Kerala High Court
Ismail Mussaliyar vs State Of Kerala on 20 June, 2012
Author: K.M.Joseph
Bench: K.M.Joseph, K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934
WP(C).No. 12740 of 2012 (N)
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PETITIONERS:
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1. ISMAIL MUSSALIYAR, AGED 46 YEARS
S/O. MOIDEENKUTTY, IMAM
MASJID-UL-NOORIYA MUSLIM NAMASKARA PALLI
KUTTISSERI CHINA, A.R. NAGAR VILLAGE
THIRURANGADI TALUK.
2. KUNJIPOKKER HAJI,
S/O. MOIDEENKUTTY
MOOTHAVALLY AS WELL AS THE ELECTED PRESIDENT MUSJIDUL
NOORIYA MUSLIM NAMASKARA PALLI
KUTTISSERICHINA, A.R. NAGAR VILLAGE
THIRURANGADI TALUK.
BY ADV. SRI.T.V.GEORGE
RESPONDENTS:
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1. STATE OF KERALA
REPRESETNED BY THE SECRETARY TO HOME DEPARTMENT GOVT.
SECRETARIAT
TRIVANDRUM- 695 001.
2. DISTRICT SUPERINTENDENT OF POLICE,
MALAPPURAM - 676 001.
3. SUB INSPECTOR OF POLICE,
THIRURANGADI, MALAPPURAM DISTRICT - 676 306.
4. MOOZHIKKAL ABOOBACKER
S/O. MUHAMMEDKUTTY, MOOZHIKKAL, HOUSE
A.R.NAGAR,.P.O., THIRURANGADY TALUK - 676 301.
WP(C).No. 12740 of 2012 (N) : 2 :
5. ABDUL AZIZ,
S/O. UNNENKUTTY, NAMBANKUNNATHU HOUSE
A.R. NAGAR.P.O., THIRURANGADY TALUK - 676 301.
6. MOIDEENKUTTY AREEKKANADAN
S/O. MUHAMMEDKUTTY, AREEKKADAN A.R.NAGAR.P.O.
THIRURANGADY TALUK - 676 301.
BY ADV. SRI.T.SETHUMADHAVAN
BY ADV. SRI.K.JAYESH MOHANKUMAR
BY ADV. SRI.R.RAMADAS
BY GOVERNMENT PLEADER SRI.C.R.SHYAMKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 12740 of 2012 (N)
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1 COPY OF DEED OF APPOINTMENT OF MUTHAVALLI.
EXT.P2 COPY OF COMPLAINT DT.5/10/2011 BY THE 1ST PETITIONER
BEFORE THE 3RD RESPONDENT.
EXT.P3 COPY OF STATEMENT PREPARED BY THE A.S.I. OF POLICE,
TIRURANGADI DT.7/10/2011.
EXT.P4 COPY OF FIR NO. 510/2011 UNDER SECTION 341,506(1) READ
WITH SECTION 34 IPC.
EXT.P5 COPY OF STATEMENT PREPARED BY THE A.S.I. OF POLICE,
TIRURANGADI DT. 25-5-2012.
EXT.P6 COPY OF FIR IN CRIME NO. 252/2012 U/S. 341,323, 324,
R/W SECTION 34 IPC BY THE THIRURANGADI POLICE.
EXT.P7 COPY OF REPRESENTATION DT. 28/5/2012 BEFORE THE 3RD
RESPNODENT.
EXT.P8 COPY OF REPRESENTATION DT. 30-5-2012 BEFORE THE 2ND
RESPONDENT.
EXT.P9: COPY OF THE REPORT DTD.5.1.2012
EXT.P10: COPY OF THE LETTER DTD.27.4.2012
EXT.P11: COPY OF THE LETTER DTD.31.5.2012
EXT.P12: COPY OF THE DOCUMENT NO.1596/86 DTD.18.6.1986
RESPONDENTS' EXHIBITS
EXT.R4(A): COPY OF THE PROCEEDINGS OF THE DISTRICT REGISTRAR,
MALAPPURAM, DTD.5.7.2011
EXT.R4(B): COPY OF THE LETTER DTD.12.3.2012
EXT.R4(C): COPY OF THE FIR NO.253 DTD.25.5.2012
EXTS.R6, R6(A), R6(B), R6(C), R6(D) : TRUE COPY OF THE SALARY
VOUCHERS
EXT.R6(F) : COPY OF THE PLAINT IN O.S.NO.20/2012
//TRUE COPY//
P.A TO JUDGE
K.M.JOSEPH & K.HARILAL, JJ
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W.P(C) No.12740 of 2012
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Dated this the 20th day of June, 2012
J U D G M E N T
K.M.Joseph, J The petitioners have approached this Court seeking the following reliefs:
"i) call for the entire records relating to the above case.
ii) Issue a writ of mandamus or any other
appropriate writ, order or direction, commanding
respondents 2 and 3 to afford adequate and effective police protection to the lives and properties of the petitioners and their men from the illegal attacks of respondents 4 to 6 and their henchmen.
iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 2 and 3 to afford adequate and effective police protection for the smooth functioning of Masjid-ul-
Nooriya Muslim Namaskara Pally, from the illegal attacks of respondents 4 to 6 and their henchmen."
2. Briefly put, the case of the petitioners is as follows:
The 1st petitioner is the Imam of Masjid-ul-Nooriya Muslim Namaskara Pally. He is continuously rendering his services as Imam in the said Namaskara Pally for the last 13 years. 2nd petitioner is the Muthavally of the properties which belonged to Masjid-ul Nooriya Muslim Namaskara Pally. He has W.P(C) No.12740 of 2012 2 been appointed as the Moothavally in the year 2005. Subsequently, he was elected as the President of Masjid-ul Nooryia Muslim Namaskara pally No.508/2010 which is registered under the Societies Registration Act 1860. As such the petitioners herein are managing the affairs of the Masjid-ul Nooriya Muslim Namaskara pally without any interruptions.
While so, the respondents 4 to 6 started to make all troubles and to prevent the smooth functioning of the Namaskara pally. Respondents 4 to 6 by themselves and also engaging their gundas made all obstructions and prevented the petitioners and other functionaries from discharging their duties. The allegation is that on 5.10.2011 the petitioner filed Ext.P2 complaint. Exts.P3 and P4 are the statement and FIR. It is stated that respondents 4 to 6 continued their illegal acts. The respondents continued their threat that the petitioners will be done away with. There is allegation about attack by respondents 4 to 6 of one V.K. Saidu, who is an aid of the 1st petitioner. He was admitted to the hospital. Exts.P5 and P6 are the statement and FIR in Crime No.252/2012. It is also stated as follows:
Previously the Musjid-ul committee filed writ petition No.22721/2011 before this Hon'ble Court, seeking to set aside W.P(C) No.12740 of 2012 3 the cancellation order passed by the District Registrar. Later, the Secretary of the said pally committee filed W.P(C) No.34185/2011 seeking for a direction to the Registrar to accept and approve the annual list of the Managing committee and for other reliefs. The said cases are pending before this Hon'ble Court.
3. The petitioners filed Exts.P7 and P8 and are before us. A counter affidavit is filed by respondents 4 and 5, wherein it is inter alia stated as follows:
The Masjidul Nooriya Nasrathul Islam Sangham/Society (Regn.No.262/1987) was registered in the year 1987 under the Societies Registration Act and it is situated in Re-survey No.476/6 having an extent of 10.4 Ares. The said property was given in Wakf by its owners as early as in the year 1930. The local Sunni Muslims have been managing the affairs of the said mosque and its properties by forming a committee for its management. Since the property was given in wakf orally by its owner, the committee felt that a registered document has to be executed in respect of the Wakf property. The deed was executed on 18.6.1986.
One Mr.Aalassankutty was the President of the Sangham W.P(C) No.12740 of 2012 4 when the wakf deed was executed in the year 1986. It was also registered under the Societies Act. Sri.Areekatt Kunhipocker Haji (2nd petitioner) was the vice president of the Sangham till 2009-2010 and one Sri.Palassery Kooliparambil Aboobacker was the Joint Secretary. They colluded with certain persons and changed sides and formed a new society in the year 2010 with registration No.508/2010. The 2nd petitioner became the President of the society. Apart from the above two persons all the officers bearers are still continuing as members of the Sangham (Regn.No.262/1987) and more than 95% of the Mahal members are also with the Sangham as its members. Only the aforesaid two members left the Sangham. There is reference to the proceedings of the District Registrar, Malappuram dated 5.7.2011, wherein it is inter alia stated that he has found that there is no material to show that the activities of the Sangham/society (Regn.No.262/1987) has been discontinued.
The 2nd petitioner has registered the new society along with less than 5% of the Mahal members suppressing materials and misleading the District Registrar. No document could be produced in respect of the mosque. The other allegation about threat etc. are denied. Ext.R4(b) purports to be the letter W.P(C) No.12740 of 2012 5 written by the Tahsildar rejecting the request of the 2nd petitioner for acceptance of the land tax and for issuance of possession certificate. Ext.R4(c) purports to be the FIR registered by the Tirurangadi Police. It is their case that mosque and wakf property are being managed properly by the Sangham (Regn.No.262/1987) and more than 95% of the members are with the Sangham. The idea of the petitioners is to capture the administration and management of the wakf and its properties. It is also stated that the 6th respondent is the Imam. It is also alleged that the 1st petitioner was removed from the post of Imam on the basis of serious complaints received by the committee. The 1st petitioner is also involved in criminal case. It is also stated that the 2nd petitioner is also a party to the minutes recorded in the presence of the Circle Inspector of Police, Tirurangadi, wherein it was decided to remove the 1st petitioner from the post of Imam.
4. The 6th respondent filed a separate counter affidavit producing various documents. He has also filed an additional affidavit, wherein he has referred to the proceedings of the Wakf Tribunal in a suit. It is also stated that there is an order of Wakf Tribunal in an application for temporary injunction to maintain W.P(C) No.12740 of 2012 6 status quo.
5. The petitioner has filed a reply affidavit producing Exts.P9 to P12.
6. We heard the learned counsel for the petitioners and also the learned counsel for the parties including the learned Government Pleader.
7. The learned counsel for the parties reiterates their contentions. Apparently, the 2nd petitioner purports to claim under Ext.P1. Ext.P1 is actually executed in the year June 2011. It may be true that as contended by the learned counsel for the petitioners that there is no specific averments by the respondents with regard to the Muthavalliship of the 2nd petitioner. But they have at any rate stated that the Society bearing registration No. 262/1987 is managing. They have a definite case that more than 95% of the members are with them. The matter is pending in this Court by way of challenge to the order of the District Registrar as stated in the writ petition itself. The petitioners no doubt try to draw support from Exts.R2(c) , Exts.P9 and P10.
8. This Court does not decide the disputed questions of fact. It is no doubt true that there is no jurisdictional bar. There W.P(C) No.12740 of 2012 7 is no bar to record oral evidence if the circumstances so justify. But that would be in an extra ordinary situation. The rights of petitioner herein which are in dispute cannot be settled in a writ proceeding.
9. In this case on the one hand it is the claim of the petitioners that the 1st petitioner is the Imam for the past 13 years. On the other hand it is a case of the party respondents that the 1st petitioner has been removed on complaints against him and the 6th respondent is the Imam. It is certainly not a dispute which we can resolve. The foundation of the writ of mandamus is the existence of legal right with the petitioners. The legal right itself is in dispute. We do not think that it may be appropriate to exercise our jurisdiction and entertain the request for relief under Article 226. Even as regards the 2nd petitioner, there is an averment that the Society is in power. The dispute in respect is also pending consideration in this Court in the writ petition No.34185/2011.
Therefore we would not think that in the facts of this case, it may be appropriate for us to consider the reliefs sought by the petitioners. We would relegate the petitioners to work out remedies in any other competent forum. The said forum before W.P(C) No.12740 of 2012 8 which the matter comes up will decide the matter untrammeled by any observation contained in the judgment. However, we record the submission of the learned counsel for the respondents 4 to 6 that they will not make any kind of physical threat to the petitioners.
We close this writ petition.
K.M.JOSEPH, JUDGE K.HARILAL, JUDGE ab