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2008 DIGILAW 428 (KER)

Binshad Ibrahim v. State of Kerala

2008-07-21

V.RAMKUMAR

body2008
ORDER V. Ramkumar, J. 1. Petitioner, who claims himself to be a member and beneficiary of Wakf by name Vellarapilly Puthempally Muslim Jama ath allegedly constituted as a Wakf by the Muslim residents of Kizhakkumbhagam Village, challenges the order dated 28/06/2001 passed by the Sub Divisional Magistrate, Kochi in proceedings numbered as C.2697/2001. 2. The petitioner would contend as follows: The Jama ath had purchased 5 cents of land for construction of a Niskara Pally. The petitioner's family also contributed fund for the said purpose. While the building was being constructed, certain residents objected to the same and based on the report of the Tahsildar and the Superintendent of Police, Aluva Rural, the Sub Divisional Magistrate, Fort Kochi convened a meeting of the religious leaders and on 28/06/2001 passed an order prohibiting use of that building for prayer or for any purpose other than religious teachings to students below the age of 15 years in the Madrassa. The directions in the said order are opposed to Annexure A3 deed of Wakf and also the provisions of the Wakf Act. Religious prayers are integral part of the religious belief and practice of the Muslim community and therefore the prohibition of conducting religious prayer in a place of worship is violative of the fundamental rights of the petitioner. Moreover, the said order, passed by the Sub Divisional Magistrate, is one under S.144 of the CrPC and such an order cannot be in force for indefinite period as has been held by the Apex Court in Acharya Jagadeeswaranath v. Police Commissioner, 1984 KHC 7 : AIR 1984 SC 51 : 1984 KLT SN 7 : 1983 (4) SCC 522 : 1984 SCC (Cri) 1 : 1983 CriLJ 1872 : 1984 1 Crimes 318 and by this in Kanjirapally Panchayat v. Purathode Panchayat, 1984 KHC 122 : 1984 KLT 204 : 1984 KLJ 84 . The petitioner who has been performing Namaz in a room in the aforesaid building is prevented by the police in doing so stating that the prohibition order passed by the Sub Divisional Magistrate on 28/06/01 is still in force. The Sub Divisional Magistrate has not considered the request of the local residents to revoke or rescind the said order which could have been passed under S.144 CrPC only in an emergent situation. There is no communal tension in the aforesaid area. The Sub Divisional Magistrate has not considered the request of the local residents to revoke or rescind the said order which could have been passed under S.144 CrPC only in an emergent situation. There is no communal tension in the aforesaid area. Hence the impugned order is liable to be set aside. 3. The 2nd respondent (M. K. Velayudhan) has filed a counter affidavit detailing the circumstances under which the Sub Divisional Magistrate passed the impugned order. I am inclined to accept the contentions of the 2nd respondent. 4. The order dated 28/06/2001 in C.2697/01 passed by the Sub DivisionalMagistrate, Kochi is not one issued or purported to be issued under S.144 CrPC. The petitioner was not a party to the said order and he cannot question the same now after 7 years of passing the said order. The order was passed by the Sub Divisional Magistrate on the basis of an agreement dated 28/06/01 entered into between the members of the Muslim and Hindu communities of that locality. Annexure R2(a) is the said agreement in which the Hindu community was represented by 5 persons and Muslim community was represented by 8 persons making up a total of 13 persons. There is a Vana Durga Nagayakshi Temple at Parapuram in Kizhakkumbhagam Village. There is also a Bhajana Madom adjoining the said temple where the Hindu devotees have been worshipping from ancient time onwards. The temple is administered by the Kerala Kshethra Samrakshana Samiti which is an All Kerala Organisation which works for the protection of temples all over the State. The site in question is situated within the limits of the Kanjoor Grama Panchayat. When the construction of the building of the Madrassa was started in 2001, there arose some law and order problem which ultimately came up before the Sub Divisional Magistrate, Kochi. When the matter was pending before the Magistrate, members of both the communities entered into Annexure R2(a) agreement dated 28/06/2001 and it was on the basis of the said agreement that the Sub Divisional Magistrate passed the impugned order way back in the year 2001. One of the signatories to the said agreement namely K. P. Aliyar, who was the convener of the Puthempally Jama ath filed a writ petition before this Court as WP (C) No. 2964/2004 seeking police protection for conducting prayers in the said building. One of the signatories to the said agreement namely K. P. Aliyar, who was the convener of the Puthempally Jama ath filed a writ petition before this Court as WP (C) No. 2964/2004 seeking police protection for conducting prayers in the said building. The 2nd respondent herein was the 4th respondent representing the temple in that petition. As per judgment dated 25/11/07, a Division Bench of this Court dismissed the writ petition recognizing the fact that an agreement was entered into by the leaders of the community to avoid communal tension. This Court refused to give any police protection in violation of Annexure R2(a) agreement. 5. The five conditions of the said agreement which was also referred to by the Division Bench is as follows: "1. The Madrassa in question must be used only for the study of Khuran for students who are below the age of 15. 2. Such religious studies can be conducted only during the day time and under inevitable circumstances it can be extended only up to 8 O'clock in the night. 3. Loud speakers should not be used in the Madrassa and no Mosque or Masjid should be constructed there. 4. The 5 cent of property purchased for the Madrassa alone can be used for the above purpose and in the adjoining vacant space shall not be used for any purpose connected with the Madrassa. 5. Any temporary shed / building can be constructed there only after getting permission from the Kanjoor Grama Panchayat."t 6. If the impugned order dated 28/06/01 passed by the Sub Divisional Magistrate was one under S.144 CrPC, then nothing prevented the petitioner in the above writ petition to contend that the said order had life only for two months. But what we find is that even as late as on 25/11/04, a Division Bench of this Court refused to give Police protection giving primacy to the agreement entered into between the two communities to avoid a communal clash in that area. 7. Under these circumstances, the petitioner cannot be permitted to disturb the peace and tranquillity in that area where we find a harmonious and peaceful coexistence of the members of the two religious communities. The attempt of the petitioner is to bring about a breach of the peace in that locality and the same cannot be permitted. 7. Under these circumstances, the petitioner cannot be permitted to disturb the peace and tranquillity in that area where we find a harmonious and peaceful coexistence of the members of the two religious communities. The attempt of the petitioner is to bring about a breach of the peace in that locality and the same cannot be permitted. I see no reason to interfere with the impugned order passed by the Sub Divisional Magistrate 7 years ago in the best interests of the community at large. This revision is accordingly dismissed.