The subject matter involved in these writ petitions is the conduct of holy mass by the Infant Jesus Parish Church, Thalore which is one of the catholic churches under the Archdiocese of Thrissur in a shed situated in 3.50 acres of property owned by the aforesaid church. 2. In WPC No.992/2013 filed by the two nearby residents allege that the aforesaid church has constructed a temporary shed in the said property and converted the same to a place of worship/religious place. They would also allege that the church has erected a permanent bell tower in that property and installed a church bell and the prayers are being offered in that temporary shed using loudspeakers which cause hardship and inconvenience to the petitioners and their family members. They further allege that G.O.P.No. 217/05/Home dated 25.7.2005 mandates that construction of religious place should be made only with the prior approval of the district authorities at the earmarked places. As those guidelines were violated, they approached the Revenue Divisional Officer, Thrissur, who, by an order directed the Deputy Superintendent of Police, Chalakkudy to take necessary steps to stop unauthorised use of the above property for religious purposes. However, the same has not been implemented.
3. Writ Petition No.15308/2013 is filed by the church alleging that holy mass is conducted in the open shed in the aforesaid property owned by the church on Sundays and other obligatory days and is not causing any inconvenience, nuisance or hardship to anybody else. They would contend that there is no law and order situation also. Their grievance is that the Revenue Divisional Officer has issued orders directing them to stop the prayers and the said order was issued without jurisdiction and violating the principles of natural justice. They would also contend that the report of the Tahsildar has been ignored by the Revenue Divisional Officer while issuing the order. Re-iterating the same contentions, the church has filed a counter affidavit in WPC No.992/2013. The petitioners in WPC No.922/2013 has filed a counter affidavit in WPC No.15308/2013 re-iterating the stand taken by them in their writ petition.
4. In the counter affidavit filed by the second respondent (State), it was contended that the District Collector had granted permission to conduct worship at a day-care centre owned by the church which is situated in Edakkunni Village of Thrissur Taluk comprised in Sy.No.559/5. However, now, the prayer activities are being conducted in the property which is situated near Thrikkur village in Mukundapuram Taluk in the property comprised in Sy.No.602/2, 603/1, 609/2 and 610/1. It was contended that as per the report of the Tahsildar, no permission was obtained for conducting worship in the said places mentioned by the vicar. A complaint was received on 17.7.2012 wherein it was alleged that the prayers are done by the church and nuisance is caused with mike sets and a church bell erected at the prayer site and this made the Revenue Divisional Officer to direct the Deputy Superintendent of Police concerned to stop the worship which was illegal, according to them. According to them, when people in large numbers gather, nuisance may cause to the people who are residing in the nearby locality, particularly, when prayers are conducted. They maintained the stand that as per the G.O.(P) referred to above, any new constructions of a place of worship shall be done only with the clearance of the District Collector concerned. Therefore, the second respondent justified the action in issuing orders to stop prayers in the disputed property.
5. Arguments have been heard.
6. For convenience of discussion, the petitioners in WP(c) No.992/2013 can be referred to as the local residents and the writ petitioner in WPC No.15308/2013 can be referred to as the church. The local residents would allege that the property in question is being used as a place of worship without any permission from the district authorities concerned and the same is causing hardship to them.
7. According to the State, the church had obtained permission from the District Collector for the purpose of worship at a day-care centre in Edakkunni village which is situated in Sy.No.559/5 of the said village. They would contend that now prayers are offered in the property comprised in sy.No.602/2, 603,1, 609/2 and 610/1 of Thrikkur village and according to them, it was without obtaining any permission from the authorities concerned and according to the complaint petition dated 17.7.2012, the same is causing nuisance to the local inhabitants. They also rely on G.O.P.No.217/05/Home dated 25.7.2005 which mandates clearance from the District Magistrate to conduct worship in a new place.
8. The church in their writ petition has stated that application for permission for conducing prayer in the alleged site is pending for consideration before the competent authority concerned. That would indicate that they have not obtained any permission from the district administration for converting the said property as a place of worship. The reason pointed out by the church is that more than 1100 families are attending the prayer and for their convenience, the prayer site was shifted from Edakunni Village to Thrissur Village. This, according to the church is conducted only on Sundays and other obligatory days.
9. The learned counsel appearing for the church would submit that no consecration is being held in the property in dispute and the same is not causing any nuisance to the public. It was also submitted that no loud speakers causing nuisance to the public are used in the said premises.
10. In the writ petition filed by the church, Ext.P1 order issued by the Revenue Divisional Officer is under challenge. Evidently, the said order was passed on the basis of a complaint filed by the local residents. A copy of the same is produced and marked as Ext.P2 in the writ petition filed by them.
11. It is relevant to note that in the complaint, the local residents have mentioned that the permission to conduct worship in the disputed site by the church injures their communal feeling and the same would disturb the communal harmony in the locality. I am at a loss to understand as to how a place of worship, unless it causes public nuisance, would disturb the communal harmony in the society. Should this happen in a country which follows a constitution upholding secularism? The answer can be only in the negative.
