P.V.Kunhikrishnan, J
1. The preamble of the Constitution of India starts with the words, “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC------”. Originally, it was “Socialist Democratic Republic” and it was substituted by the Constitution (Forty-second Amendment) Act, 1976 to “Sovereign Socialist Secular Democratic Republic”. Our constitution gives religious freedom to all citizens. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes as per Article 26 of the Constitution of India. That does not mean that the citizen can do anything which may lead to communal disharmony. Nowadays, it is a trend to erect some stones or cross in public places and government land claiming religious importance to that place and thereafter to start worshipping these stones and cross with religious colour. Subsequently, this will lead to temporary constructions and ultimately permanent construction treating it as a religious place. If people start to construct illegal religious structures and buildings in public places and government land, it may create friction among the religions which will definitely lead to religious disharmony.
2. The facts of this case is a best example to show that illegal constructions are made for worship in government land and later making pucca structures claiming that it is religious places. The petitioner in this writ petition is the Plantation Corporation of Kerala, represented by its Managing Director. The Plantation Corporation of Kerala is the largest Plantation Company in public sector and the same was formed in 1962. By an indenture of lease dated 09.07.1971, executed between the State of Kerala and the Plantation Corporation of Kerala, a long term lease of immovable property was granted to the Plantation Corporation of Kerala. As per Ext.P1, the respective properties given on lease were the land known as Kodumon Group, the land known as Kalady Group and the land known as Perambra Group. Ext.P1 would indicate that the leased property is the property of the Government and that the Plantation Corporation of Kerala is a lessee of the same.
3. One of the estates of the Corporation is known as Chandanapally Estate, which is separated by specific boundaries from the adjoining private properties, is the submission. According to the petitioner, there were consistent attempts of certain vested interests to establish a temple in Division C of the Chandanappally estate during November, 2009. Such acts had the effect of the property of the corporation being trespassed upon by private individuals in the name of establishing a temple, is the submission. When such a move was opposed, there was a serious law and order situation and ultimately the Revenue Divisional Officer, Adoor and the DYSP of Police, Adoor intervened in the issue, is the submission. Subsequently, the matter was resolved and the trespassers agreed that no further encroachment or constructions would be carried out. It is submitted that, violating the above undertaking, the respective encroachers, who were aided by respondents 8 and 13 and their associates attempted to trespass into the property of the Corporation on 27.06.2010. The petitioner submitted Ext.P2 representation before the Revenue Divisional Officer, Adoor on 01.07.2010. Even thereafter, there were several attempts by several religious organizations to trespass into the property of Chandanappally Estate and to establish temples thereon and whenever the authorities of the Corporation attempted to question the respective trespass, they were threatened by certain fanatic outfits, is the submission. The details of the attempted encroachments are incorporated in the writ petition in the following manner;
a. Division C of Chandanappally Estate
In this Division, there was a small idol worship and subsequently, without the sanction or concurrence of the forest officers or other statutory bodies, there were attempts to enlarge the small idol into a full fledged temple.
b. Mottapara - Division D
In this division, there were 4 small houses accommodating 4 families of the employees of the Corporation. A portion of this estate was attempted to be encroached upon, and there were attempts to affix "Thrishuls" etc and to construct an auditorium. Such attempts were made in the tapping area of the respective estate.
c. Division E- Chandanathadikkal
By trespassing into approximately 2 acres and in this division there were attempts by certain religious outfits to reduce the properties of the government and the corporation into their possession.
d. Division- E Komban Muthappan Temple
By trespassing into approximately 50 cents of property there were attempts to expand the worship of a small idol.
e. Puthussery Muthappan –
Division A In this case, also approximately ½ acre of property has been attempted to be trespassed upon and reduced into the possession of the respective religious outfits,
f. Division A- Prathishta
In this case also approximately 20 cents of property was attempted to be encroached upon and the respective encroachers have attempted to establish a temple therein.
