Kerala High Court
Unknown vs Present on 15 April, 1979
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939
WP(C).No. 36249 of 2017 (E)
PETITIONER(S)
1 P. HARIDAS
AGED 67 YEARS, S/O. CHANDAPPAN, PINPURATH HOUSE,
KADALUNDI AMSOM PAZHANCHANNUR DESOM, KOZHIKODE P.O.,
CHALIYAM,
PIN-673301.
2 P. MOHANDAS,
AGED 61 YEARS, S/O. CHANDAPPAN, PINPURATH HOUSE,
KADALUNDI AMSOM PAZHANCHANNUR DESOM, KOZHIKODE P.O.,
CHALIYAM,
PIN-673301.
3 P. UMESH BABU,
AGED 55 YEARS, S/O. CHANDAPPAN, PINPURATH HOUSE,
KADALUNDI AMSOM PAZHANCHANNUR DESOM, KOZHIKODE P.O.,
CHALIYAM,
PIN-673301.
BY ADVS.SRI.R.SUDHISH
SRI.P.P.BALAN
SMT.M.MANJU
RESPONDENT(S):
1. COMMISSIONER OF POLICE, KOZHIKODE
POLICE HEADQUARTERS, KOZHIKODE-673001.
2. CIRCLE INSPECTOR OF POLICE,
NALLALAM, P.O. NALLALAM, KOZHIKODE-673027.
3. SUB INSPECTOR OF POLICE,
BEYPORE, KOZHIKODE, PIN-673015.
4. THE SECRETARY,
CHALIYAM MUSLIM IYYATH SANGHAM,
KADALUNDI, KOZHIKODE, P.O. CHALIYAM-673301.
5. KERALA STATE WAQF BOARD,
REPRESENTED BY CHAIRMAN, DIVISIONAL OFFICE, EROTH CENTRE
BANK ROAD, P.O. KOZHIKODE-673001.
R1-R3 BY ADV.SURESH BABU THOMAS, ADDL.DIRECTOR GENERAL OF PROSECUTION
R1-R3 BY ADV.P.P.THAJUDEEN, SR.GOVERNMENT PLEADER
R4 BY ADV. SRI.K.M.FIROZ
R4 BY ADV. SMT.M.SHAJNA
R5 BY ADV. SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 36249 of 2017 (E)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 COPY OF THE DOCUMENT NO.1214/1979 OF FEROKE SUB
REGISTRAR OFFICE DATED 15.4.1979 WITH ENGLISH
TRANSLATION.
EXHIBIT P2 COPY OF THE DOCUMENT NO.1376/1979 OF FEROKE SUB
REGISTRAR OFFICE DATED 27.4.1979 WITH ENGLISH
TRANSLATION.
EXHIBIT P3 COPY OF THE DOCUMENT NO.2678/1920 OF THE FEROKE
SUB REGISTRAR OFFICE DATED 14.8.1920 WITH ENGLISH
TRANSLATION.
EXHIBIT P4 COPY OF THE DOCUMENT NO.2531/1924 OF FEROKE SUB
REGISTRAR OFFICE DATED 25.8.1924 WITH ENGLISH
TRANSLATION.
EXHIBIT P5 COPY OF THE DOCUMENT NO.2036/2006 OF FEROKE SUB
REGISTRAR OFFICE DATED 02.5.2006 WITH ENGLISH
TRANSLATION.
EXHIBIT P6 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.557 OF
WARD-3.
EXHIBIT P7 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.558 OF
WARD-3.
EXHIBIT P8 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.559 OF
WARD-3.
EXHIBIT P9 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.560 OF
WARD-3.
EXHIBIT P10 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.561 OF
WARD-3.
EXHIBIT P11 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.562 OF
WARD-3.
EXHIBIT P12 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.563 OF
WARD-3.
WP(C).No. 36249 of 2017 (E)
EXHIBIT P13 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.564 OF
WARD-3.
EXHIBIT P14 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.565 OF
WARD-3.
EXHIBIT P15 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.566 OF
WARD-3.
EXHIBIT P16 COPY OF THE OWNERSHIP CERTIFICATE DATED
19.9.2017 ISSUED BY KADALUNDI GRAMA PANCHAYATH
IN FAVOUR OF THE PETITIONERS FOR DOOR NO.567 OF
WARD-3.
EXHIBIT P17 COPY OF THE NOTICE OF ENQUIRY ISSUED BY THE 5TH
RESPONDENT DATED 19.5.2014 NO. A9.391/2014-11 UNDER
SECTION 54 OF THE WAKF ACT READ WITH RULE 95 OF
THE KERALA WAKF RULES 1996 TO 11 OCCUPANTS OF
THE PROPERTY.
EXHIBIT P18 COPY OF THE OBJECTION FILED BY THE PETITIONERS
BEFORE THE CHIEF EXECUTIVE OFFICER, KERALA WAQF
BOARD DATED 01.08.2014.
EXHIBIT P19 COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONERS BEFORE THE 1ST RESPONDENT DATED
21.9.2017.
