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Judgment
Shaji P. Chaly, J.
This is a Public Interest Litigation filed by two residents within the limits of the Clappana Grama Panchayat, Karunagappally Taluk, Kollam District,
seeking a direction to respondents 1 to 3 ie., the District Collector, Kollam, Clappana Grama Panchayat, Kollam District and the Circle Inspector of
Police, Oachira Police Station, to consider and dispose of Exts.P3 to P5 complaints filed by the petitioners and other residents within the limits of the
Clappana Grama Panchayat and also for a further direction to the party respondents i.e., respondent Nos. 4 and 5 to construct the mosque only after
complying with the prescriptions contained in Ext. P10 Manual of Guidelines issued by the Home Secretary, Government of India dated 23rd June,
2002 to promote communal harmony, by which the State Governments were directed to take appropriate steps to avoid any instance of communal
violence, and Rule 7(8A) of the Kerala Panchayat Building Rules, 2011 ('Rules, 2011' for short)
Brief material facts for the disposal of the writ petition are as follows:
The first petitioner also claims to be the Taluk Secretary of the Hindu Ayikya Vedi, Karunagappally. The case of the petitioners are that respondents
Nos. 4 and 5 are constructing a mosque in a property situated in the midst of a densely populated area, with population consisting of mostly Hindus
with a specific intention to create communal tension and disharmony and the Panchayat has granted permission for construction, which was started
without any permission and without complying with the provisions of law and ignoring the protest of the residents of the locality.
According to the petitioners, the 5th respondent namely one Iqbal S.M is the President of the Clappana Grama Panchayat and a member of the
SDPI, a political wing of the Popular Front of India, a militant organisation. Various other contentions in regard to the same are raised, which we feel,
are insignificant to decide the issues in the writ petition. It is also the case of the petitioners that immediately on finding that respondents 4 and 5 are
constructing a building to establish a mosque, the petitioners and other residents of the locality have filed complaints before the Panchayat, the
Tahsildar as well as the District Collector basically stating that respondents 4 and 5 are constructing the mosque without the permission from the
Grama Panchayat and without following the legal prescriptions before starting construction of mosque which is a place of worship.
It is also submitted that, on enquiry, the petitioners were informed that no permission was granted for the construction of the mosque in the above
said property and in spite of the complaints filed by the petitioners, the Panchayat has not taken any action to stop the illegal construction activities. It
is the further contention of the petitioners that by virtue of the Manual of Guidelines issued by the Government of India, in order to carry out any
construction of the religious places, a prior approval by the appropriate authority or statutory body is required. That apart, it is stated that as per Rule
7(8A) of the Rules, 2011, for the purpose of construction or reconstruction of a building for religious purpose of worship, the approval or clearance or
permission or concurrence, as the case may be, of the District Collector is required. It is also submitted that the Union Home Secretary has written a
letter to the Chief Secretaries of States reviewing the guidelines and directing the State Governments to strictly implement the guidelines at various
levels.
The Clappana Grama Panchayat has filed a statement refuting the allegations and the contentions of the petitioners. It is also pointed out by the
Panchayat that it has received an online application for the construction of a building in Group F category occupancy along with a detailed building plan
for the construction of a mosque building by demolishing the existing muslim Thycavu Building bearing No. CP-X/228 with a total floor area of 193 sq.
metres in re-Survey No. 751/12 of Clappana Village having an extent of 4.27 Ares by the 4th respondent namely Ishahinsha, a resident within the
limits of the Clappana Grama Panchayat. Since the proposed building is for a religious purpose, the Secretary of the Grama Panchayat brought the
matter before the panchayat Committee held on 20.01.2021 for consideration and the Panchayat Committee adopted resolution No.9(1) to sent the
matter for the consideration of the District Collector, Kollam, since complaints were received from the public stating that the mosque authorities may
start a burial ground along with the new mosque.
It is also pointed out that other complaints were also submitted before the District Collector apprehending starting of burial ground along with the
mosque and hence, the Panchayat committee forwarded the application to the District Collector, Kollam for a 'No Objection Certificate'. It is also
stated that the 4th respondent submitted Ext. P8 declaration undertaking that he has no intention to start the burial ground along with the mosque.
Anyhow, the District Collector, Kollam, by pointing out G.O.(P) No. 19/2021 dated 14.02.2021, returned the application for NOC to the Panchayat.
