The Allahabad High Court while disposing the petition said that the right of the petitioner to construct a Temple on his private property is protected by Articles 25 and 26 of the Constitution. Mere construction of a Temple by any person on his private property cannot offend the religious sensibilities of any other community.
The Division Bench of Justice Salil Kumar Rai and Justice Surendra Singh-I passed this order while hearing a petition filed by Acharya Pramod Krishnam Ji Maharaj.
The facts of the case are that a Kalki Mahotsav is held in Village Achora Kambo, Tehsil and District Sambhal. The petitioner claims himself to be a reputed Hindu Saint and also claims that he has been declared as Peethadhishwar of Sri Kalki Dham which is in the Village.
The petitioner claims that he is involved in movements for national integration and has been performing the Kalki Mahotsav at Kalki Dham which, he states in the petition, to be a historical, religious and spiritual programme.
The petitioner has purchased certain properties in the village and had planned to lay the foundation of Kalki Dham Temple in the village on 7.11.2016.
It appears that a representation was made by one Inamur Rahman Khan claiming himself to be the National President of Muslim Kisan Union that the foundation laying ceremony of the Temple would be opposed by the Muslims. A similar report was also submitted by the Deputy District Magistrate, Sambhal to the District Magistrate, Sambhal who, apprehending breach of peace due to opposition by a religious community to the foundation laying ceremony, vide his order dated 6.11.2016 restrained the petitioner from making any constructions or laying the foundation of the Temple without obtaining permission from the district administration.
Consequently, the petitioner could not lay the foundation stone of the Temple on 7.11.2016. The petitioner claiming that the order dated 6.11.2016 was passed ex parte and without giving any opportunity of hearing to him filed writ praying to quash the order dated 6.11.2016 and also for a mandamus commanding the officers of district administration to allow the petitioner to construct the Temple and to lay the foundation stone of the Garbhagriha of the Temple.
Writ was disposed of by the Court vide its order dated 25.8.2017 permitting the petitioner to move an application before the District Magistrate for recall of the order dated 6.11.2016. The petitioner filed an application for recall of the order dated 6.11.2016 which has been dismissed by the District Magistrate, Sambhal vide his order dated 30.10.2017.
The petition has been filed praying to quash the order dated 30.10.2017 and for a mandamus restraining the respondents – officers of the State and district administration from interfering in the construction and functioning of the Temple at Kalki Dham.
The Court noted that in the counter affidavit filed on behalf of respondent no 4, it has been stated that the bye-laws of the Zila Panchayat, Sambhal were framed on 2.6.2018 and they have also been published in the Uttar Pradesh Gazette. It is also relevant to note that it is not denied by the respondents that the petitioner is the owner of the plots on which the Temple is proposed to be constructed.
Challenging the order dated 30.10.2017, the counsel for the petitioner has argued that petitioner had the right to construct Temples on his plots and the said right of the petitioner is protected by Articles 25 and 26 of the Constitution of India.
It was argued that the orders dated 6.11.2016 and 30.10.2017 violate the Freedom of Religion of the petitioner as granted by Articles 25 and 26 of the Constitution of India.
It was further argued that there is no evidence for concluding that there would be a breach of peace or that the public order would be disturbed in case a Temple is constructed on the plot of the petitioner.
It was also argued that there is no evidence that the petitioner intends to illegally occupy any State land or to use it for the purposes of Temple.
It was argued that the order dated 30.10.2017 is based on presumptions and there is no evidence in support of the facts and reasons stated in the said order to restrain the petitioner from constructing a Temple on the plot.
It was argued that for the aforesaid reason, the order dated 30.10.2017 is contrary to law and liable to be quashed.
The Court further noted that there is no dispute regarding the title of the petitioner over the plots on which the proposed Temple is to be constructed. It is not the case of the administration or any person that the petitioner has illegally encroached or has illegally acquired the plots. The plots are not State lands. It is not the case of the administration or of any religious group that the religious beliefs of the petitioner insults the religious or personal sensitivities of any person or community. So far as public order is concerned, the only ground stated in the order dated 30.10.2017 is that certain leaders of another religious community had informed the administration that the construction of the Temple was a new tradition and would be opposed by their community. There is nothing on record to show that any substantial section of the muslim community was opposed to the construction of the Temple.
The Court said that,
Mere construction of a Temple by any person on his private property cannot offend the religious sensibilities of any other community. It is not the case of the administration that persons of other religious communities had protested against the construction of the Temple, the foundation of which was to be laid on 7.11.2016. The right of the petitioner to construct a Temple on his private property is protected by Articles 25 and 26 of the Constitution and there is no evidence that the construction would have disturbed public order or was against morality or would be inimical to public health.
As noted earlier, there is nothing on record to show that the petitioner by constructing a Temple intended to insult any other religious community and mere objection by few persons belonging to other religions cannot be a ground to restrict the rights guaranteed under Articles 25 and 26 of the Constitution of India.
Further, the mere fact that a Masjid exists at a distance of 144 meters from the plot on which the Temple is proposed to be built by itself cannot raise an apprehension that communal peace or public order would be disturbed if a Temple is built on the plots. Any act by any person of either community which could disturb communal peace, social harmony or public order in the area after the construction of the temple has to be controlled by the district administration exercising its powers under the Code of Criminal Procedure, 1973 including the powers under Section 144 of the Code of Criminal Procedure, 1973.
“So far as the opinion of the District Magistrate that because the plots on which the temple is to be constructed is adjacent to or near State lands and, therefore, the construction of Temple may cause encroachment over State lands is also fallacious. It is the duty of the State to protect its property from encroachment and it would be for the Zila Panchayat to consider as to whether sufficient space for different facilities including parking of vehicles and holding other functions in the Temple is provided by the petitioner if the map is submitted for approval by the Zila Panchayat. Only because the plots on which the Temple is proposed is near State lands is not, by itself, sufficient to conclude that the petitioner intends to encroach upon the State land.
Apparently, the order dated 30.10.2017 of the District Magistrate is based on presumptions and surmises”, the Court observed while disposing the petition.
“The other grounds stated in the order of the District Magistrate regarding parking of vehicles, sufficient space for religious congregation or medical emergency and access to roads shall be considered by the Zila Panchayat while considering the map submitted by the petitioner.
However, the observations of the District Magistrate in his order dated 30.10.2017 regarding public order or the intention of the petitioner to encroach upon the State lands shall not be binding on the Zila Panchayat while considering the map of the petitioner.
It is clarified that the Zila Panchayat shall pass appropriate orders on the map submitted by the petitioner strictly in accordance with its bye-laws and without being persuaded by the observations of the District Magistrate made in his order dated 30.10.2017″, the order reads.