“Simply because a community opposes the creation of a religious place by another community, it cannot be assumed that there will be discord or breach of the peace. This cannot in any way be a reason, especially when the basis of the said apprehension is not revealed by any acceptable material, except those anticipated which the district administration is bound to avoid.

Background of the case

The petitioner owns a building which has been used as a prayer hall since 2004. The petitioner claimed that no Juma prayers were performed, no amplifiers or loudspeakers were used and that the prayer room offered only the prayers of religious people. The petitioner had applied for a permit to modify the roof of the building, which was obtained on 25.11.2014. Following this, the petitioner changed the roof. A notice was issued to the petitioner on May 11, 2015 by the Panchayat Secretary, stating that neighbors had complained about the presence of illegal constructions there and requested him to stop the construction. The petitioner responded by asserting that no illegal construction was taking place.

Fearing demolition of the roof, the petitioner filed a petition in the High Court challenging the notice issued by the neighbors. While the hearing was in progress, the Revenue Divisional Officer issued a notice for a hearing to resolve the local residents’ complaint. On January 29, 2016, the RDO ordered the operation of the prayer hall to be stopped as it would cause communal discord.

The order of the RDO was challenged by the petitioner in the High Court. The High Court made an interim order allowing the building to be used as a prayer hall, but on condition that the petitioner does not use any loudspeakers, lead the Juma prayer or use it as a place of worship permanent. The writ was issued with directions to the Collector to finally decide the matter after considering the reports of the police and revenue authorities.

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

The petitioner challenges both the order of the Collector and that of the Panchayat through the instant petition.

Arguments put forward by the parties

The petitioner submitted before the Court that there is no case in which the police interfered with public order due to the establishment of a place of religious worship since 2004.

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

Reports from the district police chief and Tahsildar showed that ‘Niskaram’ and ‘Bank Vili’ activities were taking place at the Sunni center. The report noted concerns about contamination of water sources affecting nearby houses inhabited by members of the Hindu community. Reports indicate that even some members of the Muslim community are opposed to establishing the mosque there as there are already 4 mosques within a 1 kilometer radius. The report said converting the Sunni center into a mosque could harm communal harmony in the area.

The additional district magistrate’s report said the building was modified for religious activities such as a water tank and toilets.

All these reports highlighted the opposition raised by nearby residents who mainly belong to the Hindu community.

Fundamental right to practice and profess one’s faith

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

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

The Court said the administration must safeguard all fundamental rights, including the right of the petitioner to lawfully use his property.

Public order and “law and order”

The Court declared that public order and “public order” are distinct concepts. Public order is linked to collective social harmony. “Law and order” concerns individual disputes and conflicts over tangible interests.

The Court observed that conflicts between different faiths can disrupt public order and threaten the secular fabric. The State must maintain a delicate balance between safeguarding religious freedom and respecting the principle of secularism when issuing guidelines in this area.

The Court observed that the Collector, while rejecting the CA, failed to appreciate the difference between public policy and “public order”.

The court asked the Collector to re-examine the matter and pass orders within three months. The Court ordered the petitioner not to carry out any activities of a religious nature in the meantime until permission is given to operate as a religious place.

Advisors to 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, PV Anoop, TM Khalid, KP Susmitha, Phijo Pradeep Philip, KV Sreeraj, T. Sethumadhavan (Sr.), MP Priyeshkumar

Case No: WP(C) 13544 of 2020

Case Title: KT Mujeeb v. State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 722