESPONDENT DATED 02.09.2011`** - **`EXHIBIT P6 : THE TRUE PHOTOCOPY OF THE REPORT OF THE 7TH RESPONDENT DATED 07.09.2012`** - **`EXHIBIT P7 : THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 25.01.2012 OF THE 9TH RESPONDENT`** - **`EXHIBIT P8 : THE TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 16.05.2012 OF THE 11TH RESPONDENT`** - **`EXHIBIT P9 : THE TRUE PHOTOCOPY OF THE PROCEEDINGS NO.S11-31462/2009 DATED 07.07.2012 OF THE 3RD RESPONDENT`** - **`EXHIBIT P10 : THE TRUE PHOTOCOPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT`** - **`EXHIBIT P11 : THE TRUE COPY OF THE ORDER BEARING NO.G.O.(ORDINARY) 1862/2013 HOME DATED 04.07.2013 OF THE 2ND RESPONDENT`**