J U D G M E N T

The petitioners have approached this Court challenging Ext.P9 order of the District Collector, Thiruvananthapuram, refusing permission to the petitioners to construct a church/prayer hall in Re-survey Nos.141/7-1 of Ottasekharamangalam Village in Neyyattinkara Taluk and Ext.P.11 order of the Government on an appeal against Ext.P9. The property in question was acquired by the 1st petitioner in the name of his wife. Applications were made to construct a residential building along with a prayer hall. In the year 2008, the land together with a partially constructed building, was transferred to the 2nd respondent through a gift deed.

2. A reading of Ext.P9 order of the District Collector, Thiruvananthapuram, will indicate that the permission was refused, taking into consideration the fact that the authorisation to construct a prayer hall/church in the said locality would result in severe law and order problems and communal tensions and would also affect communal harmony in the area. An appeal filed against Ext.P9 order was also rejected by the Government through Ext.P11 order for the same reasons.

3. The learned counsel appearing for the petitioners would submit that Exts.P9 and P11 orders are illegal and unsustainable in law. It is submitted that the persons in the locality have no objection to the prayer hall/church functioning in the said premises. It is submitted that notwithstanding the rejection of the permission, the prayer hall/church is presently functioning there, and there have been no communal tensions. It is submitted that, in such circumstances, Exts.P9 and P11 orders are liable to be quashed, and it is to be declared that the petitioners are entitled to permission as prayed for.

4. The learned Government Pleader vehemently opposes granting any relief to the petitioners. It is submitted that with reference to Ext.P9 order that the said order was issued taking into consideration various reports referred to in Ext.P9, which indicated that the permission to construct a prayer hall/church in the property in question would cause communal tensions and would affect the communal harmony of the area in question. It is submitted that such a decision by the competent authority cannot be reviewed in a writ petition under Article 226 of the Constitution of India as long as there is nothing to suggest that the decision was taken arbitrarily and without sufficient material to justify it. The learned Government Pleader has also placed for my consideration the judgments of this Court in Seventh Day Adventist Church and Another v. State of Kerala and Others, 2018 (2) KLT 685 and Noorul Islam Samskarika Sangam Thottekkad, Malappuram v. District Collector, Malappuram and Others, 2022 (5)

KHC 595 in support of this contention. The learned Government Pleader adds that though permission was denied through Exts.P9 and P11, the petitioners have continued with the functioning of the prayer hall and in respect of which, certain criminal cases have also been registered.

5. The learned counsel appearing for respondents 15 to 17 would submit that they are immediate neighbours of the property and have no objection to the prayer hall/church being constructed/functioning there.

6. In reply, the learned counsel appearing for the petitioners would submit that the church/prayer hall has been functioning in the said locality since 1999. It is submitted that the provisions of the Building Rules and the provision requiring permission of the District Collector were introduced only in the Panchayath in question in 2011, and the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005 itself came into operation only in 2005. It is, therefore, submitted that a church/prayer hall that was already functioning cannot be termed illegal based on a manual introduced later and based on rules which came into force only much later.

7. I have considered the contentions raised. In Noorul Islam Samskarika Sangam Th