RESPONDENTS' EXHIBITS
EXHIBIT R4(a) : COPY OF PETITION PREFERRED BY 4TH RESPONDENT BEFORE CEO,
KERALA STATE WAKF BOARD UNDER SECTION 54 OF THE WAKF ACT.
EXHIBIT R4(b) : COPY OF PETITION PRFERRED BY 4TH RESPONDENT BEFORE CEO
WAKF BOARD UNDER SECTION 32 OF THE WAKF ACT.
//TRUE COPY//
PS TO JUDGE.
jg-16/1
K.VINOD CHANDRAN & ASHOK MENON, JJ.
-------------------------------------------
WP(C) No.36249 of 2017
-------------------------------------------
Dated this the 10th day of January, 2018
J U D G M E N T
Ashok Menon, J.
The petitioners are brothers, and have approached this Court against alleged police harassment. They claim to be tenants in possession of eight cents of land with an old building in disrepair, bearing door Nos.557 to 567 in Ward No.3 of Kadalundi Panchayat. The property once belonged to Chaliyam Juma Masjid, of which the fourth respondent is the Secretary. It is stated that the property was leased out by the wakf to tenants way back in 1885 and several transactions later, the property came into exclusive possession and enjoyment of the petitioners and another brother of theirs in 1979, as per Exts.P1 and P2 assignment deeds. Exts.P3 and P4 are the earlier documents executed in the years 1920 and 1924, respectively. By virtue of Ext.P5, one of the brothers of the petitioners released his undivided joint right in favour of the WPC36249/17 -2- petitioners. The petitioners have obtained ownership certificate from Kadalundi Grama Panchayat regarding the building (Door Nos.557 to 567), as evidenced by Exts.P6 to P16. The petitioners claim that they have perfected their title by virtue of fixity of tenure. The building situated in the property is now in a ramshackle condition and requires repair to keep it standing. When they attempted to get the building repaired, the fourth respondent and his men obstructed. The petitioners received Ext.P17 notice from the fifth respondent Wakf Board on a petition allegedly filed by the fourth respondent for eviction of the petitioners under Section 54 of the Wakf Act, 1995 from the land allegedly belonging to the Wakf. That matter is now being contested and Ext.P18 is the objection filed by the petitioners before the Chief Executive Officer of the Wakf Board. If the petitioners are not able to carry out necessary repairs, the building may reduce to ruins. At the behest of the fourth respondent, the petitioners are being constantly harassed by respondent Nos.2 and 3 and therefore, they filed a representation before the first respondent as Ext.P19. Despite having no surviving WPC36249/17 -3- right in the property, the fourth respondent wields considerable clout over the Police to harass the petitioners. Hence, this petition.
2. The learned Senior Government Pleader appeared for respondent Nos.1 to 3. Respondent Nos.4 and 5 also appeared through counsel. Heard both sides.
3. Fourth respondent has filed a detailed counter affidavit stating that the petitioners are encroachers in unauthorised occupation of the property belonging to the Wakf. Hence, for eviction of unauthorised occupation, action has been initiated by the fourth respondent by filing Ext.R4(a) petition before the Chief Executive Officer of the Wakf Board. Another petition (Ext.R4(b)) has been filed before the Wakf Board to get the property measured.
4. The learned Senior Government Pleader submits that the Police had interfered only because there is a dispute regarding the building allegedly belonging to a Wakf, and that, the area is communally sensitive. Hence, precautions are taken to see that the dispute does not precipitate communal tension.
5. There is no dispute that the petitioners are presently in exclusive possession of the property, consisting of certain rooms. WPC36249/17 -4- The Panchayat has also issued certificate of ownership to them. Fourth respondent contends that it is an encroached property and that the documents of title relied upon by the petitioners are not valid. We do not intend to enquire into the title of the parties in dispute. It is for the Wakf Board or the Civil Court to determine the title to the property. However, in view of the fact that the petitioners are in possession of the property, rightly or wrongly, they can only be evicted by due process of law by a Court or Forum of competent jurisdiction. It is pointed out that the building in their possession is in a dilapidated condition and that requires extensive repairs to prevent its total destruction. The demand of the petitioners cannot be deemed unreasonable. In case, they are evicted, they will not be able to claim any value for the improvements made. They do not intend to construct something new. They only want to retain the existing structure. The fourth respondent or the Police cannot prevent them from doing so. However, their ultimate right will have to be determined by a Civil Court as already mentioned.
WPC36249/17 -5-
6. The learned Senior Government Pleader, on instructions, submits that the Police have no intention to evict the petitioners from the property; but however, they are cautious to prevent untoward instances of communal flare up. Recording the submissions made by the learned Senior Government Pleader, we dispose of the Writ Petition leaving open the remedy of the parties to settle their dispute before appropriate Forum, and in the meantime, respondent Nos.1 to 3 shall see to it that the petitioners are not unnecessarily harassed or evicted, otherwise than by due process of law, and they shall maintain law and order as situation demands.
This Writ Petition is disposed of as above. No order as to costs.
K.VINOD CHANDRAN JUDGE ASHOK MENON JUDGE jg