Kerala High Court Rejected a Petition to convert Commercial building into a “Muslim place of worship”

Kerala High Court Muslim Hall

KERALA: Recently, in the Matter of Noorul Islam Samskarika Sangham v. The District Collector, Malappuram & Ors, Kerala High Court rejected a petition to convert a commercial building to a Muslim place of worship. The Court further ordered the State Government to close down religious places and prayer halls that were functioning illegally and without permission.

The Bench headed by Justice P.V. Kunhikrishnan directed the Chief Secretary of State  and local police to issue necessary orders for 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 authorities

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.

Further, The Court 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”

In a said matter 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 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.

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 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”.

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