Kerala High Court
Ap Saleem Mohyudheen vs The Station House Officer on 6 February, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 43230 OF 2023
PETITIONERS:
1 AP SALEEM MOHYUDHEEN
AGED 60 YEARS
S/O ABUBACKER HAJI, AROTH HOUSE, KUTTIKKATTOOR PO,
KOZHIKODE SECRETARY, KUTTIKKATTOOR MUSLIM JAMAATH
COMMITTEE, PIN - 673008.
2 N K YOOSUF HAJI
AGED 56 YEARS
S/O SEETHI, N K HOUSE, KUTTIKKATTOOR PO, KOZHIKODE,
PIN - 673008.
3 KUTTIKKATTOOR MUSLIM JAMA-ATH COMMITTEE
KUTTIKKATTOOR, KOZHIKODE REPRESENTED BY ITS PRESIDENT SRI
TM AHAMMED HAJI, PIN - 673008.
BY ADVS.
SAYED MANSOOR BAFAKHY THANGAL
AJITH VISWANATHAN(K/580/2016)
P.VISWANATHAN (SR.)(K/000283/1986)
RESPONDENTS:
1 THE STATION HOUSE OFFICER
MEDICAL COLLEGE POLICE STATION, MEDICAL COLLEGE,
KOZHIKODE, PIN - 673008.
2 DISTRICT POLICE CHIEF, KOZHIKODE
OFFICE OF THE DISTRICT POLICE CHIEF,
KOZHIKODE, PIN - 673004.
3 N P KOYA HAJI
AGED 80 YEARS
S/O ABDUL RAHMAN, NEDOOLIL, KUPPERI HOUSE, PAINGOTTUPURAM,
PERINGOLAM PO, KOZHIKODE, PIN - 673571.
4 E M KOYA HAJI
AGED 86 YEARS
S/O MAMU HAJI, EDAKKOTH MEETHAL, THAZHADA HOUSE,
VELLIPARAMBA PO, KOZHIKODE, PIN - 673008.
5 P ABBAS HAJI
AGED 70 YEARS
S/O KUTTIYAMU, WESTERN HOTEL, KUTTIKKATTOOR PO,
KOZHIKODE, PIN - 673008.
WP(C) NO. 43230 OF 2023 2
6 MC SAINUDHEEN HAJI
AGED 65 YEARS
S/O MUHAMMED, MAYINGOTTU CAHALIL, PUVATTUPARAMBA PO,
KOZHIKODE, PIN - 673008.
7 AM ABDULLAKKOYA
AGED 60 YEARS
S/O MUHAMMED PADINJARAYIL, MUNNANGAL THAZHAM,
KUTTIKKATTOOR PO, KOZHIKODE, PIN - 673008.
8 AV KOYA HAJI
AGED 65 YEARS
S/O AHAMMED HAJI, ACHAMVEETTIL HOUSE, POOVATTUPARAMBA P.O,
KOZHIKODE, PIN - 673008.
9 C MAMUKKOYA
AGED 45 YEARS
S/O HAMEED, CHETTIYAM VEETTIL HOUSE, KUTTIKKATTOOR PO,
KOZHIKODE, PIN - 673008.
10 ALAVI HAJI POTHATHU
AGED 60 YEARS
S/O MOIDEENKUTTY POLACHERITHAZHAM HOUSE, KUTTIKKATTOOR PO,
KOZHIKODE, PIN - 673008.
11 E M SALEEL
AGED 35 YEARS
S/O EM KOYA HAJI, THAZHADA HOUSE, VELLIPARAMBA P.O,
KOZHIKODE, PIN - 673008
12 EM ABDU SAMAD
AGED 45 YEARS
S/O E M MUHAMMED HAJI, EDAKKOTH MEETHAL HOUSE,
VELLIPARAMBA PO, KOZHIKODE, PIN - 673008.
*ADDL R13 KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P ROAD,
KALOOR, COCHIN-682017.
*ADDL. R13 IS IMPLEADED AS PER ORDER DATED 18.01.2024 IN IA
4/2024 IN WP(C) 43230/2023
BY ADVS.
R.SUDHISH
M.MANJU(K/003562/1999)
S.RAMESH BABU (SR.)(R-281)
P.RAVINDRA NATH(R-523)
N.KRISHNA PRASAD(K/885/2004)
WP(C) NO. 43230 OF 2023 3
SRI.JAMSHEED HAFIZ, SC
SRI.P.M SHEMEER, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 43230 OF 2023 4
JUDGMENT
The 'Kuttikkattoor Muslim Jama-ath Committee' is a Society registered under the Societies Registration Act, 1860. They contend that they are a registered Wakf entity and are managing properties designated for religious and charitable purposes.
2. The petitioners contend that there was a dispute before the Wakf Tribunal with regard to the alienation of certain properties owned by the petitioners to the Kuttikkattoor Muslim Yatheem Khana in the year 1991. The Tribunal took the view that the alienation without obtaining permission under Section 51(1)(a) of the 1995 Act is prohibited under law and proceeded to set aside the document No.139/1999 by which the property was transferred.
3. The order passed by the Tribunal was challenged before this Court, and a Division Bench of this Court by Ext.P1 judgment dated 1.11.2023 rejected the revision petition and confirmed the order passed by the Tribunal.
4. The petitioners in the writ petition assert that they hold possession of various landed properties, which contain buildings such as WP(C) NO. 43230 OF 2023 5 Arabic Colleges, Aided Schools, commercial buildings etc. They refer to Ext.P2 possession certificate issued by the Village Officer, Ext.P3 order issued by the Secretary, Peruvayal Grama Panchayath and Ext.P4 building tax receipt to substantiate that pursuant to the order passed by this Court, they have affected mutation in their favor and are exercising legal possession.
5. According to the petitioners, on 16.12.2023 while they were performing the duties as the office bearers of the Committee, the respondents 3 to 5 forcefully entered the office premises and threatened the petitioners with physical harm. A representation was submitted before the police, a copy of which is produced as Ext.P9; however, no effective protection was granted. They contend that the party respondents may again trespass into their property and may attempt to take forcible possession of the property which is in their possession. It is on these assertions that this writ petition is filed seeking the following reliefs:-
a. Issue a writ of mandamus or any other appropriate writ or order commanding the respondents 1 and 2 to afford proper and adequate police protection to the life and property of the petitioners and other office bearers of the Kuttikkattoor Muslim Jama-ath Committee.
6. A counter affidavit has been filed by respondents 3 to 12. They contend that from the date of execution of document No.139/1999 on WP(C) NO. 43230 OF 2023 6 25.2.1999, the disputed property has been in the absolute possession and enjoyment of the 'Kuttikkattoor Muslim Jama-ath Committee'. They refer to Ext.R4(g) possession certificate to substantiate their contention. It is contended that all the establishments situated in the above property are run by the Yatheem Khana Committee. Suppressing the fact that the respondents are in possession of the property and on the strength of Ext.P1 judgment, they have approached this Court and filed this writ petition on 20.12.2023 and secured an interim order of police protection. It is stated that on 23.3.2023, the petitioners, with the assistance of police, broke open the lock of the office buildings and took illegal possession of the same. It is contended that the petitioners have abused the process of this Court with the assistance of the police personnel and have illegally obtained physical possession of the properties possessed by the Yatheem Khana. Immediately thereafter, Ext.R4(j) complaint was lodged before the police and the higher authorities. It is their request before this Court that the petitioners are to be ordered to restore back the possession of the properties as the dispossession had happened pursuant to the interim order passed by this Court.
7. An additional counter affidavit has also been filed by respondents 3 to 12, reiterating the very same contentions. WP(C) NO. 43230 OF 2023 7
8. A reply affidavit has been filed by the petitioners stating that pursuant to the order passed by this Court as Ext.P1, the Yatheemkhana Committee has voluntarily handed over the property to the office bearers of the Jama-ath Committee, and since then, the petitioners and the office bearers have been managing and looking after the day to day affairs of the orphanage and other properties.
9. The learned Standing Counsel appearing for the Wakf Board has placed on record a statement as directed by this Court. It is stated that pursuant to the order passed by this Court, the Board, in its meeting dated 9.1.2024 has taken a decision to cancel the registration Number allotted to 'Kuttikkattoor Muslim Yatheem Khana.'
10. Sri.P.Viswanathan, the learned Senior Counsel appearing for the petitioners, submits that in pursuance to the order passed by this Court in CRP(Waqf), possession was peacefully handed over to the petitioners herein, and the petitioners have been affected mutation in their favor and is paying tax. It is submitted that as per the order passed by the Tribunal as confirmed by this Court, there is no justification on the part of the party respondents in obstructing the functioning at the Jama-ath or in threatening the petitioners with bodily harm.
