Kerala High Court
Kuttappan vs State Of Kerala on 29 January, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941
WP(C).No.11702 OF 2014(K)
PETITIONERS:
1 KUTTAPPAN
S/O.SANKUNNY, PAMPUMKADAN HOUSE,
THALORE P.O., TRICHUR-680306.
2 VISWAMBARAN
S/O.SANKUNNY, PAMPUMKADAN HOUSE,
THALORE P.O., TRICHUR-680306.
3 CHANDRAN
S/O.VELAYUDHAN, PAMPUMKADAN HOUSE,
THALORE P.O., TRICHUR-680306.
BY ADVS.
SRI.M.R.ANISON
SMT.V.BHARGAVI (PANANGAD)
SMT.K.P.GEETHA MANI
SMT.T.B.REMANI
SMT.P.A.RINUSA
RESPONDENTS:
1 STATE OF KERALA
REP.BY ITS SECRETARY TO GOVT., HOME DEPARTMENT,
SECRTETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR
COLLECTORATE, TRICHUR-680001.
3 CENTRAL BOARD OF SECONDARY EDUCATION
REPRESENTED BY ITS REGIONAL OFFICER, REGIONAL
OFFICE, BLOCK-B, 2ND FLOOR, LIC DIVISIONAL
OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM-
695004.
W.P.(C).No.11702/14
2
4 THRISSUR ARCH DIOCESE
REP.BY ITS PRESIDENT, ARCH BISHOP ANDREWS
THAZHATH, BISHOP HOUSE, THRISSUR-680005.
5 FR.DAVIS CHAKKLAKKAL
VICAR, INFANT JESUS CHURCH, THALORE-680306.
R1-2 BY GOVERNMENT PLEADER
R1, R4 BY ADV. SRI.V.M.KURIAN
R1, R4-5 BY ADV. SRI.MATHEW B. KURIAN
R1 BY ADV. SRI.N.SUNIL
R1, R4-5 BY ADV. SRI.K.T.THOMAS
OTHER PRESENT:
SRI.RON BASTIAN, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).No.11702/14
3
JUDGMENT
Dated this the 30th day of January 2020
1. This writ petition is filed with the following prayers:-
"a) to issue a writ of certiorari or other appropriate writ, order or direction to quash Ext.P7 order, since Ext.P7 order issued by the 2 nd respondent on 12.04.2014 will have the effect of the 2 nd respondent in directly interfering with due dispensation of Justice by this Hon'ble Court in the very same point in issue in this W.P.
(c).No.992/2013 and 15308/2013; judgment of which is reserved on 07.03.2014;
b) to issue a writ of certiorari or other appropriate writ order or direction quashing Ext.P7 order, since the same is issued in violation of the petitioners fundamental right under Article 14, 19, 21 and 25 of the Constitution;
c) to issue a writ of mandamus or other appropriate writ order or direction directing respondents 1 to 6 to take immediate steps to stop the usage of the property in survey numbers 602/2, 603/2, 609/3 and 601/2 in Thrukkur Village for religious purpose/use based on Ext.P7 order."
2. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel appearing for respondents 4 and 5.
W.P.(C).No.11702/144
3. The petitioners are residents of Thalore Desom, Trikkur Village of Mukundapuram Taluk. It is submitted that the District Collector granted permission to respondents 4 and 5 to use the premises of the daycare centre for conducting prayers. It is stated that there is an old church where the parishioners were permitted to conduct prayers by the 4 th respondent by Exhibit P2. It is submitted that the 4 th respondent had purchased 2.74 acres of land in Survey No.6012/2, 602/2, 603/2 and 609/2 of Thrikkur village. It is stated that in 2012 they constructed a temporary shed and erected a church bell and started using the shed for offering prayers. It is contended that the building permit obtained was for a CBSE school and that Exhibit P3 undertaking had been given by the 5th respondent that the constructions in the property would not be used for any religious purpose.
4. The petitioners approached the RDO seeking action to stop the illegal functioning of the church. By Exhibit P4 dated 1.11.2012 the police were directed to stop religious activities W.P.(C).No.11702/14 5 in the property of the school. When no steps were taken thereon, the petitioner filed W.P.(C).No.992 of 2013. The 5 th respondent also filed W.P.(C).No15308 of 2013 challenging Exhibit P4 order. An interim order was passed directing the implementation of Exhibit P4 order which was taken in writ appeal, which was also dismissed. It is submitted that the writ petitions were heard on 7.3.2014, but judgment was not pronounced at the time of filing of this writ petition.
5. While so, it is stated that on the eve of general elections, 2014, a notice was served by hand by the village officer requiring the petitioners to appear for personal hearing on 11.4.2014. A personal hearing was conducted on 11.4.2014. It is stated that on being convinced that there was no space for conduct of worship in the school premises, the 2 nd respondent closed the file refusing permission to conduct religious worship. However, it is stated that on the midnight of a second Saturday, that is on 12.4.2014, Exhibit P7 order was passed granting permission for conduct of religious worship in the premises. It is contended that the said order is a violation of W.P.(C).No.11702/14 6 the model code of conduct and that it is illegal, since it is a non-speaking order. It is contended that respondents 4 and 5 had not submitted any application for permission to build a new church and that the permission now granted in Exhibit P7 is illegal and unsustainable. The learned counsel for the petitioners would place reliance on a decision of the Apex Court in Church of God (Full Gospel) in India v. KKR Majestic Colony Welfare Association and others [(2000) 7 SCC 282].