12. The church has a case that the order passed by the Revenue Divisional Officer was without affording them an opportunity of being heard. The said order does not reveal that the church was heard before the same was passed. It was also argued by the learned counsel appearing for the church that the said order offends Articles 25 and 26 of the Constitution of India. These Articles prescribe freedom of conscience and free profession, practice and propagation of religion and freedom to manage religious affairs. While the freedom enshrined by Article 25 of the Constitution is subject to public order, morality and health and to the other provisions of Part III of the Constitution, the freedom enshrined by Article 26 is subject to public order, morality and health.
13. The Government has issued an order referred to above (it is marked as Ext.P8 in the writ petition filed by the local residents) which contains guidelines regarding the construction of religious place. The same mandates that construction of religious place should be made only with the previous approval of the district authorities.
14. In this context, the learned counsel for the church submitted that the place of worship in the disputed property is not a consecrated church. According to the learned counsel for the church, on Sundays and obligatory days, common prayers are offered in the said property as 1100 families are there under the church. According to the church, these prayers are offered without causing any hindrance to the public and it was also submitted that the church would undertake that the same would not affect the public tranquility. Therefore, it was argued that the order of the Revenue Divisional Officer cannot be sustained as the same would reveal that at present there is no law and order situation in the locality.
15. In answer to the said submission, the learned counsel for the local residents would submit that the authorities need not wait for a law and order problem and they can issue prohibitory orders, if law and order problems are likely to arise.
16. It was argued by the learned counsel appearing for the local residents that clause 23 of the Government Order referred to above, which mandates the previous approval of the district authorities for construction of a religious place, is with the object of maintaining communal harmony and therefore the action of the church cannot be viewed lightly by the authorities concerned.
17. It was also submitted by the learned counsel for the local residents that the church has violated an undertaking given by them before the concerned grama panchayat. The same is produced as Ext.P9 in the writ petition filed by them. The contents reads as follows:
“We, the Parishioners of Infant Jesus Church at Thalore are so glad for, you have granted the permit for the construction of the building proposed with Ref.to the No.1.
Myself Fr.DAVIS CHAKKALAKKAL as the Vicar produce this affidavit that we will not use this building for the purpose of Adoration and liturgical ceremonies.
18. However, the learned counsel for the church would submit that Ext.P9 undertaking was with reference to the residential building made mention of in paragraph-5 of the reply affidavit filed by the local residents in their writ petition. The said paragraph reads as follows:
“The 8th respondent applied and obtained building permit for constructing residential quarters in the property in Survey No.602/2, 603/2 and 601/2 in Thalore Desom, Thrikkur Village from Nenmanikkara Grama Panchayat. In order to obtain the permit the 8th respondent submitted a written undertaking before the Panchayat. A true copy of the above undertaking given by the 8th respondent is produced herewith and marked as Exhibit P9 for identification.”
19. It was argued that clause 23 of the Government order referred to above has no application to this case as no construction is sought to be made in the property and nobody has a case that the church has constructed any permanent building to be used as a consecrated church. There is a temporary shed in the disputed property which is being used as a prayer hall on Sundays and other obligatory days. Unless it causes some public nuisance, i.e. sound pollution or obstruction to traffic etc., the local residents need not get disturbed by this. The allegation made mention of in the complaint before the authorities concerned that the conduct of prayer in the disputed property injures their communal feeling does not stand the test of reason.
20. In this context, I am of the definite view that the local residents have no actionable nuisance at present so as to obstruct the church from conducting prayers in the disputed properties.
21. The following passage (in paragraph 312 of Vol.34 of 4th Edn.) in Halsbury's Laws of England is worth quoting in this context:
“312. Damage essential.-Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist.
The damage need not consist of pecuniary loss, but it must be material or substantial, that is, it must not be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent.”
22. Therefore, this Court is of the definite view that the authorities need not interfere in the matter unless there is some intention on the part of the church to construct a permanent consecrated church in the disputed property or prayers now conducted causes public nuisance by sound pollution or obstruction to traffic in the adjacent roads.
Therefore, these writ petitions are disposed of as under:
a) The order passed by the Revenue Divisional Officer dated 1.11.2012 (Ext.P1 in WPC No.15308/2013) is quashed.
b) The church is entitled to conduct prayers in the open shed in Sy.Nos.602/2, 603/2 and 601/2 of Thalore Desom, Thrikkur village owned by them in a peaceful manner without causing any disturbance to the public using loud speakers and by causing traffic block in the nearby roads.
It shall be open to the local residents (petitioners in WPC No.992/2013) to bring it to the notice of the authorities, if directions regarding the maintenance of public order and tranquility is violated by the church.
It shall be open to the church to seek permission of the district authorities concerned under clause - 23 of G.O.P.No.217/05/Home (Ext.P8 in WPC No.992 of 2013), if they intend to construct a church in the disputed property. No order as to costs.
sd/-A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE