Madras High Court
Rev.H.E.Chandra Kumar vs The District Collector on 5 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.A.(MD)No.1438 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.03.2025
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
W.A(MD)No.1438 of 2022
and
C.M.P(MD)No.11574 of 2022
Rev.H.E.Chandra Kumar,
S/o.Henry Thomas,
Pastorate Chairman and Correspondent,
2D/1, CSI Christ Church Parsonage,
Mission School Street,
Kalakad, Tirunelveli District. ... Appellant /
Petitioner
Vs.
1.The District Collector,
Tirunelveli District.
2.The Superintendent of Police,
Tirunelveli District.
3.The Revenue District Officer,
Cheranmahadevi, Tirunelveli District.
4.The Tahsildar,
Nanguneri Taluk,
Tirunelveli District. ... Respondents /
Respondents
(Cause title is accepted vide order of this Court dated 13.10.2022 made
in C.M.P(MD)No.9486 of 2022)
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W.A.(MD)No.1438 of 2022
Prayer: Writ Appeal filed under Clause 15 of Letters Patent to set aside
the order dated 29.08.2022 in W.P(MD)No.4203 of 2016.
For Appellant : Mr.G.Prabhu Rajadurai
For Respondents : Mr.K.Balasubramani
Special Government Pleader
for R.1, R.3 & R.4
Mr.M.Karunanidhi
Government Advocate (Criminal Side)
for R.2
JUDGMENT
(Judgment of the Court was made by G.R.Swaminathan J.)
Heard both sides.
2.One Rev.P.T.Swamidoss was functioning as Pastorate Chairman
of CSI Christ Church Parsonage, Kalakad, Tirunelveli District. He
questioned the proceedings dated 28.12.2015 passed by the District
Collector, Tirunelveli rejecting the request for constructing a CSI church
in Survey No.559/3 in Kovilammalpuram Village in Nanguneri Taluk by
filing W.P(MD)No.4203 of 2016. The writ petition was dismissed by the
learned single Judge on 29.08.2022. Challenging the same, this Writ
Appeal has been filed by the current Chairman of the Parsonage.
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W.A.(MD)No.1438 of 2022
3.The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds of writ appeal. He
submitted that the order impugned in the writ petition violates the
appellant’s freedom of conscience and the right to freely profess, practise
and propagate religion guaranteed under Article 25 of the Constitution of
India. According to the learned counsel, the District Collector had
arbitrarily rejected the request for putting up the church. The learned
counsel also questioned the factual basis on which the order of the
learned single Judge rests. According to him, persons hailing from the
locality have not raised any objection. The authority could not have
negatived the request by citing objection from the district office-bearer of
a communal organization. The learned counsel asserted that persons
belonging to CSI denomination are peace-loving and that there is no
history of communal clash involving them. He also submitted that there
are no temples within a distance of 750 meters from the proposed prayer
hall. Even though a similar request was rejected earlier, nothing can
come in the way of the applicant renewing his request. He called upon
this Court to set aside the impugned orders and allow the writ appeal as
prayed for.
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W.A.(MD)No.1438 of 2022
4.Per contra, the learned Special Government Pleader as well as
the learned Government Advocate (Criminal Side) submitted that the
learned single Judge had correctly approached the issue and that
interference with the same is not warranted.
5.We carefully considered the rival contentions and went through
the materials on record.
6.Right to construct a place of worship by a religious
denomination would fall under Article 26(a) of the Constitution of India.
Though it is a fundamental right, it is not absolute. The right to freedom
of religion will have to give way to the demands of public order. Unlike
the fundamental freedoms enshrined in Article 19, Articles 25 and 26
open with the words “subject to public order, morality and health”. The
expression “subject to” has been interpreted by the Hon’ble Supreme
Court in the decision reported in (2012) 4 SCC 463 (UOI v. Brigadier
P.S.Gill) holding that the phrase conveys the idea of a provision yielding
place to another provision or other provisions to which it is made subject.
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W.A.(MD)No.1438 of 2022
7.That is why, it is not open to an individual or a denomination to
erect a temple or a mosque or a church without getting permission. Prior
approval of the District Collector must be obtained. Rule 4(3) of Tamil
Nadu Panchayats Building Rules, 1997 is as follows :
“4.(3) No site shall be used for the construction of a
building intended for public worship or religious purposes
without the prior approval of the Collector of the district
who may refuse such approval, if in his opinion, the use of
the site and buildings is likely to endanger public peace and
order. ”In the case on hand, without getting such a permission, the construction
works had commenced. Following the intervention of the jurisdictional
police, one Samuel Peter submitted application dated 13.04.2015 for
constructing a church in Survey No.559/3. This request was rejected
vide order dated 28.12.2015 by the District Collector.
8.The question that calls for consideration is whether the learned
single Judge was justified in sustaining the rejection order. The statutory
Rule empowers the District Collector to refuse approval for constructing
a building intended for public worship or religious purpose if in his
opinion the use of the site or building is likely to endanger public peace
and order. If the refusal is arbitrary or based on no material, then
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W.A.(MD)No.1438 of 2022
certainly, it can be quashed by the writ court. In this case, the
Superintendent of Police, Tirunelveli District vide letters dated
29.03.2014 and 21.10.2014 had raised objections on the ground that if
church is built in the proposed spot, public order issues were likely to
arise. The Sub Collector, Cheranmahadevi had also given an adverse
report. According to the said officials, objections had been received from
the general public. Only after factoring the stand taken by the
Superintendent of Police and the Sub Collector, the District Collector
passed the order dated 28.12.2015. By no stretch of imagination, the
rejection order can be characterised as arbitrary.
9.The statutory rule empowers the District Collector to refuse
approval, if in his opinion, public peace and order is likely to be
endangered. The words which confer discretion are significant. Primacy
is accorded to the opinion formed by the Collector. In P.Ramanatha
Ayyar’s Advanced Law Lexicon, the expression “opinion” has been
defined as meaning judgment or belief based on grounds short of proof.
It must be based on such reasons and grounds as seem good to the person
forming such opinion. Rule 4(3) talks about “his opinion”. Of course,
the authority cannot form an arbitrary opinion without any basis. When
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W.A.(MD)No.1438 of 2022
there is proper foundation for the formation of opinion, the writ court
would not interfere. Any decision taken by an executive authority is
amenable to judicial review. But there are varying standards of judicial
review. Some issues deserve a hard look. In some places, a kid glove
approach may be adopted. Prof.Schotland spoke about ranking of
standards of judicial review according to strictness. To him, the scope of
review is a spectrum, with de novo at one end, with unconstitutionality at
the other end, and in between a number of “mood points” or degrees of
judicial aggressiveness or restraint (cited in Rajeev Suri v. DDA, (2022)
11 SCC 1, para 525). We hold that often in matters involving public
order, adopting a deferential approach cannot be said to be misplaced.
The importance attached to maintenance of public order is evident in the
aforesaid Rule. The sub-rule does not talk of granting or according
approval. On the other hand, it talks about the power of the District
Collector to refuse approval.
10.After elaborately discussing the factual matrix, binding
precedents, constitutional provisions and the statutory Rule, the learned
Single Judge had concluded as follows:
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W.A.(MD)No.1438 of 2022“24.In view of the above said facts, this Court is
not in a position to entertain the present writ petition
under Article 226 of Constitution of India and cannot
substitute the opinion of the respondents 1 and 2 relating
to the issue of public order in a particular hamlet. The
first respondent has arrived at a subjective opinion based
upon the concrete materials furnished by the revenue and
police authorities after giving personal hearing to the
writ petitioner.”We endorse the stand of the learned Single Judge.
11.As rightly pointed out by the learned Special Government
Pleader, the appellant faces yet another technical impediment. It is not as
if the District Collector had rejected the request for constructing a church
in Survey No.559/3 for the first time. In fact, when the same request was
earlier made, the then District Collector, Tirunelveli passed rejection
order vide proceedings dated 24.06.2012. For reasons that are not quite
clear, the said order was not put to challenge. The learned counsel for the
appellant contended that a second application requesting approval for
constructing a church can be made and the failure to challenge the earlier
order of rejection cannot operate as an impediment. We do not agree.
Once a site has not been found to be fit for use for constructing a
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W.A.(MD)No.1438 of 2022
building intended for public worship or religious purpose and a rejection
order has been passed, it will hold good unless it is set aside in the
manner known to law. Otherwise, it would amount to reviewing the
earlier order of rejection. It is well settled that the power of review must
be statutorily conferred. It is not an inherent power. In any event, an
administrative authority cannot review his own order [(2019) 9 SCC 416
(Naresh Kumar vs. State]. The Tamil Nadu Panchayats Building Rules,
1997 does not contain any provision for reviewing an order of refusal
passed under Rule 4(3) by the same authority. What cannot be done
directly cannot be done indirectly.
12.For the foregoing reasons, this Writ Appeal stands dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
[G.R.S., J.] [M.J.R., J.]
05.03.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
MGA
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W.A.(MD)No.1438 of 2022
To
1.The District Collector,
Tirunelveli District.
2.The Superintendent of Police,
Tirunelveli District.
3.The Revenue District Officer,
Cheranmahadevi,
Tirunelveli District.
4.The Tahsildar,
Nanguneri Taluk,
Tirunelveli District.
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W.A.(MD)No.1438 of 2022
G.R.SWAMINATHAN,J.
AND
M.JOTHIRAMAN, J.
MGA
W.A(MD)No.1438 of 2022
05.03.2025
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