Kerala High Court
The Secretary vs State Of Kerala on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 14150 OF 2019
PETITIONER/S:
THE SECRETARY,
MARAD NUZRATHUL IKHVAN SANGHAM REG. NO. 358/1999
MOIDEEN KOYA, S/O. ABDUL RAHIMAN, AGED 55 YEARS,
PAREECHINTAKATH, ARAKINAR P.O, KOZHIKODE
DISTRICT.
BY ADVS.
K.MOHANAKANNAN
A.R.PRAVITHA
D.S.THUSHARA
H.PRAVEEN (KOTTARAKARA)
T.S.NEJIMUDDIN
T.V.NEEMA
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, HOME
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,
CIVIL STATION, KOZHIKODE 673 001
3 THE SPECIAL OFFICER,
CIVIL ADMINISTRATION CONTROL ROOM, MARAD
KOZHIKODE DISTRICT 673 028
4 DISTRICT POLICE CHIEF,
CALICUT CITY, KOZHIKODE DISTRICT 673 028
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SABEENA P. ISMAIL, GOVERNMENT PLEADER()
SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL()
SMT.SABEENA P ISMAIL-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.04.2024, ALONG WITH WP(C).21949/2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.14150 & 21949 of 2019
:2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 21949 OF 2019
PETITIONER/S:
THE DISTRICT COLLECTOR,
COLLECTORAT,KOZHIKODE
BY ADVS.
GOVERNMENT PLEADER
ADVOCATE GENERAL OFFICE KERALA
SABEENA P.ISMAIL(K/994/2007)
SRI.ASOK M.CHERIAN,SC,KERALA HEALTH RES(SC-
1170)
RESPONDENT/S:
1 THE KERALA STATE COMMISSION FOR MINORITIES,
MANGALAM LN., JAWAHAR NAGAR, SASTHAMANGALAM,
THIRUVANANTHAPURAM-695 010
2 C.ABDUL KARIM,
SECRETARY, NUZRATHUL IQWAN SOCIETY, MARAD,
KOZHIKKODE-673 018
3 ADDL. R3. PRESIDENT
NUZRATHUL IQWAN SOCIETY, MARD, KOZHIKODE- 673
018, MUHAMMED THWAHA, S/O. ABDULLAKUTTY, AGED
38 YEARS, RESIDING AT PUTHENPEEDIAKKAL,
ARAKINAR P.O., KOZHIKODE DISTRICT. ADDL. R3 IS
IMPLEADED AS PER THE ORDER DATED 04.04.2022 IN
I.A. 1/2022.
BY ADV K.MOHANAKANNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.04.2024, ALONG WITH WP(C).14150/2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.14150 & 21949 of 2019
:3:
JUDGMENT
[WP(C) Nos.14150/2019 & 21949/2019] The above writ petitions are pertains to identical issue and connected with each other. Therefore, those writ petitions were heard together. The first writ petition was preferred by the Secretary, Marad Nuzrathul Ikhvan Sangham, Kozhikode and the second writ petition was preferred by the District Collector, Kozhikode. For the purpose of reference, the documents produced along with WP(C) No.14150/2019 is considered.
2. The petitioner in WP(C) No.14150/2019 is the Secretary of Marad Nuzrathul Ikhvan Sangham, which is having registration under Societies Registration Act. Under the Society, there is a Juma Masjid at Marad beach and also a Madrassa called Hidayathul Ikhvan Madrassa in Re.sy. No.10/1 of Bepur village in Kozhikode District, those were established in the year 1960. Later, some untoward incidents occurred in the year 2003 and that resulted in the death of eight persons and crime No.82/2003 of Bepur Police Station was registered. Under such background, the District Collector being the District Magistrate WP(C) Nos.14150 & 21949 of 2019 :4: taken possession of the Juma Masjid and its premises as per Ext.P1 proceedings thereby the petitioner society was not in a position to function the Madrassa.
