Kerala High Court
Hamza U.P. vs District Collector on 15 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942
WP(C).No.6763 OF 2013(S)
PETITIONER:
HAMZA U.P., AGED 45 YEARS,
S/O.U.P.MUHAMMED, R/AT KUNIYA, PERIYA P.O.,
PERIYA VILLAGE, KASARAGOD DISTRICT.
BY ADVS.SRI.KODOTH SREEDHARAN
SRI.RAHUL SASI
RESPONDENTS:
1 DISTRICT COLLECTOR, KASARAGOD-671 306.
2 DISTRICT MEDICAL OFFICER,
AYURVEDA, KASARAGOD-671 306.
3 SUPERINTENDENT OF POLICE, KASARAGOD-671 306.
4 CIRCLE INSPECTOR OF POLICE
HOSDURG, KASARAGOD DISTRICT-671 306.
5 SUB INSPECTOR OF POLICE
BEKAL, KASARAGOD-671 306.
6 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HOME AFFAIRS, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM-685 001.
7 SHERIEF MOHAMMED,
S/O.MOHAMMED, R/AT ADUKAM, KUNIYA P.O.,
PERIYA VILLAGE, KASARAGOD DISTRICT-671 121.
ADDL. PALLIKKARA GRAMA PANCHAYATH,
R8 PALLIKKARA P.O., KASARAGOD - 671 316,
REPRESENTED BY ITS SECRETARY.
IMPLEADED AS PER ORDER IN I.A.NO.17206/13 DATED 15.1.21.
SRI. TEK CHAND, SR GP FOR R1 TO R6,
SRI.M.RAMESH CHANDER (SR) FOR R7
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.6763 of 2013
2
JUDGMENT
Dated this the 15th day of January, 2021
S.Manikumar, C.J.
Instant public interest litigation is filed for a mandamus directing
the respondents to consider Exhibit P8 and to take appropriate action.
Exhibit P8 is a manual of guidelines to prevent and control communal
disturbances and to promote communal harmony-2002, issued by the
Home (SS-A) Department, Government of Kerala.
2. Petitioner has also sought for a direction to take corrective
action against Mr.Sherief Mohammed, respondent No.7, based on Exhibits
P8 and P9.
3. Exhibit P9 is an order passed in HRMP No.1920 of 2011 dated
15.3.2012 by the Kerala State Human Rights Commission.
4. Petitioner has also sought for a direction to the respondents to
take action against Mr.Sherief Mohammed, respondent No.7, under the
Religious Institutions (Prevention of Misuse) Act, 1988 and the Places of
Worship (Special Provisions) Act, 1991.
5. The petitioner is aggrieved by the inaction on the part of
respondents 1 to 6, in not taking corrective action against Mr.Sherief
Mohammed, respondent No.7, from running an unauthorized psychic
W.P.(C)No.6763 of 2013
treatment and spiritual centre rendering 'Jinn treatment' and dispensing
medicines, as well as conducting a prayer hall at his residence, without
obtaining any permission from any authorities and duping the public.
According to the petitioner, Mr.Sherief Mohammed, respondent No.7, is
running a mosque of his own defying the Jama-ath and attempting to
create communal disharmony. According to the petitioner, though the
respondents, statutory authorities are bound to act as per Ext.P8 on the
illegal activities, no action has been taken so far. Hence the writ petition
is filed seeking for the prayers stated supra.
6. A counter affidavit dated 9.12.2013, has been filed on behalf of
the Circle Inspector of Police, Hosdurg and Sub Inspector of Police,
Bekal, Kasaragod, respondent Nos.4 and 5, wherein, it is stated as
hereunder:
"3. It is submitted that the writ petitioner is an active
member of Kuniya Sharaful Islam Jama-ath Committee, who
had made several complaints against the 7 th respondent.
There were so many complaints against running an
unauthorised psychic treatment, spiritual centre, rendering
'Jinn' treatment, dispensing medicine after treatment,
conducting prayers, by the 7th respondent. It is a fact that the
complaints have come either from the office bearers or the
members or well wishers of Kuniya Sharaful Islam Jama-ath
Committee, which has openly admitted that they have strong
W.P.(C)No.6763 of 2013
objections in the activities of the 7th respondent, who is
running a mosque unauthorisely, under pretext of a Madrasa
and unauthorised psychic treatment and spiritual centre being
conducted by the 7t1 respondent rendering 'Jinn' treatment
to the persons who comes to the centre. In this regard it is
also submitted that on the basis of complaint of one
K.Ibrahim Haji, S/o.Muhammad Kunhi, Kuniya, a crime
No.669/10 was registered at Bekal Police Station on
24.09.2010 under Section 143, 147, 148, 452, 324, 427 read
with 149 IPC. The allegation made was that a group of
persons came to his house at around 2.30 PM on 24.09.2010
in one autorikshaw and three motor cycles and attacked him
with deadly weapons and inflicted injuries Complainant stated
that his stern action against the treatment carried out by the
7th respondent at the spiritual centre, was the motive behind
the attack and the offence was committed by the henchmen
of the 7th respondent. The investigation revealed beyond
doubt that one Kabeer and 10 others have committed the
offence and the sole reason being enmity behind the attack
was because of the obstruction and objection made by
Ibrahim Haji with respect to arrival of females in the spiritual
centre run by the 7th respondent. After investigation, the
accused were arrested and charge sheeted which has taken
on file as CC.1256/2010 on the file of Judicial First Class
Magistrate - II. The case was splited and on trial all the
accused except A4 and A9 were acquitted. At present accused
No.4 and 9 are facing trial in CC 565/2013 and trial is yet to
be completed.
