Seventh Day Adventist Church, North Kerala Section of Seventh Day Adventist (Section under the Southwest India Union Section), Evergreen Line, Moospet Road, Thrissur v State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939** **WP(C).No. 2836 of 2018** ## **PETITIONERS:** ## **1. SEVENTH DAY ADVENTIST CHURCH,** - **NORTH KERALA SECTION OF SEVENTH DAY ADVENTIST, (SECTION UNDER THE SOUTHWEST INDIA UNION SECTION), EVERGREEN LINE, MOOSPET ROAD,TRISSUR, REPRESENTED BY ITS SECRETARY, PASTOR V.MATHAI.** **2. PASTOR T.K.AJITH, CHURCH PASTOR, SEVENTH DAY ADVENTIST HIGHER SECONDARY SCHOOL, CHAMMANY ROAD, KALOOR-KADAVANTHARA ROAD, KALOOR, ERNAKULAM,PIN-682 017.** **BY ADVS.SRI.T.K.VIPINDAS SRI.K.V.SREE VINAYAKAN** ## **RESPONDENT(S):** ## **1. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY,HOME DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN-690 001.** **2. THE DISTRICT COLLECTOR, COLLECTORATE.P.O, ERNAKULAM,PIN-682 030.** **3. THE SUB COLLECTOR, FORT KOCHI, PIN-682 001.** **4. THE DISTRICT POLICE CHIEF, ERNAKULAM, PIN-682 031.** **5. THE SECRETARY, CORPORATION OF COCHIN,KOCHI,PIN-682 001.** ## **6. SHAJININAN,** **PULLALIYACKAL HOUSE,MOOLAVATTOM.P.O, KOTTAYAM,PIN-686 012.** **R1 TO R4 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER** **R5 BY SRI.SHIBU JOSEPH,SC,** **SRI.JOSEPH K.L., SC,** **R6 BY ADVS. SRI.C.S.MANILAL** **SRI.S.NIDHEESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 2836 of 2018 (D)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE EXTRACT OF REGISTER OF APPLICATION FOR CONSTRUCTION OBTAINED FROM THE OFFICE OF THE 5TH RESPONDENT** **EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 15/07/2010 IN O.S.NO.1173/2014 BEFORE THE ADDITIONAL MUNSIFF'S COURT-I, ERNAKULAM** **EXHIBIT P3 TRUE COPY OF THE FIRST INFORMATION REPORT IN** **EXHIBIT P4 TRUE COPY OF THE COPY OF THE ABOVE ORDER DATED 01/07/2018 BEARING NO.DCEKM/3055/2017/M8 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION ISSUED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT DATED 2/2/2018** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R6(a) TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)NO.217/05/HOME DATED 25/7/2005.** **EXHIBIT R6(b) TRUE COPY OF THE LETTER OF THE SCHOOL DATED 29/12/2003.** **/TRUE COPY/** **P.S.TO JUDGE** **sts 7/3/2018** **CR** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C) No.2836 of 2018** ## **----------------------------------------------Dated this the 2[nd] day of March, 2018** ## **J U D G M E N T** This writ petition is filed by the petitioners seeking the following reliefs: - (i) to call for the records leading to Exhibit P4 order and quash the same by issuance of a writ of certiorari. - (ii) to issue a declaration the Manual of Guidelines to Prevent and Control Communal Disturbances and to promote Communal Harmony, 2005, is formulated as G.O(P) No.217/2005/Home dated 25.07.2005 does not have any force of law. - (iii) to issue a declaration that the 2[nd] respondent cannot curtail or infringe the conducting of worship peacefully by the members of the Seventh Day Adventist Church in the property owned and managed by the 1[st] petitioner. - (iv) to issue such other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case. W.P.(C) No. 2836 of 2018 2 2. Material facts for the disposal of the writ petition are as follows; since year 1970 onwards, the believers belonging to the Christian sect of the Seventh Day Adventist Church in Ernakulam are conducting prayers and worship on all Saturdays between 9.30 am and 1 p.m. in a peaceful manner causing no disturbance of any form whatsoever. The prayers and worships are conducted in the premises of the Seventh Day Adventist Higher Secondary School, Kaloor, which is owned and managed by the 1[st] petitioner herein. First petitioner received an order dated 7.1.2018 passed by the 2[nd] respondent directing respondents 3 to 5 to take measures to stop the alleged unauthorized construction of the chapel and to ensure that, no unauthorized worship is conducted at the place. According to the petitioners, the 2[nd] respondent is not having any authority of law to pass Ext.P4 order or any order of such nature and insist that, the petitioners will have to seek prior W.P.(C) No. 2836 of 2018 3 approval from the District Administration for construction. The legal contention advanced by the petitioners is that, such power can only derive from the express provision of law in the form of an enactment duly promulgated. The 2[nd] respondent can only derive his power only from such express provision of law. The construction of any building within the municipal limits is governed by the provisions of the Kerala Municipality Building Rules, 1999 and the 2[nd] respondent cannot usurp any powers of the municipal authority unless specifically empowered by any statute. Therefore, due to Ext.P4 order, the valuable rights of the petitioners are transgressed as the 2[nd] respondent has directed respondents 3 to 5 to ensure that, there is no worship conducted by the members of the petitioners. Therefore, Ext.P4 is highly illegal and liable to be interfered with by this court. 