4. It is submitted that, in the name of religion, there has been a conscious attempt by certain political groups to trespass into the properties of the Corporation (which belongs to the Government) and to reduce the same into their possession. It is submitted that the Corporation was bound to protect the interests of the Government also. Hence, the Corporation through the authorized officer, submitted representations to the District Collector, Pathanamthitta, the District Police Superintendent, Pathanamthitta, the Revenue Divisional Officer, Adoor and the Divisional Forest Officer, Konni, pointing out the subject illegalities committed by the party respondents and their agents, is the submission. Ext.P3 to P6 are produced to prove the same. It is submitted that the party respondents or their associates are not empowered in any manner to trespass into the property of the Government and such trespass is squarely prohibited under the Kerala Land Conservancy Act and its allied enactments. Hence, this writ petition is filed with the following prayers:
(i) “Issue a writ of mandamus or any other appropriate writ, direction or order commanding respondents 1 to 7 to identify the properties of the petitioner Corporation covered by Exhibit P1 lease deed and to evict all encroachers therefrom and thereby protect the state property.
(ii) Issue such other further reliefs as are necessary in the interests of justice.” [sic]
5. Heard the learned Standing Counsel appearing for the petitioner, the learned Government Pleader and also the learned counsel appearing for party respondents.
6. A statement is filed by the 6th respondent as directed by this Court. In the statement, it is stated that one of the estates of the Corporation known as Chandanappally Estate, which is separated by specific boundaries from the adjoining private properties is lying under the jurisdictional areas of Konni, Koodal and Koduman Police stations in Pathanamthitta District. It is stated in the statement that there were several attempts by local residents to establish places of worship in the property of the petitioner. It is also stated in the statement that, whenever such attempts were noticed, Police and Revenue authorities were intervened and prevented further encroachments. It is submitted that, on 27.10.2016, the petitioner submitted a petition before the District Police Chief, Pathanamthitta and the same was forwarded to Sub Inspector, Koodal for enquiry and necessary action. It is also submitted in the statement that, on the basis of the petition, enquiry was conducted in the spot and summoned all concerned to the police station. According to the 6th respondent, enquiry revealed that places of worship were being established in Mottappara, Chandanathadikkal and Padayanippara. According to 6th respondent, strict instructions were given to respondents 9 to 13 to remove the structures illegally built on the property of the petitioner and warned against any further encroachments.
7. It is also submitted that the Plantation Corporation of Kerala has obtained an extent of 1540 hectares of land from the Forest Department for the cultivation of rubber plants on lease and various workers are being employed in the plantation and most of them live in the accommodation provided by the Corporation known as 'LAYAM'. The area of the Corporation extends to more than 1000 hectares, is the submission. According to the 6th respondent, most of the employees believe in Hindu religion and in the absence of places of worship near the LAYAM, they erected small buildings and placed deities in them. These gods are known as Malayappooppan, Madan, Bhiravan etc. According to the 6th respondent, the Plantation authorities did not oppose the erection of such small temples for the worship of its workers. But gradually, the local residents intervened in the affairs of such temples and they tried to erect new buildings nearby such temples. This created friction between the authorities of the Corporation and local residents, is the submission. The small temples established by the workers are very old, and it is easy to remove such temples, is the submission. But according to the 6th respondent, it will create law and order issues. It is also submitted by the 6th respondent that on the basis of a petition submitted by the Plantation Corporation of Kerala before the District Police Chief, the enquiries were conducted at the spot and summoned respondent Nos. 9 to 13 to the Police Station and instructed to remove the structures illegally constructed in the petitioner's property. It is also stated by the 6th respondent that strict instructions were also given to desist from further encroachments. Local residents were also warned against interfering with the affairs of the Plantation Corporation of Kerala, is the submission of the 6th respondent.
8. The counsel for the petitioner submitted that even now, the illegal structures are there in the Government land, which was given to the petitioner on lease. The Government Pleader submitted that illegal structures if any will be removed immediately. Even though notice was served to respondent Nos. 8 to 13 and they appeared through counsel, no counter affidavit is filed by respondent Nos. 8 to 13.