11. Sri.Ramesh Babu, learned Senior Counsel appearing for WP(C) NO. 43230 OF 2023 8 respondents 3 to 12 has vehemently opposed the submissions. He would highlight the fact that the writ petition was filed on 20.12.2023 and the petitioners managed to secure an interim order on the same day. Armed with the said interim order, the petitioners, with the connivance of the police, trespassed into the property and forcefully dispossessed the officer bearers of the Muslim Yatheem Khana from the property, which they were managing from 1999. According to the learned senior counsel, nowhere in the writ petition has it been stated in clear terms that after the passing of the judgment by this Court, possession was handed over voluntarily. It was after the counter affidavit was filed, that the petitioners have taken a stand in the reply affidavit that the possession was handed over by the Yatheem Khana members to the Muslim Jama-ath Committee. It is submitted that, it is only just and proper and in the interest of justice that the possession of the property is restored back to the party respondents.
12. The learned Counsel appearing for the Board, however, supported the submissions of the learned counsel appearing for the petitioners.
13. I have considered the submissions advanced and have gone through the records. I find that a Division Bench of this Court by Ext.P1 judgment has confirmed the order passed by the Tribunal. It is admitted by WP(C) NO. 43230 OF 2023 9 the respondents themselves that the property covered under the deed which was set aside is now in the possession of the petitioners. The petitioners have also produced records before this Court evidencing the fact that they are in possession of the property. The respondents, on the other hand, have a contention that the possession was taken by force on the strength of the interim order passed by this Court.
14. The documents produced by the petitioners before this Court clearly disclose that the revenue authorities and the local authority have acknowledged that the petitioners are in possession of the property in dispute. There is an absolute paucity of materials before this Court to conclude that the party respondents have been dispossessed by the petitioners on the strength of the interim order passed by this Court.
15. The Apex Court in P. R. Muralidharan and Others v. Swami Dharmananda Theertha Padar and Others [2006 (4) SCC 501] has held that this Court cannot determine disputed questions of fact as it is beyond the scope and purport of the jurisdiction of the High Court while exercising powers under Article 226 of the Constitution of India.
16. In Moran. M. Baselios Marthoma Mathews II and others v. State of Kerala and Others [2007 (6) SCC 517], the Apex Court considered the question whether this Court should decide disputed WP(C) NO. 43230 OF 2023 10 questions as regards title or possession of the parties to the lis. It was held as follows in paragraph 12 of the judgment.
xxxx xxxx xxxx
12. xxxxxxxxxx Such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of Churches could not have been the subject - matter for determination by a writ court under Art.226 of the Constitution of India
17. The principles laid above were followed in Raman and Others v State of Kerala [2019 (1) KHC 169].
18. In view of the discussion above, it would not be proper for this Court to conduct a roving enquiry to determine the question as to whether the respondents were illegally dispossessed by the petitioners on the strength of the interim order passed by this Court. The party respondents can very well raise their contentions before the jurisdictional Civil Court if so advised, and secure appropriate remedies by letting in evidence. Such right is reserved, and it is made clear that this Court has not delved into the merit of the contentions raised by the party respondents that they have been forcibly dispossessed.
19. To prevent any further law and order situation arising in the future, this writ petition can be disposed of by making the interim order WP(C) NO. 43230 OF 2023 11 dated 20.12.2023 absolute.
This writ petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE Sru WP(C) NO. 43230 OF 2023 12 APPENDIX OF WP(C) 43230/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE COMMON ORDER DATED 01/11/2023 PASSED IN CRP(WAKF) NO.25 OF 2020 & CRP(WAKF) NO.28 OF 2020 BY THIS HON'BLE COURT. Exhibit P2 A TRUE COPY OF THE POSSESSION CERTIFICATES WITH RESPECT TO PROPERTIES HELD BY THE PETITIONER COMMITTEE DATED 12/12/2023 AND 17/06/2022 ISSUED BY THE VILLAGE OFFICER, KUTTIKATTOOR. Exhibit P3 A TRUE COPY OF THE ORDER NO. JC6-566/23 DATED 21/02/2023 PASSED BY THE SECRETARY, PERUVAYAL GRAMA PANCHAYAT.
Exhibit P4 A TRUE COPY OF THE BUILDING TAX RECEIPTS DATED 03/03/2023 EVIDENCING PAYMENT OF BUILDING TAX BY THE PETITIONER COMMITTEE CONCERNING THE BUILDINGS OWNED BY THEM.
Exhibit P5 A TRUE COPY OF THE PROCEEDINGS NO.
TLKKKD/1451/2022-G3 DATED 09/06/2022 PASSED BY THE TAHSILDARY (LAND RECORDS), KOZHIKODE. Exhibit P6 A TRUE COPY OF THE ORDER NO. A9-3223/2021/KKD DATED 06/01/2022 PASSED BY THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD.
