Right To Construct A Temple On Private Property Protected U/Articles 25 & 26, It Can't Offend Religious Sensibilities Of Others: Allahabad HC

The Allahabad High Court last week observed that the right to construct a Temple on private property is protected by Articles 25 and 26 of the Constitution and such construction cannot offend the religious sensibilities of any other community.

The bench of Justice Salil Kumar Rai and Justice Surendra Singh-I also said that the mere fact that a Masjid exists nearby the plot on which the Temple is proposed to be built, by itself, cannot raise an apprehension that communal peace or public order would be disturbed if a Temple is built on the private plot.

The Court made these observations while disposing of a writ plea filed by a well-known Hindu Saint Acharya Pramod Krishnam Ji Maharaj challenging the orders of the District Magistrate, Sambhal passed in 2016 and 2017 restraining him from making any constructions or laying the foundation of the Temple on his private plots without obtaining permission from the district administration.

Essentially, the Petitioner (Acharya Pramod Krishnam Ji Maharaj) had purchased certain properties in the village and had planned to lay the foundation of the Kalki Dham Temple in the village (Achora Kambo in Sambhal district) in November 2016.

However, acting on a representation made by the National President of the Muslim Kisan Union that the foundation-laying ceremony of the Temple would be opposed by the Muslims, the District Magistrate Concerned restrained the petitioner from making any construction.

Thereafter, an application of the petitioner to recall the 2016 order was dismissed by the DM concerned in October 2017 and the said order was upheld mainly on the following grounds:

- Sambhal is a communally sensitive area and the construction of the proposed Temple is being opposed by a religious group which may disturb the law and order in the area and therefore, the petitioner cannot claim Freedom of Religion under Articles 25 and 26 of the Constitution of India.

- The plots on which the Temple is to be constructed are near State lands (Plot Nos. 283, 451 and 452) because of which the State land would be encroached by the people who would come for Darshan at the Temple and would require space to park their vehicles.

- A masjid exists within 144 meters from the plots on which the Temple is to be built and certain religious leaders had informed the administration that the construction of the Temple was a new tradition and would be opposed by their community.

- A historical Kalki Mandir already exists at a distance of 20 Kms from the village.

- The map of the Temple has not been sanctioned by any regulatory authority and the Zila Panchayat, Sambhal or the Nagar Palika have not framed any bye-laws to regulate the sanctioning of maps for any proposed construction.

Challenging the orders of the DM concerned, the petitioner moved the High Court wherein his counsel objected to the above-said reasonings given by the DM concerned in his order. His counsel further argued that the order of the DM was based on presumptions and there was no evidence in support of the facts and reasons stated in the said order to restrain the petitioner from constructing a Temple on the plot. 

At the outset, the Court noted that there was no dispute regarding the title of the petitioner over the plots on which the proposed Temple is to be constructed and that it was not the case of the administration or of any religious group that the religious beliefs of the petitioner insult the religious or personal sensitivities of any person or community.

In this backdrop, the Court said that there was nothing on record to show that any substantial section of the Muslim community was opposed to the construction of the Temple and even if it be so, the Court added, mere construction of a Temple by any person on his private property cannot offend the religious sensibilities of any other community.

"The right of the petitioner to construct a Temple on his private property is protected by Articles 25 and 26 of the Constitution and there is no evidence that the construction would have disturbed public order or was against morality or would be inimical to public health. As noted earlier, there is nothing on record to show that the petitioner by constructing a Temple intended to insult any other religious community and mere objection by a few persons belonging to other religions cannot be a ground to restrict the rights guaranteed under Articles 25 and 26 of the Constitution of India," the Court further remarked.

Significantly, the Court also said that the communal disturbance, if any, after the construction of the temple, has to be controlled by the district administration exercising its powers under the CrPC including the powers under Section 144 of the CrPC as it is the duty of the administration to protect the fundamental rights of the citizen, in a manner which is not prohibited by law.

The Court further noted that there is no evidence on record to indicate that public order would be disturbed if the temple is constructed on the plots of the petitioner. The Court added that apparently, the District Magistrate had considered "irrelevant factors" to reject the application of the petitioner and restrain the petitioner from constructing a temple over his plots.

Similarly, the Court also rejected the other reasons for the order and directed the Zila Panchayat to pass appropriate orders on the map submitted by the petitioner strictly in accordance with its bye-laws and without being persuaded by the observations of the District Magistrate made in his October 2017 order. With this, the plea was disposed of.

Case title - Acharya Pramod Krishnam Ji Maharaj vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 261 [WRIT - C No. - 13703 of 2018]

Case Citation: 2023 LiveLaw (AB) 261

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