9. This Court considered the contentions of the petitioner and the respondents. It is an admitted fact that there are illegal structures in the Government land, which is now given to the Plantation Corporation on lease. A perusal of the statement filed by the 6th respondent would show that, since the workers engaged by the Plantation Corporation are mostly from Hindu community and they are residing in the accommodation provided by the Corporation, which is known as 'LAYAM', they erected small buildings and placed deities in them for worship because there is no place of worship near the LAYAM. It is also stated by the 6th respondent that the small temples established by the workers are very old and easy to remove. But, it will create law and order issues. I cannot accept this explanation of the 6th respondent. This is how illegal structures are emerging in the State under the guise of religious worship. Kerala is a small State in which there are hundreds of temples, churches and mosques. Kerala is known as 'God's Own Country'. Kerala is a state where the population is high. The Government is taking steps to distribute the Government land to hundreds of landless people. Some of the land is given for plantation on lease. Such places cannot be utilised for religious purposes. It will only create religious disharmony in the State. If one religion is allowed to erect its deity in a Government land, the other religions also will start to erect their religious institutions. This will only create problems, including law and order issues in the State. Therefore, I am of the considered opinion that no illegal religious places should be allowed on Government land, whether the same is that of Hindu, Christian, Muslims or any other religion.
10. In Balakrishna Pillai and Others v. Union of India and Others [2021 (4) KHC 282], this Court observed that for the development of National Highway, if the religious institutions are affected, God will forgive us and God will protect the petitioners, the authorities and also the author of the judgment. God will be with us. The relevant portion of the judgment is extracted hereunder :
“20. Our Country is now launched upon an ambitious program of all around economic advancement to make our economy competitive in the world market. To improve the economy, infrastructure available in the country is also to be developed. National Highways are necessary for free transportation of vehicles, goods etc. According to me, one of the need of the Country is National Highway with sufficient width, with straight roads, so that citizens, businessmen, industrialists and people from all walks of life can use the same. In such a situation, if this Court starts to interfere in acquisition proceedings of National Highway on the basis that there is a curve or there is a Mosque or there is a Temple or there is a School, the acquisition proceedings could not be completed. Unless there are mala fides or unless there is patent illegality, the acquisition proceedings cannot be interfered with by the Writ Court, invoking the powers under Art.226 of the Constitution of India. The vehement argument of the petitioners is that, if the proposed alignment is accepted, that will destroy two mosques and two temples. Here I remember the famous film song of the veteran poet and the pride of Keralite Sri. Sreekumaran Thambi. A portion of the song is extracted hereunder:
"മണണ്ണിലലും വണ്ണിണണ്ണിലലും തൂണണ്ണിലലും തുരുമണ്ണിലലും ദദൈവമണ്ണിരണ്ണിക്കുന്നു അവ കരുണണാമയനണായയ് കണാവ വണ്ണിളകണായയ് കരളളിലളിരളിക്കുന്നു "
I am not a person to translate these lines. But for this judgment, English translation is almost like this. "The God almighty is omnipresent. He exist on the earth, in the sky, in pillars, and in the rust. He is the embodiment of kindness and dwells in the hearts of all, as a light of kindness." For the development of the National Highway, if the religious institutions are affected, God will forgive us. God will protect the petitioners, the authorities, and also the author of this judgment. God will be with us .”
11. The same principle is applicable to the illegal religious structures in government land. It is stated that the workers engaged by the Plantation Corporation are mostly from Hindu community and they are residing in the accommodation provided by the Corporation, which is known as 'LAYAM', and they erected small buildings and placed deities in them for worship because there is no place of worship near the LAYAM. God almighty is omnipotent. As per Hindu mythology, the “Narasimhavatharam” of Mahavishnu came out from a pillar. As far as believers are concerned, irrespective of their religion, God is everywhere, including in their bodies, their homes and wherever they go. Therefore the believers need not encroach government land to construct religious structures. Let it be distributed to landless people and used for mankind. God will be more happy in such a situation and will shower blessings to all believers.