6. A detailed counter affidavit has been placed on record by respondents 4 and 5. It is submitted that permission to conduct religious worship by the Parishioners of Infant Jesus Church, Thalore had been granted by Exhibit P7 order and that the petitioners have no valid grievance against the said order. Therefore, there is no reason to challenge the same. It is stated that the Chappel of the CMI Monastery was being used as a Parish church. But due to the increase of Parishioners, a request was made to the 1 st respondent to permit the conversion of a daycare center in Edakunni village for the purpose of offering worship. The 1 st respondent W.P.(C).No.11702/14 7 permitted the use of such premises for religious worship. These respondents had purchased properties for constructing church building and for other purposes. It is stated that the entire extent of property purchased by the 4 th respondent is not 2.75 acres as stated in the writ petition but 3.34 acres. It is stated that there is a vacant open shed in the property and that holy mass and religious ceremonies were being conducted without causing any hardship, nuisance or inconvenience to anybody. It is stated that only an area of 2 acres is required for the functioning of the school and that the vacant shed in the residual portion of the property was being utilized for prayers. It is stated that the petitioners are not using loud speakers or causing any difficulty to the residents of the area. It is stated that the contention that there are two churches in a 300m radius is incorrect and that the contentions raised as against Exhibit P7 are completely unsustainable. It is stated that Exhibit P7 is a detailed order which considers all relevant aspects of the matter. It is stated that the only valid contention of the petitioners was with regard to noise pollution caused by the usage of the loud speakers which has already been W.P.(C).No.11702/14 8 restricted in the order. It is contended that there is ample space for parking of vehicles and that the petitioners are in no way affected by Exhibit P7 and that the worship has been going on in the property in question without any complaint or incident for the past more than five years.
7. The respondents 4 and 5 also produced Annexure 1 common judgment in W.P.(C).No.992/2013 and 15308/2013, by which Exhibit P4 order was quashed and it was declared that the church was entitled to conduct prayers in the open shed in the property owned by them in a peaceful manner without causing any disturbance to the public by using loud speakers or causing traffic blocks in the nearby roads. It was held that it shall be open to the local residents to bring it to the notice of the authorities, if the directions regarding public order and tranquility are violated. The respondents were required to make appropriate applications for construction of the church.
8. Detailed reply affidavits and applications to receive additional material have been placed on record. The learned counsel for W.P.(C).No.11702/14 9 the petitioners submits that Annexure 1 judgment had been taken in appeal and noticing the pendency of this writ petition and Exhibit P7 order, the writ appeal was closed leaving open the contentions raised by the parties to be considered in this writ petition. It is further contended that the 4 th and 5th respondents had submitted an application for establishing a church in the property which had been duly considered and rejected by the District Collector by an order dated 4.7.2019.
9. The learned counsel for the petitioners submits that the very manner of issuance of Exhibit P7 order speaks of hidden agendas and mala fide and that the valid contentions raised by the petitioners were not considered in Exhibit P7. It is contended that Exhibit P7 is not a speaking order at all and that the respondents were only carrying out the political agenda intended to gain votes. It is contended that the entire extent of 2.75 acres of property was shown as land available for obtaining no objection from the State Government and affiliation from CBSE for the conduct of the school and that the conduct of prayers in the open shed in the said property W.P.(C).No.11702/14 10 amounts to fraud committed by the 4 th and 5th respondents. It is further contended that the application for establishment of the church had been rejected after a proper consideration of all relevant aspects. The respondents have no right to insist of conduct of prayers in a portion of property, which is a part of school compound.
10.Respondents 4 and 5, on the other hand, would contend that the petitioners have absolutely no sustainable grievance against habitual conduct of Sunday mass in a property exclusively belonging to respondents 4 and 5. It is submitted that the contention that the prayers are being conducted in a portion of the property which is required for the running of the school is completely untenable and that the extent of the property possessed by respondent No.4 is in excess of 3 acres and that the factual aspects of the matter have been specifically considered in Exhibit P7. It is submitted that no complaint of any nature has been raised by any resident of the locality or even by the petitioners themselves which would make it clear that there was no nuisance or difficulty of any W.P.(C).No.11702/14 11 form to the neighbouring residents by the conduct of prayers in the open shed as has been done on every Sunday for the past more than five years.
