The Kerala High Court recently, while disallowing a petition to convert a commercial building to a Muslim place of worship, issued a direction to the State Government to close down religious places and prayer halls that were functioning illegally and without permission.
Justice P.V. Kunhikrishnan directed the Chief Secretary of State of Kerala and the State Police Chief to issue necessary orders / circulars directing all the officers concerned to see that there were no illegal functioning of any religious places and prayer halls without obtaining permission from the competent authorities as per the Manual of Guidelines and if any such religious place or prayer hall is functioning without necessary permission, to close down the same immediately. The Chief Secretary of the State of Kerala was further directed to issue necessary orders/circulars directing the competent authority as per the Manual of Guidelines to consider each application to start religious places and prayer halls strictly and the approval can be granted only in appropriate cases. In such orders, it also ought to be mentioned that that the distance to the nearest similar religious place/prayer hall is the one of the criteria while considering the application for religious places and prayer halls.
Additionally, the Court further directed the Chief Secretary of the State of Kerala to issue a separate circular/order prohibiting change of category of a building to a religious place/ prayer hall except in inevitable circumstances and in the rarest of rare case, and that also only after getting report from the Police and Intelligence ascertaining the ground realities of that particular place.
The Court further remarked,
"God is there everywhere. If the Muslim community want to conduct their 'prayers' in the mosque itself, they can go to the nearest mosque instead of constructing a new prayer hall near to their residence",
while noting that the State of Kerala was "exhausted with religious places and prayer halls and we are not in a position to allow any new religious places, and prayer halls except in the rarest of rare cases".
The directions were issued by the Court when a petition was filed in the Court seeking to convert a commercial building to a Muslim place of worship, in an area were there were already 36 Mosques within 5 kilometers radius of the said building. The same was sought on the ground that 'five times prayer' is necessary for a Muslim and thus, a prayer hall within the vicinity was a necessity for every Muslim.
The disputed property was given to the petitioner-society by its orginal owners free of cost. When the property was still under the ownership of the original owners, they had commenced the construction of a building. However, the 6th respondent in the instant case, filed a writ petition apprehending that the property owners are constructing a religious prayer hall without permit from the panchayat and the competent authorities.Thereby, the Court had previously directed the Sub Inspector of Police, Pookkottumpadam Police Station to ensure that no religious practices are carried out in the subject property if the building is constructed without permission from the appropriate authorities as provided in proviso to Rule 7(8) of the Kerala Panchayat Building Rules, 2011.
The counsels for the petitioner, Advocates P. Samsudin, M. Anuroop, Shyam Nair, and Lira A.B., submitted that alteration and conversion of buildings have been defined in the Kerala Panchayat Building Rules, 2019, and brought the attention of the Court to Rule 2(1)(f) and 2(1)(x) of the aforementioned Rules to state that conversion and alteration is possible under the same. It was further submitted that as per Rule 4(3) and Rule 5(4) of the Rules, 2019, the Secretary of the Panchayat can change the occupancy of an existing building from one group to another after getting permission from the competent authority. In this light, it was argued that the order passed by the District Collector was unsustainable. The counsels for the petitioner, by relying on the verses of the Holy Quran attempted to substantiate the argument that a Mosque/prayer hall was necessary within the vicinity of the members of the Muslim community, since they had to offer 'five times prayer' everyday. The relevant portion of the 'Hadees' of Prophet which was compiled by Imam Nawawi by producing a malayalam version of the same by Mr.Abdulla Nadvi, was also relied on, along with Chapter 191 of the above book to highlight the importance of the 'five times prayer' to the Muslim community.
When the writ had come up for the consideration of the instant Court, the Court had directed the District Collector to file a statement regarding the averments in the Writ Petition, and a detailed report had been filed by the same.
The Counsels for the respondents, Advocates Krishna Prasad, A.K. Haridas, and N. Anand, and the Senior Government Pleader Deepa Narayanan, submitted that although the said building had been initially constructed for commercial purposes, an inspection of the inner area of the building revealed that it was arranged more for religious purpose than for commercial purpose. In the counter affidavit filed by the 4th Respondent, the Secretary of the Arambalam Grama Panchayat, as well as the report of the District Collector, it was found that 36 Mosques were situated within 5 kilometers radius from the petitioner's commercial building. The counsels submitted that as there were many Mosques situated within a short distance from the said commercial building of the petitioner, the establishment of another one would result in communal disharmony amongst the people, particularly considering that the area was one where Hindus and Christians were in majority.
At the very outset, the Court dwelt upon the issue of whether conversion or alteration of the occupancy of an existing building from one group to another group is possible. On perusing the Rules, 2019, the Court found on a conjoint reading of the provisions Rules 2(1)(f), 2(1)(x), 4(3), and 5(4) that an occupancy of an existing building from one group to another is possible only after getting permission from the Secretary of the Panchayat, thus indicating that there was no prohibition to the same, as such.
The Court found that on a reading of the clauses of the 'Manual of Guidelines to Prevent and Control Communal Disturbance and to Promote Communal Harmony', permission from the District Authorities was necessary only for the construction of religious place and renovation of an existing place of worship. Although in the instant case, the petitioner wanted a change of occupancy of a building to a religious place, the Manual of Guidelines would still be applicable, and approval from the competent authority would be necessary. On this ground, having found no illegality with the Order that had been passed by the District Collector dismissing the application for conversion, the Court declined to interfere with the same.
The Court also found the conduct of the petitioners in applying for the change of occupancy to be dubious. After filing the affidavit before the Panchayat on 7.3.2018 by the erstwhile owners that the building would be used only for commercial purpose, the Panchayat issued the occupancy certificate as per the directions of the Court, and property tax was also accepted. However, on 28.04.2018, the property was transferred to the Petitioner Society, and an application had been filed by the petitioner-Society to change the occupancy from commercial to religious purpose, which further created suspicion in the mind of the Court regarding the conduct of the Petitioner.
The Court also perused the relevant portions in the Quran that had been brought to its attention by the counsel for the petitioner, and observed that, although the verses of the Holy
"clearly highlights the importance of Mosque to the Muslim community. But, it is not stated in the above verses of the Holy Quran that Mosque is necessary in every nook and corner".
Importantly, the Court remarked that,
"If further religious places and religious prayer halls are allowed in Kerala without any guidelines, there will be no place for the citizens to reside".
It was in this light that the Court declared that the category change from one category to religious place would not be necessary unless there are sufficient reasons for the same. It was further added that if any building is used for religious purpose when the building is constructed for some other purpose, stringent action ought to be taken by the Police authorities and the State. The order of the District Collector was thus confirmed, and the aforementioned direction were also issued in this regard.
Case Title: Noorul Islam Samskarika Sangham v. The District Collector, Malappuram & Ors.
Citation: 2022 LiveLaw (Ker) 453