3. A counter affidavit is filed by the 6[th] respondent W.P.(C) No. 2836 of 2018 4 refuting the allegations and claims and demands raised by the petitioners. It is primarily contended that, petitioners have no locus standi to represent the church to file the writ petition. The competent person to file the writ petition on behalf of the church is Y. Selvamani, Chairman South West India Union of Seventh Day Adventist Board and as such the writ petition is liable to be dismissed. 4. Sixth respondent is a member of the Seventh Day Adventist Church and his father was a Pastor. The respondent is not a stranger nor a wayfarer as far the affairs of the church is concerned. The issue in question is directly affecting the members of the congregation and hence having sufficient locus standi in the above matter. It is also contended that, there was no such church or prayer hall for the so called church as is claimed by the petitioners. There is no such prayer for the church in existence even as on today. Therefore, the petitioners and W.P.(C) No. 2836 of 2018 5 other persons started to use the hall and auditorium of the school for the use of prayers. There was considerable objection by the school authority in making use of the school building for prayer purposes and this had been informed to the petitioners and others in writing. Despite the same, petitioners and others took law into their hand and opened the school compound for the said purpose. There are two groups of persons fighting each other for their dominance as far as the activities are concerned. The rival group of the petitioners have set up a separate portion of the church property for prayer and no permission or licence has been obtained for such construction. The said construction is half way and the same is not legally constructed as per the approval and permission of the Corporation. While the said construction was going on, the group headed by the petitioners have committed mischief in respect of the building by destroying some of the W.P.(C) No. 2836 of 2018 6 constructions made, which led to the registration of a crime and also filing a civil case, which are referred to in the writ petition itself. According to the 6[th] respondent, it is to salvage the situation that, he has filed a complaint before the District Collector, which led to passing of Ext.P4 order. It is the contention of the 6[th] respondent that, Ext.P4 order is passed taking into account the stipulations contained under Ext.R6(a) Government Order bearing No.217/05/Home dated 25.7.2005. It is also submitted, the legal contention raised by the petitioners that, Ext.R6(a) Government Order having no force of law is absolutely incorrect and unsustainable. Ext.R6(a) is based on a Cabinet decision and it was a reissuance of two other earlier orders referred to therein. The exercise of the powers by the Government was based on Article 162 of the Constitution of India and the order in question is an example of executive power of the State Government which is co-extensive of that of the legislative W.P.(C) No. 2836 of 2018 7 power. It is also stated that, the power of the executive is co-extensive with that of the legislative power by virtue of entry No.1 List II and entry No.2 List III of Seventh schedule, and therefore, State Government is competent to issue Ext.R6(a) order. 5. Petitioners have not established or constructed any church with the prior approval of the Collector or the Municipal authorities. Petitioners cannot also conduct prayer regularly in a school campus or auditorium, which is not a place of worship. That apart it is contended that, the right to form an association or meeting or the right to religious activities and prayers are subject to reasonable restriction contained under Articles 19(3) and 25 of the Constitution of India and therefore, the rights so claimed by the petitioners are rights not of an absolute nature. The right is subject to public order, decency, morality and also the regulatory regime of law. Therefore, according to the W.P.(C) No. 2836 of 2018 8 6[th] respondent, petitioners have not made out any case justifying interference of this court under Article 226 of the Constitution of India. 