4. It is also submitted that a crime 727/2010 was also
W.P.(C)No.6763 of 2013
registered at Bekal Police Station on 15.10.2010 against the
7th respondent on the basis of a complaint filed by
Muhammed Kunhi, S/o.Abdul Khader before the Judicial First
Class Magistrate Court - II which was forwarded for the police
investigation. The gist of the allegation was that the
complainant's son Asik was suffering from epilepsy and on
the basis of local information and attracted by the
propaganda, he approached the 7th respondent for treatment.
The 7th respondent had prescribed some honey, ghee etc as
medicine claiming that he has got some divine power and he
could cure the disease, but no betterment was noticed.
Therefore the complainant stated that he realised that the 7 th
respondent had knowingly induced him through dishonest
and fraudulent means to take the treatment and the 7 th
respondent after having accepted money for treatment had
cheated him. During interrogation the complainant stated that
the prescription was not written by the 7 th respondent and no
money was also paid to him. But instead the helpers were the
scribes, who have written the prescription and that money
was asked to be deposited in an offering box. Further one
Muhammad V.K.P, S/o.Abdulla Kolavayal, who was sited as
the witness in the first information statement was also
questioned and he stated that he had approached the 7 th
respondent for diabetic treatment. Though no medicine was
given to him, 7th respondent advised him to consume sugar
powder and gave a prescription for it. The prescription was
missing from him and he did not follow the directions of the
7th respondent and that he has no other evidence to adduce
regarding the said allegation. Though efforts were made of
W.P.(C)No.6763 of 2013
find out the similar persons who had approached the 7 th
respondent for treatment which was not fruitful and ended in
vain.
5. In respect of Crime No.727/10 though the 7 th respondent
had approached this Hon'ble Court for getting anticipatory
bail he was asked to surrender before the Investigating
Officer and to get release on bail and also to appear for
interrogation as and when required. The 7 th respondent
appeared before the Investigating Officer on 12.07.2012 and
since there was no sufficient evidence against him, arrest was
not made and he was let off.
6. There was also a news paper report published in a local
evening daily, whereby the 7th respondent was accused of
causing death to one Subaida on 09.05.2011 on account of
his 'Jinn' treatment. On seeing the paper news, Ibrahim, the
husband of deceased Subaida made a complaint before the
District Police Chief, Kasaragod stating that the evening daily
had published a false news about the death of his wife and
he suspects that the office bearers of Sharaful Islam Juma
Athe are behind this. On interrogation, the said Ibrahim
disclosed that his wife was suffering from acute Kidney
Disease for quite long time and in spite of Allopathic
treatment which did not yield any result and therefore, he
approached the 7th respondent for getting some mental relief
to his wife. The condition became worse and she was shifted
to General Hospital, Kasaragod, where she succumbed to
death on account of the Kidney disease. On enquiry, it was
revealed that no medicine was given to the said Subaida by
the 7th respondent. But stated that he only gave some
W.P.(C)No.6763 of 2013
spiritual treatment or relief claiming that he has got some
Divine power. No complaint was also made by the husband or
the relatives of the deceased Subaida on account of death
against the 7th respondent. Accordingly, no action was further
taken in respect of the subject matter by the police."
7. Mr.Sherief Mohammed, respondent No.7, against whom
allegation has been made, has also filed a counter affidavit dated
25.12.2013, disputing the averments in the writ petition. Relevant
paragraphs are extracted hereunder:
"11. It is respectfully submitted that the activities of this
respondent do not in any way cause any disturbance to any
person or persons in the locality. It does not create any
communal disharmony. This respondent does not accept any
money from the persons attending his discourse. He does not
give any treatment to any person. He does not give any
money to any person. He only preaches the tenets of the
wholly Quran. According to the respondent by prayers a
person would obtain a peace of mind and a complete faith in
the Lord may also ease his pains and sufferings and ultimately
that person finds solace. He also believes adage that "more
things are wrought by prayer than the world dreams of". He
has a fundamental right under Art.25 of the Constitution to
freely profess practice and propagate religion. His fundamental
right cannot be infringed by vexatious and false allegations.
This Honourable court in the judgment reported in 2010 (1)
KLT page 746 has held as per the constitutional provision a
W.P.(C)No.6763 of 2013
person has a right to pray and propagate his ideas as to
religion even by being a part of peaceful assembly and to
move freely for such purpose. This respondent is acting strictly
within the four corners of law.