Thereafter, the Panchayat committee held on 14.05.2021 directed the Secretary to consider the application on the basis of the new, Kerala Panchayat
Building Rules, 2019 ('Rules, 2019"" for short), since the application for building permit was submitted after 01.10.2020. Accordingly, the Assistant
Engineer of the Local Self Government Department inspected the site and recommended issuance of the building permit to the proposed mosque
building. Considering the application, and the report of the Engineer, Ext. P7, building permit was issued, and the site plan was approved, which is
produced along with Exhibit P7 permit.
That apart, it is pointed out that the grant of building permit is an appealable order under Section 276 of the Kerala Panchayat Raj Act, 1994 and if
any person is aggrieved consequent to the approval of the site plan and grant of building permit, he/she can prefer a statutory appeal to the Tribunal
for Local Self Government Institutions and instead, the petitioners have approached this Court without exhausting the statutory remedy available to
them; and further no special reasons are pleaded to bypass the statutory and alternative remedy available to them.
That apart, it is contended that since the Kerala Panchayat Building Rules has come into force on and with effect from 08.11.2019, the provisions
of the Rules, 2011 is no more in existence and therefore, Rule 7 (8A) of the Rules, 2011 has no force of law. That apart, it is pointed out that as per
the Rules, 2019, the Secretary is competent to issue the building permit and there is no need to obtain consent from the District Collector as stipulated
in Rules, 2011. It is also submitted that the permit was granted in accordance with Rule 25 of the Rules, 2019, whereby the Secretary of the Grama
Panchayat is authorised to grant the building permit under Group F for any building, which is not more than 200 sq. metres built up area
accommodating the uses under Groups C, D and E.
In the case on hand, the building permit was granted to the 4th respondent for construction of a building having a plinth area of 196.04 sq. metres
and therefore, it comes under Group F category, since the total plinth area of the building is below 200 sq. metres.
Respondent Nos. 4 and 5 have also filed a detailed counter affidavit in line with the submission made by the Secretary of the Grama Panchayat in
its statement, and from Ext. R4(b), it is evident that the 4th respondent is the President of the registered Wakf namely Rahmaniya Juma Masjid and
the building No. X/228 belongs to Muslim Taykkavu, Perumanthazha, Varavila.
The petitioners have filed a reply to the counter affidavit filed by the Grama Panchayat as well as the party respondents reiterating the stand
adopted in the writ petition.
We have heard, Sri. R. Krishnaraj for the petitioners, Sri. Tek Chand, learned Senior Government Pleader for the official respondents, Sri. Siju
Kamalasanan for the Clappana Grama Panchayat and Sri. K. B. Arun Kumar for the party respondents, and perused the pleadings and materials on
record.
The question to be considered is whether, there is any illegality in the approval of the plan submitted by the 4th respondent and granting building
permit for the construction of a mosque in the property in question.
The discussion of facts made above would make it clear that even the petitioners admitted that the building permit was issued to the 4th
respondent for the construction of a building to establish a mosque. Ext. P7 building permit clearly specifies that the construction undertaken by the 4th
respondent is less than 200 sq. metres and to be precise, 196.04 sq. metres. By virtue of the Rules, 2019 constituted as per the provisions of the
Kerala Panchayat Raj Act, 1994, in order to carry out the construction of any building, in terms of the provisions of the Rules, a permit is required
from the Secretary of the concerned Local Self Government Institutions; the site plan is also to be approved, and the construction can be carried out
only on granting permission by the Secretary of the Local Self Government Institutions and in accordance with the provisions of the Rules.
In the instant case, Rules, 2019 is applicable and it is clear from the building permit and the submission made by the Secretary of the Grama
Panchayat that the building was constructed after securing approval of the site and the building permit from the Grama Panchayat. As per Rule 25 of
the Rules, 2019, buildings are classified in accordance with the occupancy of the building. Group A1 is residential; Group A2 Lodging Houses &
Special Residential; Group B Educational; Group C Medical/Hospital; Group D Assembly; Group E Office; Group F Mercantile/Commercial and so
on.
The Secretary of the Grama Panchayat has issued a building permit in the instant case for the construction of a Group F building, for the reason
that, a permit is required for construction of an assembly building under Group D, only if the built-up area is exceeding 200 sq. metres where people
congregate or gather for amusement, recreation, social, religious, patriotic, political, civil etc. But, it is significant to note that in a building with not more
than 200 sq. metres built up area accommodating the uses under Groups C, D, E and H, shall be included in Group F category as provided under Rule
25 of the Rules, 2019; and that is why even though the building is in the nature of Group D classification, it is provided with the building permit as a
mercantile or commercial building under Group F. Therefore, it is quite evident and clear that there is no manner of illegality in granting the building
permit by the Secretary of the Grama Panchayat.
