Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., while disposing of the present petition, directed the police authorities not to involve or obstruct the petitioners from carrying on religious activities.

 The instant writ petition was filed alleging that the 2nd respondent (Police authority) is not allowing the petitioner to perform prayers in the premises claimed to be in its possession. Petitioner alleges that though there is no complaint from the revenue authorities, the 2nd respondent is interfering and obstructing from carrying on activities, precisely, worship including other social activities conducted occasionally. It is further alleged that such interference at a stage before Christmas would be amounting to undue obstruction thereby affecting sentiments of the people belonging to the Christian community.

 It was observed by the Court, in the words,

“Be that as it may, as long as no crime is reported, the respondent-Police are directed not to involve or obstruct from carrying on activities by the petitioner. However, having regard to present pandemic, petitioner is also mandated to follow strictly the norms and guidelines stipulated by the Government with reference to conducting of meetings and it is always open to the police to take action, if those guidelines or instructions with reference to the present pandemic are violated. Petitioner is directed to video record the proceedings showing that the proceedings are conducted in full compliance of the guidelines and instructions issued by the Government with reference to the present pandemic, shall preserve and make available to police whenever required by them.”[Agape Full Gospel Ministries v. State of Telangana, 2020 SCC OnLine TS 1783, decided on 24-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In a case where the Union of India was sitting over certain lands since 33 years without any authority, the bench of Indira Banerjee and S. Ravindra Bhat*, JJ directed the Union of India to hand back possession of the suit lands to the appellants, within three months.

“33 years (based upon cessation of the Union’s legal possession) is a long enough time, even in India, to be kept away from one’s property.”


Background of the Case


  • Requisitioning and Acquisition of Immovable properties Act, 1952 was brought into force on 15.03.1952 with the object to enable the Union to requisition or acquire immovable property if the competent authority was of the opinion that any property was necessary for a public purpose. By Section 1(3), the Requisitioning Act was to be in force for six years. Section 3 clothed the Union with the power to requisition properties for any public purpose; Section 7 provided the procedure to requisition (or acquire) lands. It also spelt-out the condition precedents for exercise of the power. Section 8 provided for compensation with regard to property. Section 8(2) laid out the principles applicable for determination of compensation for the property as a recurring one.
  • On 27.02.1958, the Requisitioning Act was amended and the period of its operation extended. In the meanwhile, the Defence of India Act, 1962 (DIA) was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Requisitioning Act.
  • The Union invoked its powers under the DIA and requisitioned the three described properties which belonged to the predecessor of the appellants in 1963.
  • By Act 48 of 1963, Section 1(3) of the Requisitioning Act was amended, and the period of operation of the Requisitioning Act was extended till 14.03.1970. In the meanwhile, the DIA lapsed with effect from 10.01.1968. The Requisitioning Act was amended, incorporating Section 25, which enacted that the immovable property requisitioned under the DIA, which had not been released as on 10.01.1968 was deemed to have been requisitioned under the Requisition Act. It also continued the status quo with respect to determination of compensation completed under the DIA.
  • The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987.
  • Union asserted that it had acquired at least some parts of the suit lands; these were examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. The High Court, while noticing that the Union’s claim had no merits (in both its appeal, which was dismissed, as well as in the impugned judgment, disposing of the writ petition), nevertheless refused to issue any direction for the release of the suit lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. The impugned judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years.

Analysis


Legal effect of requisitioning immovable property

Temporarily- i.e. for the period the requisition order is in operation, the owner loses her possessory rights, even though the title remains undisturbed. Since the deprivation of possession is through authority of law, in keeping with fair procedure, the law provides for payment of compensation in accordance with predetermined principles.

“Yet, the taking of property by definition is finite: it cannot result in expropriation or deprivation of title altogether, unless another process for acquiring it, is initiated.”

Right to Property

Stating that it is not open to the state: in any of its forms (executive, state agencies, or legislature) to claim that the law – or the constitution can be ignored, or complied at its convenience, the Court noticed that although the right to property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right. Though its pre-eminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it.

“The phrasing of Article 300-A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked- they in effect, are a guarantee of the supremacy of the rule of law, no less. To permit the state: whether the Union or any state government to assert that it has an indefinite or overriding right to continue occupying one’s property (bereft of lawful sanction)– whatever be the pretext, is no less than condoning lawlessness.”

It was further stated that any condonation by the court is a validation of such unlawful executive behavior which it then can justify its conduct on the anvil of some loftier purpose, at any future time- aptly described as a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Discussion on facts

Union’s assertion that it had acquired at least some parts of the suit lands was examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. Each time, the factual findings went against the Union.

“The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. These facts paint a stark, even sordid picture.”

The Court, hence, held that the impugned judgment of the Karnataka High Court committed an error in refusing relief to the appellants.

Directions

  • The Union of India is directed to hand back possession of the suit lands to the appellants, within three months.
  • It is open to the appellants to seek compensation based on fresh fixation of capital value and recurring annual value, based on the different five- year periods for the last 20 years. Such a claim shall be referred to arbitration, within four weeks of receipt of the reference. The arbitrator shall proceed to pronounce the award within six months of receipt of the reference. This is independent of the Union’s obligation to vacate and hand over peaceful possession of the suit lands within three months.
  • The appellants shall be paid costs, quantified at ₹ 75,000/-.

[BK Ravichandra v. Union of India, 2020 SCC OnLine SC 950, decided on 24.11.2020]


*Justice S. Ravindra Bhat has penned this judgment

For Appellant: Senior Advocate Mohan Parasaran

For Respondent: Additional Solicitor General K.M. Natraj

Case BriefsSupreme Court

Supreme Court: In the issue relating to ban of female devotees between the age group of 10 to 50 from entering the Sabrimala Temple of Lord Ayyappa in Kerala, the 3-judge bench of Dipak Misra, CJ and R. Banumathi and Ashok Bhushan, JJ referred the matter to a Constitution bench.

