Setting Up Of Religious Place By One Community Can't Be Stopped Merely Due To Opposition By Another Community, Assumption Of Disharmony: Kerala HC

“Merely because one community opposes the setting up of a religious place by another community, it cannot be assumed that there will be disharmony or breach of peace. This cannot be a reason at all, more particularly when the basis of the said apprehension is not revealed from any acceptable material except the anticipated ones which the district administration is duty bound to avert.”

Background of the Case

The petitioner owns a building which has been used as a prayer hall since 2004. The petitioner submitted that no Juma prayer was conducted, no amplifiers or speakers were used, and the prayer hall was only offering prayers by the religious people. The petitioner had applied for a permit for changing the roof of the building which was given permit on 25.11.2014. Pursuant to this, petitioner changed the roof. A notice was issued to the petitioner on 11.05.2015 from the Panchayat Secretary saying that neighbours have complained that illegal construction was going on there and asked him to stop the construction. The petitioner replied to it saying that no illegal construction was taking place.

Apprehending demolition of the roof, petitioner filed a writ before the High Court challenging the notice issued by the neighbours. During the pendency of the writ, the Revenue Divisional Officer issued a notice for conducting a hearing to resolve the complaint from local residents. On 29.01.2016, the RDO directed to stop the functioning of the prayer hall as it will cause communal disharmony.

The order of the RDO was challenged by the petitioner before the High Court. The High Court passed an interim order allowing the use of the building as a prayer hall but on condition that the petitioner shall not use any loudspeaker, conduct Juma prayer or use it as a permanent place of worship. The Writ was disposed of with a direction to the Collector to finally decide the matter after considering the reports from police and revenue authorities.

The Collector refused to issue an NOC saying that there were objections from members of other communities in the conduct of prayer hall. After this, Panchayat issued a letter directing the petitioner to stop the prayer hall in light of the order of the Collector.

The petitioner is challenging both the order of the Collector and Panchayat through the instant writ petition.

Arguments Advanced by the Parties

The petitioner submitted before the Court that there is no single instance where the police had interfered in the matter of public order due to the establishment of a place of religious worship since 2004.

One of the residents argued in favour of the NOC saying that the petitioner was operating the building as a mosque without a valid NOC. He said that during pandemic, unknown individuals were visiting the site.

The Reports from District Police Chief and Tahsildar showed that 'Niskaram' and 'Bank Vili' activities were happening at the Sunni Centre. The Report contains concerns about contamination of water sources affecting nearby homes inhabited by members of Hindu community. The reports says that even some members of Muslim community are opposed to the establishment of the mosque in this location as there are already 4 mosques in the one-kilometer radius. The report said that converting the Sunni Centre to a mosque could undermine communal harmony in the area.

The Additional District Magistrate's report says that the building was modified for religious activities such as a water tank and washroom.

All these reports highlighted the opposition raised by nearby residents predominantly belonging to Hindu community.

Fundamental Right To Practice and Profess Faith

The Court observed that the citizens possess a fundamental right to practice and profess their faith and the establishment of a religious place should not be curtailed merely due to opposition from other groups.

“Secularism and religious freedoms are cornerstones of Indian Constitution”, the Court observed.

The Court said that the administration should safeguard all fundamental rights including the petitioner's right to utiise his property lawfully.

Public Order and 'Law and Order'

The Court said that public order and 'law and order' are distinct concepts. Public order relates to collective social harmony. 'Law and Order' relates to individual disputes and conflicts over tangible interests.

The Court observed that conflicts between different faith can disrupt public order and threaten the secular fabric. The State should maintain a delicate balance between safeguarding religious freedom and upholding the tenet of secularism when issuing guidelines in such matters.

The Court observed that the collector while rejecting the NOC did not appreciate the difference between public order and 'law and order'.

The Court asked the Collector to reconsider the matter and issue orders within 3 months. The Court directed the petitioner to not conduct any activities in the nature of a religious place in the meanwhile till permission is given to function as a religious place.

Counsel for the Petitioner: Advocates S. Sreekumar (Sr.), P. Martin Jose, P. Prijith, Thomas P. Kuruvilla, R. Githesh, Ajay Ben Jose, Manjunath Menon, Harikrishnan S.

Counsel for the Respondents: Advocates Devishri R. (GP), Vinod Singh Cheriyan, P. V. Anoop, T. M. Khalid, K. P. Susmitha, Phijo Pradeep Philip, K. V. Sreeraj, T. Sethumadhavan (Sr.), M. P. Priyeshkumar

Case No: WP(C) 13544 of 2020

Case Title: K. T. Mujeeb v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 722