3. In the light of such developments for conducting Nabi dinam in the year 2012 in the Madrassa premises the petitioner preferred a representation before the 2 nd respondent District Collector, who had granted permission as per Ext.P2. Simultaneously, the petitioner approached the State Commission for Minorities (in short Minority Commission). On considering such application, the Minority Commission has call for report from the District Collector. Accordingly, a report was filed which points out that, there is a likelihood of breach of peace in the area if Madrassa is allowed to open. On analysing the report, the Minority Commission found that, there was no issues of any breach of peace in the area or any communal riot for the last 15 years and discarded the report and directed the 2 nd respondent to permit the functioning of Madrassa under the Police protection, if necessary, as per Ext.P3 order. Being aggrieved by that, the District Collector preferred WP(C) No.29419/2019, whereby describing the powers vested on the Commission under Section 9 WP(C) Nos.14150 & 21949 of 2019 :5: of the Kerala State Commission for Minorities Act, 2014 and asserts that, the Commission is having powers only recommendatory in the nature and no positive direction can be issued. In support of the contentions raised in the writ petition, the District Collector has produced a report obtained by the District Police Chief from the Sub Divisional Officer. The report obtained was in the year 2018 as seen in Ext.P2 of WP(C) No.21949/2019. On considering such report, a report was preferred by the District Collector before the Minority Commission defending prayer sought by the petitioner, in WP(C) No.14150/2019. That was declined by the Minority Commission and Ext.P3 order was passed by the Commission.
4. In the meanwhile, the petitioner has approached the 2nd respondent for obtaining permission to construct the compound wall and the building of Madrassa. By order dated 21.10.2010, a permission was granted by the 2 nd respondent as per Ext.P4. Thereafter, on completion of the repairing works and stated to be on allowing the request made by the petitioner before the Special Officer, classes in Madrassa commenced. On knowing this, the 2nd respondent issued Ext.P5 stop memo. Being aggrieved by WP(C) Nos.14150 & 21949 of 2019 :6: that, the petitioner once again approached the Commission by filing I.A. No.1/2019 in MC(OP) No.76/2016. On considering such interim application, the Commission found that the functioning of Madarassa will not affect the breach of peace in the area and directed respondents 2 and 3 to ensure that, permission is granted to the Madrassa, as per order dated 28.02.2019, which is produced as Ext.P6. In the light of such order, the petitioner has approached the District Collector as per Ext.P7. Though the writ petition was preferred in the year 2019, the respondent has not chosen to prefer any counter affidavit refuting the contentions instead they have chosen to prefer WP(C) No.21949/2019 challenging the order dated 03.08.2018 in I.A, No.3/2018 in MC(OP) No.76/2016.
5. However, subsequent order passed by the Minority Commission as per Ext.P6 was not challenged. The petitioner in this writ petition has preferred counter affidavit to the contentions in WP(C) No.21949/2019 being the 2 nd respondent. Whereby contended that order impugned in WP(C) No.21949/2019 i.e., Ext.P3 dated 03.08.2018, After passing the said order, yet another order was also passed by the Commission on 28.02.2019, WP(C) Nos.14150 & 21949 of 2019 :7: that is not challenged. In the order dated 28.02.2019, the Minority Commission specifically noticed that the District Collector has failed to comply with the directions contained in the order and there is an inaction on the part of the District Collector in implementing the directions.
6. Heard Sri. K. Mohanakannan, the learned counsel appearing for the petitioner and Sri. K.B. Ramanand, the learned Special Government Pleader for the respondent.
7. The learned Special Government Pleader appeared on behalf of the respondents in WP(C) No.14150/2019 and for the petitioner in WP(C) No.21949/2019 drawn my attention to a reported decision in Bal Patil and another v. Union of India and others [(2005) 6 SCC 690], whereby tried to contend that, the commission set up under the Act has several functions to perform which are provided in Section 19. The functions entrusted are for ensuring progress and development of the minorities and protect their religious, cultural and educational rights. There is no specific function conferred under Section 9 on the commission to identify any community as a minority and recommend to the Central WP(C) Nos.14150 & 21949 of 2019 :8: Government that it be so notified under Section 2E of the Act. On considering the general functions of the commission enumerated under Section 9, which are only illustrative and not exhaustive. Thereby the recommendation made by the Minority Commission in the matter of an order can have no binding effect.