12. Similarly, in Noorul Islam Samskarika Sangam Thottekkad, Malappuram v. District Collector, Malappuram and others [2022 (5) KHC 595], this Court observed that Kerala is exhausted with religious institutions and prayer halls. There are sufficient number of religious places and prayer halls to all communities in the State. The relevant portion of the above judgment is extracted hereunder :
“19. There are devotees in Hindu, Christians, Muslim etc. in our land. Kerala is a small State in which all these community members are staying with happiness and with communal harmony. Kerala is exhausted with religious institutions and prayer halls. There are sufficient number of religious places and prayer halls to all the communities in the State even as per the 2011 Census Report. As far as the present case is concerned, there are about 36 mosques situated within 5 kilometre radius from the existing commercial building of the petitioner. Then why another prayer hall for the petitioner is a million dollar question. The Government and the local bodies should be vigilant while granting permission for religious places and prayer halls in future. It should be done strictly in accordance to the Manual of Guidelines. Moreover, the change of occupancy of existing building from one category to the category of religious places shall not be allowed in normal cases. Rejection of approval should be the rule and the approval should be only in rarest of rare case. If there is any inevitable situation, the competent authorities as per the Manual of Guidelines, before taking decisions, should go deep into such requests after getting intelligence report and police report about the ground realities. As far the change of occupancy to religious purpose is concerned, normally it should not be approved because the purpose of the construction is for the category in which the permit is issued. The construction of a commercial building and construction of a religious place are entirely different. In a State like Kerala, the category change from one category to religious place is not necessary unless there are sufficient reasons for the same. If any building is used for religious purpose when the building is constructed for some other purpose, stringent action should be taken by the Police authorities and the State. Normally the category change of the building from one category to a religious category is to be deprecated. If every devotee of Hindu, Christian, Muslim, Jews, Parsis, etc. start to construct religious places and prayer halls near their residence, the State will face serious consequence including communal disharmony. In this case the intelligence report and the police report says that if the present conversion of the commercial building to a religious prayer hall is allowed, there is chance for communal disharmony. It is a sensitive issue. Therefore the authorities should not permit such category change and if any such inevitable situation arise, a detailed study considering the facts and circumstances of that particular case is necessary. If there are other similar religious place / prayer hall available nearby, that is a sufficient ground to reject a request for change of category to the religious place and even to construct a new religious place / prayer hall. Each case has to be considered based on its own merit, but with great caution………………………………………………………………………………
20. 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. As I observed earlier, in the Modern Era, almost all the citizens have vehicles. Cycles are also available for transportation. Public transportation facility and private transportation facility are also available. Moreover, every step towards the mosque by a Muslim will only increase their status and will vanish their sins. Therefore the members of the Muslim community can walk to the nearest mosque so that they can achieve higher status and vanish the sins committed by them. For conducting ‘prayers’ to the Muslim community members, prayer hall is not necessary within 10 metres or 100 meters from their residence. They can travel to the mosque for prayers if they are real devotees and the followers of prophet. Because of the peculiar geographical situation of Kerala, it is known as ‘God’s own country’. But we are 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. While confirming Ext.P13 order passed by the District Collector in this case, I think appropriate directions is to be issued to the Government and Police authorities for taking appropriate steps to see that the citizens are living with happiness alone without any communal disharmony. Let the citizens love each other and follow their religious practices according to their religious beliefs. They can do it from their house and if their religion insists that, it should be done together in a prayer hall; they can travel to the nearest mosque instead of constructing another mosque or prayer hall in their neighbourhood. This reminds me of the famous lines of the Malayalam song written by the great poet Late Vayalar Ramavarma. A portion of the song and the sum and substance of the meaning of the same in English is extracted hereunder:
“മനഷഷന മതങളള സഷഷച
മതങള ദദവങളള സഷഷച
മനഷഷനന മതങളന ദദവങളന കടഷ
മണ പങവച - മനസ പങവച
മനഷഷന മതങളള സഷഷച
ഹഷനവവയഷ മസലമവനവയഷ
കഷസഷവനഷയവയഷ
നമളള കണവലറഷയവതവയഷ
ലലവകന ഭവനവലയമവയഷ
…………………………."
