Is it against secularism for the State to allot government land, especially one containing a water body, to a particular religious community to construct a place of worship?
The questions arose in a nine-year-old petition filed by the Federation of Chennai Suburban (South) Welfare Association against the Tamil Nadu government's decision to transfer, free of cost, 27 acres of "government pond" to Muslim associations for constructing a mosque.
In September 1986, the State government issued a Government Order transferring the public pond at Ullagaram village in Saidapet taluk without any land cost on the condition that the mosque must be constructed within a period of two years, failing which the land would be taken back.
The residents had challenged the government order on the ground that a State government cannot show favour to any religion or religious sect or denomination. It was against secularism, a basic feature of the Constitution.
When the residents failed before the Madras High Court, they had moved the Supreme Court, contending that the provisional transferring of the government pond in favour of the Muslim association for constructing a mosque violated secularism.
“The State has absolutely no jurisdiction to pass the government order making allotment to any particular religion/community affecting the established rights of the entire public and society at large for the purpose of constructing a religious building,” the residents submitted in the Supreme Court.
“The State is not only prohibited to establish any religion of its own but is also prohibited from identifying itself with or favouring any particular religion,” the residents quoted the Supreme Court's own ruling in M.P. Gopalkrishnan Nair versus State of Kerala case in 2005.
After a detailed hearing spanning over an hour, a three-judge Bench led by Chief Justice of India J.S. Khehar asked Tamil Nadu, represented by advocate B. Balaji, to respond in a detailed affidavit the State's position within four weeks.
Noting that the 1986 order was provisional in nature and no final allocation has been made so far, the court said it would examine the controversy behind the State government's policy.
It said its focus would be on the “legal question whether construction can be raised in an area where a government pond is in existence”.
The petition said the local revenue rules do not permit disposal of public lands specifically classified as “water courses, sources, burial grounds, grazing grounds, etc., where assignment alienation and transfer have been banned by the government”.
The residents submittted that the land in question was currently in the possession of the local municipality, which was using it for a public purpose.