Exhibit P6(a) A TRUE COPY OF THE ORDER DATED 10/01/2023 OF THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD ISSUED AS A CORRIGENDUM CORRECTING A TYPOGRAPHICAL ERROR IN EXHIBIT P6 ORDER.
Exhibit P7 A TRUE COPY OF THE COMMUNICATION DATED 25/01/2022 HAVING NO. A5-1063/CR ISSUED BY THE KERALA STATE WAQF BOARD.
Exhibit P8 A TRUE COPY OF THE LICENSE AGREEMENT EXECUTED BY BASHEER HAJI A TENANT WITH THE PETITIONER COMMITTEE DATED 08/11/2023.
Exhibit P9 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 1ST AND 2ND WP(C) NO. 43230 OF 2023 13 RESPONDENTS DATED 16/12/2023.
Exhibit P10 A TRUE COPY OF THE BROCHURE RELATING TO THE EVENTS SCHEDULED TO BE CONDUCTED BY THE THIRD PETITIONER COMMITTEE BETWEEN 16TH JANUARY TO 19TH JANUARY 2024.
Exhibit P11 A TRUE COPY OF THE BROCHURE PRINTED BY THE RESPONDENTS 3 TO 12 RELATING TO A MEETING SCHEDULED ON THE SAME DATES AS MENTIONED IN EXHIBIT P10.
Exhibit P12 A TRUE COPY OF THE REPRESENTATION DATED 14/01/2024 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.
Exhibit P13 A TRUE COPY OF THE ORDER DATED 11/01/2024 PASSED BY THE WAKF BOARD.
RESPONDENTS EXHIBITS Exhibit.R4(a) True copy of the Deed No. 139/1999 dated 25.2.1999.
Exhibit.R4(d) True copy of the Judgment in O.S. No. 72 of 2006 dated 24.12.2009.
Exhibit.R4(i) True copy of the letter issued by Employment Provident Fund Organisation, Kozhikode dated 30.1.2020.
Exhibit.R4(j) True copy of the complaint filed before the Medical College Police Station dated 23.12.2023.
Exhibit.R4(k) True copy of the acknowledgement dated 23.12.2023 issued by the 1st respondent Police. Exhibit.R4(m) True copy of the acknowledgement receipt issued by the District Police Chief dated 26.12.2023. Exhibit.R4(n) True copy of the decision allegedly written in the Case Diary kept in the 1st respondent Police.
Exhibit.R4(o) True copy of the letter issued by 3rd WP(C) NO. 43230 OF 2023 14 petitioner to the Manager of ICICI Bank, Medical College branch dated 25.12.2023 praying for freezing of account of Kuttikkattoor Muslim Yatheemkhana Committee.
Exhibit R4(l) True copy of the complaint filed before the District Police Chief dated 26.12.2023.
Exhibit R4 (g) True copy of the possession certificate issued by the Kuttikkattoor Village Office dated 25.8.2020.
Exhibit.R4(h) True copy of the certificate issued by the Indian Overseas Bank, Chevayur Branch, Medical College, Kozhikode dated 9.6.2020.
Exhibit-R4(e) True copy of the order dated 13.8.2010 in IA.No.37/2010 in OS 72/2006 of the Wakf Tribunal in an application under Order 9, Rule 9. Exhibit.R4(f) True copy of the Common Order in W.O.A. No. 42 of 2019 and W.O.A. No. 56 of 2019 dated 10-07-2020.
Exhibit R4(c) True copy of the order of the Honourable Wakf Tribunal dismissing the application for amendment dated 5.2.2009.
Exhibit R4(b) True of the Order dated 18.11.2009 in I.A. No. 436 of 2009 in O.S. No. 72 of 2006, dismissing the application filed by the Kuttikkattoor Muslim Jama-ath Committee.
Exhibit R4 (p) True copy of the notice dated 13.12.2014 regarding the function was inaugurated by the then Chief Minister.
Exhibit R4 (q) True copy of the Renewal of Registration Certificate dated 27.06.2023.
Exhibit R4 (r) True copy of the notice dated 1.11.2023. Exhibit R4 (s) True copy of the newspaper item dated WP(C) NO. 43230 OF 2023 15 13.12.2023 in Chandrika daily showing the inauguration of the office by one of the MLA's of the Legislative Assembly.
Exhibit R4 (t) True copy of the notice regarding the function scheduled on 26th and 27th of December, 2023.