“Man created religions
Religions created God
Man, religions and God together divided
the earth and divided the heart.
We became Hindus, Muslims, Christians
When we meet, we stopped recognizing each other
The earth became a madhouse
- -----------”
21. If the poet is alive today, I am sure that the poet will rewrite the second line of the above song as... “religion is the creator of religious places”, instead of God. As I observed earlier, certain directions are necessary invoking the inherent powers of this court under Article 226 of the Constitution of India to the State Government and to the Police authorities for taking appropriate steps to ensure that there is no communal riot or communal disharmony in the State of Kerala because of the construction of prayer halls and category change of buildings to religious prayer halls.
Therefore, this writ petition is disposed of with following findings and directions:
1. Ext.P13 is confirmed and the prayers in the writ petition are rejected.
2. The Chief Secretary of State of Kerala and the State Police Chief shall issue necessary orders / circulars directing all the officer concerned to see that there is 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 take necessary steps to close down the same forthwith.
3. The Chief Secretary of the State of Kerala will 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 the order/circular, it should be clearly mentioned that the distance to the nearest similar religious place / prayer hall is one of the criteria while considering the application for religious places and prayer halls.
4. The Chief Secretary of the State of Kerala will 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.
5. The registry will forward a copy of this judgment to the Chief secretary of the state of Kerala and the State Police Chief for issuing appropriate consequential orders.”
13. In the light of the above principle laid down by this Court, I am of the considered opinion that the illegal religious places in Government land also should be removed forthwith. The respondent Nos. 1 to 7 will take the necessary steps to identify the properties of the petitioner - Corporation covered by Ext.P1 lease deed and evict all encroachers therefrom within a time frame.
14. Moreover, if there are any illegal religious structures or buildings in any Government land, the Government should take necessary steps to remove the same forthwith. I am of the considered opinion that the Chief Secretary of the State should issue direction to all the District Collectors in the State to get a report from the Village Officers and Tahsildars to conduct an enquiry to find out whether any illegal religious structures including the erection of unauthorized stones or cross or other structures by any religious group is there in the Government land. Based on the report of the Village Officers and Tahsildars concerned, the District Collectors of the State should take necessary actions within a time schedule to evict all illegal religious structures so that we can live with communal harmony to strengthen the country as a ‘SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC’ as enshrined in the preamble of our Constitution of India.
Therefore this writ petition is disposed of with the following directions:
1. Respondents 1 to 7 will identify the properties of the petitioner Corporation covered by Ext.P1 lease deed and evict all encroachers including illegal religious structures constructed in the Government land, forthwith, at any rate, within a period of six months from the date of receipt of a copy of this judgment.
2. The Chief Secretary of the State will instruct all the District Collectors in the State to conduct an enquiry through the Tahsildars, Village Officers etc. to find out whether any illegal unauthorized stones or cross or other structures are erected with a religious colour in any Government land by any religious group. If any illegal religious structures are there on the Government land, the public is also free to bring the same to the notice of the District Collector. The District Collector shall conduct such an enquiry within a period of six months from the date on which the orders are received from the Chief Secretary of the State.
3. Once any illegal religious structures are found in the Government land, the jurisdictional District Collectors with the aid of the Police department shall evict the illegal religious structures from the Government land, within a period of six months after the enquiry is conducted as directed above, of course after hearing the affected parties if any.
4. The action taken report as directed by this Court shall be placed before the Registrar General of this Court within a period of one year.
5. Registry will forward a copy of this judgment to the Chief Secretary of the State forthwith.