Advocate RP Gupta, appearing for the petitioners argued that there was no religious custom or usage in the Hindu religion specially in Pampa river region to disallow women during menstrual period. He said:

“banning entry of women would be against the basic tenets of Hindu religion.”

Senior Counsel K Ramamoorthy, the amicus curiae in the matter, submitted before the that the question as to what is religious practice on the basis of religious belief which would apply not only to Ayyappa temple but would also apply to all the prominent temples all over India, cannot be decided by this bench and, therefore, the matter should be referred to a Constitution Bench.

Senior counsel Raju Ramachandran, also the amicus curiae in the matter, said:

“The right of a woman to visit and enter the temple as a devotee of the deity, as a believer in Hindu faith is an essential facet of her right and restriction of the present nature creates a dent in that right which is protected under Article 25 of the Constitution.”

Refuting the contention of the State of Kerala and the Devaswom Board that the practice is based on religious custom and the same is essential to religious practice and that there is not a total prohibition, he said that such a religious practice cannot be essential to the religion and it has been only imposed by subordinate legislation. He added:

“a significant section of adult women is excluded and the singular ground for exclusion is sex and the biological feature of menstruation. To put it differently, the discrimination is not singularly on the ground of sex but also sex and the biological factor which is a characteristic of the particular sex.”

The State and the Devaswom Board had contended that the petition under Article 32 of the Constitution was not maintainable as no right affecting public at large was involved in the case. It was further said:

“Ayyappa devotees form a denomination by themselves and have every right to regulate and manage its own affairs in matters of religion.”

It was argued that the Kerala High Court decision, where it was held restriction imposed by the Davaswom Board is not violative of Articles 15, 25 and 26 of the Constitution, would operate as res judicata.

The following questions have been framed for Constitution bench’s consideration:

  • Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
  • Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
  • Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
  • Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
  • Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution? [Indian Young Lawyers Association v. State of Kerala, 2017 SCC OnLine SC 1236, decided on 13.10.2017]
Case BriefsSupreme Court

Supreme Court: Stating that there is no connection or association of Jallikattu, a festival involving bull race, with the right of freedom of religion in Article 25, the Court said that the Tamil Nadu State Legislature could not have enacted any law like the Tamil Nadu Regulation of Jallikattu Act, 2009 as when a bull is “tamed” for the purpose of an event, the fundamental concept runs counter to the welfare of the animal which is the basic foundation of the Prevention of Cruelty to Animals Act, 1960. There is a frontal collision and apparent inconsistency between the PCA Act and the 2009 Act.

Rejecting the argument by the State of Tamil Nadu that every festival has the root in the religion and when Jallikattu is an event that takes place after harvest, it has the religious flavor and such an ethos cannot be disregarded, the bench of Dipak Misra and R.F. Nariman, JJ said that it is inconceivable that a bull which is a domestic animal should be tamed for entertainment and a wide ground can be put forth that it is not a ticketed show, but meant for celebrating the festival of harvest. Such a celebration for giving pleasure to some, both the participating and the people watching it is such an act that is against the welfare of animals and definitely amount to treating the animal with cruelty.

It was also argued that the 2009 Act falls under Entries 14 and 15 of List II of the VIIth Schedule of the Constitution and, therefore, the test of validity cannot be on repugnancy, the Court rejected the argument and said that solely because the event takes place after the harvest, it cannot be associated with agriculture. As far as Entry 15 is concerned, it provides for preservation, protection and improvement of stock and prevention of animal diseases, veterinary training and practice. The Entry is meant to confer power on the State Legislature to legislate with regard to the preservation, protection and improvement of stock and preventing any kind of animal diseases. Hence, neither Entry 14 nor Entry 15 would cover the 2009 Act.  The activity Jallikattu falls squarely within Entry 17 of List III and, therefore, it has to be tested on the anvil of repugnancy. [Chief Secretary to the Govt., Chennai Tamilnadu v. Animal Welfare Board, 2016 SCC OnLine SC 1397, decided on 16.11.2016]

Case BriefsHigh Courts

Bombay High Court: Observing that construction of illegal shrines on pathways and streets was in no way an integral part of any religion so as to be protected under Article 25 of the Constitution, a Bench comprising of Abhay Oka and Ahmed Sayed, JJ ordered the State Government to demolish all such structures that have been identified as “illegal” by the year end. The Court was hearing a PIL which sought implementation of a 2009 Supreme Court order which said that the State must demolish or regularise illegal shrines.
The Bench stated that Article 25 of the Constitution, which pertains to practise and propagation of religion, does not confer the right to offer worship at any place which has been built illegally. The Bench also made reference to the Supreme Court ruling in Sodan Singh v. NDMC(1989) 4 SCC 155, wherein the Court had expressly stated that no one can create any unreasonable obstruction on the road, which may cause inconvenience to other persons having a similar right to pass. The Court reiterated that structures that cause inconvenience to public, violate Article 21 of the Constitution.
No religion encourages its followers to construct illegal shrines or offer prayers at illegally-constructed shrines, the Court stated and thereby directed the government to initiate criminal action against people, especially religious or political leaders, who try to obstruct the demolition. The Court also asked the Police Commissioners of Mumbai and other cities to provide adequate protection to the civic staff during the demolition. [Mahesh Vijay Bedekar v. State of Maharashtra, 2016 SCC OnLine Bom 8894, decided on September 20, 2016]