Yet another contention advanced is that as provided under Rule 7(8A) of the Rules, 2011, in the case of construction of a new building or
reconstruction for religious purposes or worship, prior approval or clearance or permission or concurrence, as the case may be, of the District
Collector concerned shall be obtained and the conditions stipulated in the Manual of Guidelines to prevent and control the communal disturbances and
to permit communal harmony which is in force, was to be complied with.
However, as we have pointed out earlier, Rules, 2011 is replaced by the Rules, 2019, wherein there is no restriction like the one contained under
the Rules 7(8A)
In that view of the matter, the said contention advanced by the petitioners can never be sustained under law and facts. The third contention
advanced is that as per the direction of the Government of India, the State Government has issued G.O. (P) No. 217/05/Home dated 25th July, 2005 to
prevent and control the communal disturbances and to promote communal harmony, in continuation of the earlier guidelines existing. As per para 23 of
the aforesaid guidelines, any construction of a religious place should be made, only with the prior approval of the District authorities and at the
earmarked place; cases of construction of unauthorised religious places should be dealt with severely under existing laws; and negligence on the part
of the District Administration in implementing the above direction be seriously viewed and the guilty dealt with.
Further, clause 23(i) specifies that 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; the addition or expansion should not, in any way, cause any inconvenience to the public and obstruct traffic and should not be
an impediment to the future expansion of roads and other public amenities; and any addition or expansion can be undertaken only observing the
building Rules and with the prior permission of Town Planning Department or Local Self Government, as the case may be.
Clause 23(ii) stipulates that 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 the same; and in such cases, the
District Administration may take recourse to shift the places of worship after arriving at a consensus with the parties concerned.
In that regard, clause 31 of the Manual coming under Group H therein dealing with Administrative measures is relevant, which specifies that
communally sensitive places should be identified in the riot-prone areas for making necessary administrative arrangements; man power requirements
for those areas should be realistically assessed; it should be ensured that all vacancies are filled up and manned; police stations/Posts should be set up
in all sensitive/trouble prone areas; and those administrative measures should be constantly reviewed. Consequently, other directions are contained in
the subsequent provisions of the manual of the Guidelines to ensure peace and harmony in the community.
Anyhow, in accordance with the introduction of the Rules, 2019, the State Government amended the Manual of Guidelines to prevent and control
the communal disturbances and to permit the communal harmony as per G.O.(P) No.19/2021/Home dated 14.02.2021. In order to have a proper
appreciation of the amended Manual of Guidelines, it is better that the same is extracted:
“GOVERNMENT OF KERALA
Abstract
Home Department-Manual of Guidelines to prevent and control Communal
Disturbances and to promote communal harmony Amendment Orders issued.
â€"--------------------------------------------------------------------------------------------
HOME (SS A) DEPARTMENT
G.0.(P)No.19/2021/Home                 Dated,Thiruvananthapuram, 14/02/2021
â€"--------------------------------------------------------------------------------------------
Read:- 1) G.O(P) No. 187/01/Home dated 9.10.2001
2) G.O(P) No. 9/02/Home dated 16.1.2002
3) GO(P) No. 217/05/Home dated 25/07/2005.
ORDER
In the G.O. read as 3rd paper above, a Manual of Guidelines to prevent and control communal Disturbances and to promote Communal Harmony was
re-issued by the Government. Now Government are pleased to amend the Manual of Guidelines with modification in Para 23 as detailed below:
Any construction of religious place should be made only with prior approval of the concerned Local Self Government Authority and at the
earmarked place. Cases of construction of unauthorised religious places should be dealt with severely under existing laws. Negligence on the part of
the Local Self Government Authorities in implementing this direction should be seriously viewed and the guilty dealt with.
(a)(1) Renovation of existing places of worship can be undertaken after informing the matter to the concerned Local Self Government
Authority. Any addition or expansion to the existing structure should be done only with the previous permission and concurrence of the Local Self
Government Authority. 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 Town Planning Department or Local Self Government, as the case may be ;
(i) Any new construction of a place of worship shall be done only with the clearance of the concerned Local Self Government Authority. 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 Local Self Government Authorities should ensure this. In such cases
the Local Self Government Authorities may take recourse to shift the places of worship after arriving at a consensus with the parties concerned.
