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Mohanan v. District Collector

  • Building

Panchayat Building Rules, 2019 (Kerala) – Rule 25 Construction of Mosque 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.

On an analysis of the amended Manual, 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.

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.

Whether, there is any illegality in the approval of the plan and granting building permit for the construction of a mosque ?

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.

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.

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.

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 Kerala—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.

Writ petition is dismissed.

W.P. (C) No. 12767 of 2021; 18 January 2022

Present : S. Manikumar; CJ & Shaji P. Chaly; J.

Petitioner/s: By Advs. R. Krishna Raj, E.S. Soni, Sangeetha S. Nair; Respondent/s: By Advs. Siju Kamalasanan, SC, Clappana Grama Panchayat, K. B. Arunkumar R1 & R3 By Tek Chand, Sr. Government Pleader R2 By Sri. Siju Kamalasanan R4 & R5 By Sri. K. B. Arun Kumar