11. I have considered the contentions advanced. The allegation with regard to issuance of notice on a day prior to the election and the fact of passing an order as an inducement to induce a section of the electorate to vote in favour of the party in power at the relevant time are, as a matter of fact, contradictory in nature. If the notice was issued on the eve of the elections, I fail to see how an order passed four days thereafter would be an inducement for anybody to vote in any particular manner. Even otherwise, I find that the issuance of an order in the nature of Exhibit P7 is a purely executive function, which does not involve any policy decision and that the passing of such an order cannot be said to be a violation of the model code of conduct.
12.The further contention is that Exhibit P7 is a non-speaking order. A reading of Exhibit P7 would show that a hearing was W.P.(C).No.11702/14 12 conducted on 11.4.2014 and reports of the Deputy Superintendent of Police with regard to existence of law and order problems and of the District Government Pleader appears to have been obtained. After considering the sentiments of the parishioners, who had contended that they had no other means to offer prayers, permission to conduct the prayers, as was being done at the relevant time, was granted by imposing stringent conditions. It is pertinent to note that though Exhibit P7 is seen rendered on 12.4.2014, and the writ petition had been pending before this Court without any interim orders being rendered therein, no complaints of any nature had been raised by the petitioners or any other residents of the locality. The 2nd respondent's counter affidavit also does not disclose any complaints raised with regard to violation of any of the conditions as contained in Exhibit P7. The petitioners, who are only local residents, can have a valid contentions with regard to conduct of services in private premises belonging to the 4 th respondent, only if any of their rights are infringed in any manner. In the absence of any nuisance caused by the prayers conducted in W.P.(C).No.11702/14 13 the premises by the parishioners in a peaceful manner, I am of the opinion that the challenge raised against Exhibit P7 is bound to fail. The grounds raised in the writ petition do not justify the grant of the reliefs sought. The writ petition therefore fails and the same is accordingly dismissed.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.11702/14 14 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 EXHIBIT-P1: TRUE COPY OF THE ORDER NO.C1.65995/09/K.DIS DATED 26.07.2010 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 EXHIBIT-P2: TRUE COPY OF THE LETTER PUBLISHED IN A BULLETIN PUBLISHED BY ARCHIDIOCESE.
EXHIBIT P3 EXHIBIT-P3: TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE 5TH RESPONDENT BEFORE THE SECRETARY NANMENIKKARA GRAMA PANCHAYATH, PALIAKKARA.
EXHIBIT P4 EXHIBIT-P4: TRUE COPY OF THE ORDER DATED 01.11.2012 ISSUED BY THE REVENUE DIVISIONAL OFFICER, THRISSUR.
EXHIBIT P5 EXHIBIT-P5: TRUE COPY OF THE JUDGMENT DATED 10.01.2014 IN W.A.NO.70/2014.
EXHIBIT P6 EXHIBIT-P6: TRUE COPY OF THE NOTICE DATED 09.04.2011 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7 EXHIBIT-P7: TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 12.04.2014.
EXHIBIT P8 EXHIBIT-P8: TRUE COPY OF G.O.(P) NO.217/05/HOME DATED 25.07.2005.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 14.02.2013
ISSUED BY THE 2ND RESPONDENT
EXHIBIT P10 TRUE COPY OF LETTER BEARING
NO.DCTSR/6421/2018/C8 DATED 04.07.2019 EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 08.10.2015 IN W.A. NOS.1263 AND 1306/2014 W.P.(C).No.11702/14 15 ANNEXURE-1 TRUE COPY OF THE JUDGMENT DATED 20.06.2014 IN W.P.(C) NO.992/2013(Y) RESPONDENT'S EXHIBITS:
EXHIBIT R5(A) TRUE COPY OF THE BUILDING PERMIT NO.12/PMT-4/12-13 DATED 01.12.2012 EXHIBIT R5(B) TRUE COPY OF THE STATEMENT DATED 16.06.2013 GIVEN BY THE 1ST PETITIONER TO THE POLICE EXHIBIT R5(C) TRUE COPY OF THE APPLICATION DATED 30.01.2013 FILED BEFORE THE 2ND RESPONDENT EXHIBIT R5(D) TRUE COPY OF THE APPLICATION DATED 07.02.2013 TOGETHER WITH THE ENLCOSURE EXHIBIT R5(E) TRUE COPY OF THE WRIT PETITION NO.992 OF 2013 WITHOUT EXHIBITS EXHIBIT R5(F) TRUE COPY OF THE ORDER DATED 09.01.2014 EXHIBIT R5(G) TRUE COPY OF THE BUILDING PERMIT DATED 30.04.2015 ISSUED BY SECRETARY, NENMANIKKARA GRAMA PANCHAYAT, NENMANIKKARA EXHIBIT R5(H) TRUE COPY OF THE ORDER DATED 29.09.2016 ISSUED BY CENTRAL BOARD OF SECONDARY EDUCATION, NEW DELHI EXHIBIT R5(I) TRUE COPY OF THE EMAIL COMMUNICATION DATED 16.05.2019 ISSUED BY CENTRAL BOARD OF SECONDARY EDUCATION, NEW DELHI EXHIBIT R5(J) TRUE COPY OF THE ROUGH SKETCH OF THE PROPERTY OF THE CHURCH True copy PS to Judge