The Manual of Guidelines to prevent and control communal Disturbances and to promote Communal Harmony shall stand modified to the above
extent.
By Order of the Governor,
T.K. JOSE
Additional Chief Secretary to Governmentâ€
On an analysis of the amended Manual as above, it is clear that, as is mandated under the Manual of Guidelines dated 25th July, 2005, the
permission of the District Administration is not required, and now the sole requirement is the prior approval of the concerned Local Self Government
Institution.
Therefore, from the statement filed by the Secretary of the Grama Panchayat, it is explicit that when the building permit application was submitted
by the 4th respondent to construct the building in question, it was forwarded to the District Collector, who, in fact, has returned the same pointing out
the amendment made to the Manual of Guidelines as extracted above and thereby, informing the Grama Panchayat that the power is vested with the
Grama Panchayat to consider the issue.
It is also clear from the statement filed by the Panchayat that the Panchayat has considered the issue and analysed the same in accordance with
the complaints made by the petitioners and other residents of the Grama Panchayat. It is equally important to note that the objection raised is that the
construction of the mosque is undertaken near to an existing large mosque.
Even though a contention is advanced that the petitioners were not heard, we do not find any such requirement in the matter of Manual of
Guidelines or in the Kerala Panchayat Building Rules, 2019. Added to that, we find that the duty cast upon the Grama Panchayat is only to make due
enquiries in regard to the aspects mandated under the amended Manual of Guidelines, and as we have pointed out above, the building permit was
granted and site plan was approved, after conducting due enquiry and assimilation of facts and situations by the Grama Panchayat.
Therefore, in our considered opinion, to sort out the issue with respect to the grant of a building permit for the establishment of a religious building,
the authority is solely vested with the Panchayat, and the Panchayat need to consider the factual situations and other aspects that are enumerated in
the Manual of Guidelines, 2005 and the amended Guidelines, 2021 before conferring an applicant with the requisites under the laws discussed above.
Anyway, it is not for a writ court to sit over the facts and circumstances elicited by the Panchayat and hold that the area in question is a communally
sensitive area. Moreover, clause 31 of the Manual of Guidelines dated 25th July, 2005 empowers the District Administration to identify communally
sensitive areas. There is no case for the petitioners that the area in question is a communally sensitive area identified by the District Administration.
Moreover, the grounds on which the writ petition was filed are relying upon a rule that is no more in existence, consequent to the introduction of the
Rules, 2019 and also under the impression that the Manual of Guidelines dated 25th July, 2005 was in force. The deliberations made above would
make it clear that there is no legal basis or factual foundation in the contentions advanced by the petitioners requiring us to exercise the power of
discretion conferred under Article 226 of the Constitution of India.
Before we part with the judgment, we are reminded that communal harmony in the Indian context is emanating from the cultural and religious
values stemming from the Constitution of India, by which secularism is a basic theme in the matters of administration of the nation. It is bearing this
principle in mind that inter-religious practices and customs are observed, and practised in the festivals of different communities, which are in vogue for
several centuries. It is equally important and significant to point out that those are clear reflections of defining the nature of communal harmony
prevailing in our country for centuries, with the noble and eloquent object of sustaining, and continuing the maintenance of peace and tranquility in the
community as such, for the welfare and progress of the nation and to protect the fundamental rights guaranteed to the citizens irrespective of the caste
and religious differences. Contextually, a folklore rings a bell of communal harmony in Keralaâ€"a folklore that narrates, symbolises and
commemorates the friendship of Ayappa Swamy, Vavar of Muslim community and Arthunkal Veluthachan of Christian community. During the
pilgrimage season, devotees visit both the Vavar Palli and the Arthunkal Basilica apart from Ayappa’s shrine. The church and the mosque heartily
make arrangements to host the Ayappa devotees. The mosque hosts ‘Chandanakudam’ at the end of the pilgrimage season and the Sabarimala
temple houses the Vavar Nada. Similar practice is followed in various other festivals and that is the kind of religious harmony that is pervasive in the
religious and cultural ethos of Kerala, and therefore, we do not think that any citizen would make any attempt to disturb the deep seated and strong
bondage existing among the communities.
Upshot of the above discussion is that the writ petition fails and accordingly, it is dismissed.