While refusing to allow a petition seeking conversion of commercial building into a Muslim prayer hall, the Kerala High Court has observed that the verses of the Holy Quran relied upon by the petitioner do not say that Mosque is necessary in every nook and corner. The Court also observed that it is not stated in the "Hadees" or in the Holy Quran that Mosque is to be situated adjacent to the house of every Muslim.

In the case where there are 36 Muslim prayer halls within 5 km vicinity of the building that the petitioner was seeking to convert to a prayer hall, the Court observed that the State of Kerala has been exhausted with religious places and prayer halls.

"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.", the Bench of Justice PV Kunhikrishnan noted.

The Court observed that merely because Article 26(a) of the Constitution gave the right to establish religious institutions, religious places and prayer halls cannot be constructed in every nook and corner of the country.

The Court was alarmed by the statistics about the religious places based on the Census 2011 which highlighted that Kerala had 10 times higher number of religious structures than the total number of Villages in Kerala and 3.5 times higher than the number of hospitals in Kerala.

The Court noted that if further religious places are allowed, citizens will be left with no place to reside.

In the instant case, the petitioner, Noorul Islam Samskarika Sangam that claimed to be a Philanthropist Society had submitted an application for change in the occupancy of the building for using the building as a Muslim place of worship. However, the District Collector dismissed the application.

Feeling aggrieved the petitioner approached High Court.

Advocate P. Samsudin appeared for the petitioner whereas Advocate Deepa Narayanan, Senior Government Pleader, appeared for the official respondents. Advocate A.K.Haridas appeared for the private respondent, a Christian lady.

At the outset, the Court noted that there was no prohibition in obtaining a change of occupancy of an existing building from one group to another.

Next, the Court perused the order passed by the District Collector wherein the District Collector had observed that the petitioner had submitted an application for changing the ownership of the property on an undertaking that, it will be used only for commercial purpose.

It was also stated that the Perinthalmanna Sub Collector reported that there are about 36 Muslim prayer places within 5-kilometer radius from the petitioner's commercial building.

The Court considered the District Collector's view that the number of Hindu and Christian families residing in the area was more than the Muslim families residing and therefore if a Muslim prayer hall is approved after changing the occupancy from commercial to religious purpose, there will be communal disharmony.

The Court noted that the above facts were based on the Police report, Intelligence report and other ground realities. Therefore, the Court refused to interfere with the order of the District Collector.

The Court observed that the conduct of the petitioner in submitting the application for the change of occupancy was also doubtful.

"…it is clear that after filing the affidavit before the Panchayat on 7.3.2018 by the erstwhile owners that the building will be used only for commercial purpose, the Panchayat issued the occupancy certificate as directed by this Court in Ext.P6 judgment and property tax was also accepted. After filing the affidavit before the Panchayat on 7.3.2018, the erstwhile owners transferred the property to the petitioner-society on 28.4.2018. That means even before completing two months after the affidavit was filed by the erstwhile owners before the Panchayat, the property was transferred and an application was filed by the petitioner-Society to change the occupancy from commercial to religious purpose.", the Court observed.

The Court noted that 36 Mosques were available within the vicinity from the commercial building of the petitioner, therefore the Court held that there was no need of another Mosque in that vicinity as the devotees of Muslim community can go to other nearby Mosques.

"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.", the Court held.

"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.", the Court added further.

Therefore, the Court dismissed the petitioner's plea seeking conversion of the commercial building into a Muslim prayer hall.

The Court directed the Chief Secretary of State of Kerala and the State Police Chief to issue orders directing all the officers concerned to see that there is no illegal functioning of any religious places and prayer halls without obtaining permission.

The Court further directed that every application to start religious places and prayer halls will be as per the Manual of Guidelines and that distance to the nearest similar religious place/prayer hall is one of the criteria while considering the application for religious places and prayer halls.

Cause Title- Noorul Islam Samskarika Sangam v. The District Collector & Ors.

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Kerala High CourtJustice PV Kunhikrishnan

Ashish Shaji