6. I have heard learned counsel for petitioners, learned Government Pleader, learned counsel appearing for the 6[th] respondent, in extenso, and perused the pleadings and documents on record. 7. Apparently the contention advanced by the petitioners is that, the Manual of Guidelines viz., Ext.R6(a) issued by the State Government is not having any legal force since the same is issued on the basis of any enabling power under any statute promulgated by the State Government for that purpose. It is also the contention of the petitioners that, Ext.P4 order passed by the 2[nd] respondent is interfering with the rights enjoyed by the petitioners, being a religious denomination, under Article 26 of the Constitution of India. It is also contended that, the W.P.(C) No. 2836 of 2018 9 congregation of the petitioners are entitled to pray anywhere and there cannot be any restriction much less, one created by Ext.R6(a) Manual of Guidelines issued by the State Government. Therefore, the sum and substance of the contention advanced by the petitioner is that, Ext.R6(a) Government Order is in derogation of the rights conferred under Articles 25 and 26 of the Constitution of India. 8. Learned counsel for petitioners heavily relied on the judgment of the Apex Court in **G.J.Fernandez v. State of Mysore and Others** [AIR 1967 SC 1753] in order to canvass the proposition that, there is no source of power for the State Government to issue Ext.R6(a) guidelines. However, in my considered opinion, the question considered therein was whether a member of public has any right to challenge violation of an executive instruction contained under Mysore PWD Code under Article 226, which has no bearing at all to the issue on hand. So also, learned W.P.(C) No. 2836 of 2018 10 counsel for 6[th] respondent has invited my attention to the judgment of the Apex Court in **Surinder Singh v. Cenral Government and Others** [(1986)4 SCC 667], wherein it is held that, where authority is empowered by statute to exercise power subject to any rules but rules not made, authority has jurisdiction to exercise that power by issuing administrative instructions, subject to any statutory provisions to the contrary. In this context a reference to Article 162 of the Constitution of India would be worthwhile, which read thus: “162. **Extent of executive power of State** .-Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, W.P.(C) No. 2836 of 2018 11 and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.” Therefore, it is categoric and clear that, the State Government is vested with ample powers to issue the Guidelines in the nature of Ext.R6(a), drawing inspiration and power from entries 1 and 32 of List II and entries 2 and 28 of List III of Seventh Schedule. 9. Learned counsel for 6[th] respondent has a case that, since the particular notification under challenge is not produced by the petitioners, the writ petition is to be dismissed on that sole ground, and has relied upon the judgment of the Apex Court in **Surinder Singh** supra. True in the said judgment, it is held that, normally, whenever an order of Government or some authority is impugned before the High Court under Article 226, the copy of the order must be produced before it and in the absence of the W.P.(C) No. 2836 of 2018 12 impugned order, it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is further held thereunder that, it is improper to quash an order which is not produced before the High Court in a proceeding under Article 226. Learned counsel has also relied on a judgment of this court in **A.X Varghese v. Union of India** [1991(1) KLT 635], wherein also the same question is considered. However, fact remains, the 6[th] respondent has produced the said order, marked as Ext.R6(a). Therefore, whatever rigour remains on the basis of the aforequoted judgements, it is no more available to the 6[th] respondent consequent to the production of the same. 10. On the other hand, learned Government Pleader as well as counsel appearing for the 6[th] respondent contended that, Ext.R6(a) Manual of Guidelines is issued by the State Government in accordance with the power conferred under Article 162 of the Constitution of India, and there is no W.P.(C) No. 2836 of 2018 13 other law in force contrary in effect, disabling the State Government to issue the Manual of Guidelines, and the same is issued on the basis of the entries specified above under List II and III of Schedule 7 of the Constitution of India. Learned Government Pleader also pointed out that, petitioners have submitted an application before the 2[nd] respondent on 2.3.2018 seeking appropriate permission in order to conduct the prayers in the premises. However, I am of the considered opinion, there is sufficient power vested as per the entries specified above in the 7[th] Schedule to the State Government to issue such orders. 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 W.P.(C) No. 2836 of 2018 14 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 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 W.P.(C) No. 2836 of 2018 15 ## 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. 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 W.P.(C) No. 2836 of 2018 16 Town Planning Department or Local Self Government, as the case may be, (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 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 sub-clause (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 W.P.(C) No. 2836 of 2018 17 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 precipitate communal tension or law and order situation and before sanctioning requests for construction of new places of 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 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 Article 162 of the Constitution of India. Even though learned counsel for petitioners has heavily relied upon Articles 25 and 26 of the Constitution of India, the rights enumerated thereunder can W.P.(C) No. 2836 of 2018 18 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 Articles 25 and 26 of Constitution of India can only be subordinate to the peaceful co-existence 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 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 W.P.(C) No. 2836 of 2018 19 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-rule 6B of rule 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 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 W.P.(C) No. 2836 of 2018 20 issued only after the receipt of the concurrence by the District Collector.” 13. Even though learned counsel for petitioner has a case that, it applies only to the security zone prescribed under sub-section 6B, I am of the considered opinion that, the proviso is constituted for the very purpose of ensuring verification by the District Collector in respect of all development and re-development purposes. So far as the developments carried out for and on behalf of religious institutions are concerned, sub-section 6B takes care of any land within the security zone in respect of religions or otherwise, which read thus: “Rule 5(6B): In the case of an application for development or redevelopment of any land within the Security Zone, the Secretary shall consult the District Collector concerned before permission is granted. The District Collector, after getting specific recommendation from the W.P.(C) No. 2836 of 2018 21 Director General of Police, shall furnish his reply. The objection if any raised and/or restriction and/or regulation if any suggested by the District Collector shall be complied by the Secretary while issuing the permit. 14. As is noticeable, proviso is added and as an exception to the general rule contained under rule 5 and not specifically to sub-section 6. Therefore, it is categoric and clear that, the development or re-development can be done by the religious institutions only in accordance with the provisions of the Kerala Municipality Building Rules, 1999 specified above and in accordance with the Manual of Guidelines. Moreover, in this case, even though petitioners have a case that, petitioners are not liable to make any application seeking permission from the District Administration, as pointed out by the learned Government Pleader, petitioners have submitted an application on 2.3.2018 before the 2[nd] respondent seeking permission to W.P.(C) No. 2836 of 2018 22 carry on the religious activities in the premises in question, which thus means petitioners have conceded to the provisions of law in force. 15. Taking into account all these factual and legal circumstances, in my considered opinion, petitioners have not made out any case of arbitrariness, illegality or other legal infirmities justifying interference of this court under Article 226 of the Constitution of India, to Ext.P4 order passed by the 2[nd] respondent. Therefore, the writ petition has no sustenance. However, in view of the application submitted by the petitioners, there will be a direction to the 2[nd] respondent to consider the same and take a decision at the earliest possible and at any rate within a month from the date of receipt of a copy of this judgment. Till orders are passed accordingly, the interim order granted by this court, permitting petitioners to conduct prayers on Saturdays will continue to be in force. W.P.(C) No. 2836 of 2018 23 Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 5.3.2018