8. Here in the case in hand, the petitioner Society is intend to function for their religious activity as well as religious education in the Mosque as well as in Madrassa which was taken in possession by the 2nd respondent as per Ext.P1 order. That was consequent to an unfortunate incident occurred in the year 2003. Thereafter, in the year 2012, permission was granted to conduct Nabidinam in Madrassa premises on a strict surveillance of the Police. After 2003, neither a report of untoward instances is received nor any further rioting is reported. Under such circumstances, the petitioner approached the District Collector for granting permission to conduct the Madrassa on regular basis before the Minority Commission. As per Ext.P3 order, the Minority Commission though has advisory powers, has directed the District Collector to take the adequate decision in that respect and to report the same within the time stipulated. WP(C) Nos.14150 & 21949 of 2019 :9:
9. Even thereafter, the District Collector has not taken any steps to open the Madrassa rather prefer to challenge the same, that too in the light of Police report obtained on 29.10.2018 that reveals some assumptions with respect to communal unrest. However, there is no specific mention with respect to any untoward incident occurred after 2003. This is the circumstances in which the petitioner approached the Minority Commission once again as per I.A. No.1/2019 in M.C.OP No.76/2016. The commission as per Ext.P6 order further directed the District Collector to take adequate steps to commence peaceful operation of the Madrassa and to report the same. On obtaining such order, the petitioner preferred Ext.P7 representation before the District Collector on 25.03.2019.
10. Having considered the circumstances a quietus to the issue has to be given. Thereby I am not considering the challenge raised against the powers exercised by the Minority Commission, but prefer to direct the District Collector, the 2 nd respondent in WP(C) No.14150/2019 to address the grievance voiced by petitioner in Ext.P7. The alleged incident occurred only in the year 2003. Thereafter, no specific report is obtained by the WP(C) Nos.14150 & 21949 of 2019 : 10 : District Collector with respect to any continued aberration of the peace. Thereafter, the situation of unrest is under control. Even then, no permission is granted to religious education activities in Madrassa which will hold not good for the well being of the community and that area at large.
11. Under such circumstances, I direct the 2 nd respondent in WP(C) No.14150/2019 to consider Ext.P7 representation on the basis of obtaining a comprehensive report from the Police with respect to communal harmony in that area and pass orders on Ext.P7 within three months from the date of receipt of a copy of this judgment.
The writ petition is disposed of accordingly.
Sd/-
P.M. MANOJ JUDGE ncd WP(C) Nos.14150 & 21949 of 2019 : 11 : APPENDIX OF WP(C) 14150/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 8-5-2003 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DT. 01/2012 EXHIBIT P3 TRUE COPY OF THE ORDER OF THE MINORITY COMMISSION IN IA 3/2018 IN MC(OP) 76/2016 DT. 3-8-2018 EXHIBIT P4 TRUE COPY OF THE ORDER DT. 21-10-2010 PASSED BY THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER DT. 13-12-2018 SENT BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE ORDER DT. 28-2-2019 ISSUED BY THE KERALA STATE MINORITY COMMISSION.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DT.
25-3-2019 SENT BY THE PETITIONER TO
THE DISTRICT COLLECTOR, FOR
IMPLEMENTATION OF EXT. P6 ORDER.
WP(C) Nos.14150 & 21949 of 2019
: 12 :
APPENDIX OF WP(C) 21949/2019
RESPONDENT EXHIBITS
EXHIBIT R3(a) True copy of the order dt:28.2.2019
issued by the Kerala State Minority
Commission
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLIANT MCOP NO.76
OF 2016 FILED BY THE 2ND RESPONDENT
BEFORE THE 1ST RESPONDENT
EXHIBIT P2 TRUE COPY OF THE REPORT NO.D1-
72696/2018 CC DATED 21.11.2O18 OF THE
DISTRICT POLICE CHIEF SUBMITTED BEFORE
THE 1ST RESPONDENT BY THE PETITIONER
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
03.08.2018 IN I.A.NO.3/2018 IN MCOP
NO.76/2016 PASSED BY THE 1ST
RESPONDENT
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION
NO.G1920-6564/2018/SB,DATED 07/12/2018 OF THE ADDITIONAL DIRECTOR GENERAL OF POLICE (INTELLIGENCE)