12. This mosque and Madrassa having been in existence for
the past several years and without violating any public law or
order or the provisions of any Act.
13. Without prejudice to the above contentions it is
respectfully submitted that the allegations in para 1 of the writ
petition as against this respondent is vehemently denied. The
petitioner is a person residing 2½ kilometers from the place in
question, which is also in a different panchayat. The allegation
as against this respondent is running an unauthorized psychic
treatment and spiritual centre, rendering "Jinn" treatment and
dispensing medicines are denied in toto. The allegations in
para 1 occurring against this respondent are specifically
denied.
14. The allegation in para 2 as against this respondent is
denied. They are only figment of imagination of the writ
petitioner. All the allegations relating to the fact that this
respondent is dispensing medicines and giving psychic
treatment are denied. This respondent is not aware of Ext.P1.
The petitioner has made mention of Crime No.669/2010. This
respondent is not an accused in the said case. When such an
allegation was made, this respondent made enquiries and
found that crime 669/2010 has culminated as CC 1256/10 of
JFCM-II Hosdurg and all the accused except A4 and A9, who
were absconding were acquitted. Moreover it is understood
that A4 & A9 are facing trial in the split up case. This case is
W.P.(C)No.6763 of 2013
made mention in the writ petition only to malign this
respondent who is not even an accused and on fully knowing
of the said case had ended in acquittal. This respondent
reserves his right to proceed against the writ petitioner for
defamation. Similarly crime No.727/10, which is investigated
by the police was found to be untrue. These facts would
clingingly show that these allegations made are bereft of
truth, devoid of merits and made recklessly without any
bonafides. This respondent denies the fact that he is giving
payment to Government officers including police authorities,
an allegation made recklessly.
15. Allegation in para 3 are denied. The newspaper reports do
not have any bearing and does not speak the truth. All the
allegations as against this respondent in para 3 are
vehemently denied. There is no likelihood of communal unrest.
All the persons belong to the same community. The manual
produced as Ext.P9 does not have any bearing of this case.
The manual came into effect in the year 2002. It is to prevent
communal disturbances and to promote communal hindrance.
There is no question of any communal disturbance as has
been clearly found in Ext.P2 judgment. There is not a single
case which speaks to any communal disturbance or public law
and order in the area. Mosque and Madrassa came into
existence before the manual. It therefore cannot affect the
functioning of the madrassa and mosque. The entire
allegations in para 4 as against this respondent is denied.
16. This respondent is not aware of Ext.P9 order. It is not
issued with notice to him. In Ext.P9 there no respondent is
shown. Ext.P10 is only an acknowledgement of the complaint.
W.P.(C)No.6763 of 2013
It is understood that the husband of the lady herself filed a
complaint that his wife died due to certain disease and the 7 th
respondent cannot be blamed. It is also understood that he
has filed a statement before the Bekal police station and also
the Superintendent of Police. Therefore Ext.P10 has been
pressed into service without any lien.
17. The grounds are mere repetition of facts of the writ
petition and therefore denied in toto.
18. The writ petitioner has pressed into service the places of
worship (Special Provisions) Act, 1991. Section 3 of the said
Act deals with bar of conversion of places of worship. Section
4 relates to declaration as to the religious character of certain
places of worship and bar of jurisdiction of courts. Section 6 is
the penal provision for contravening Section 3 of the Act.
Therefore this Act has no bearing on the facts of the case. The
petitioner has also made mention of the Religious Institutions
(Prevention of Misuse) Act, 1988. Section 3 of the said Act
prohibits the use of religious institution for certain purposes.
Even if the entire allegations in the writ petition are true ie.
assuming without admitting it, then also the ingredients of
Sec.3 are not made out. Section 4 of the said Act deals with
restrictions on carrying Arms and ammunition in to a religious
institution. There are no allegations in the writ petition which
would attract the provisions of the above mentioned statute.
Therefore these are made only to mislead this Honourable
Court. This respondent denies that he is doing anything in
contravention of the provisions of the Act. It is therefore
humbly prayed that this Honourable Court may be pleased to
dismiss the above writ petition with costs to this respondent."
W.P.(C)No.6763 of 2013
8. The District Collector, Kasaragod, respondent No.1 has also filed
a counter affidavit dated 27.1.2014, wherein it is stated as hereunder:
"3. It is respectfully submitted that earlier, a writ petition
No.31621/2010 was filed by one Aboobacker K.A., Kuniya
alleging that the 7th respondent herein has been running an
unauthorised psychic treatment and spiritual centre rendering
'Jinn' treatment and dispensing medicines without any
authority or licence and the authorities are not taking action
against the respondent. The said writ petition was disposed
by Exhibit P4 judgment observing that the materials now
available before the Court are insufficient to come to a
finding in favour of the petitioners' therein but it was further
observed that nobody has any right to carry on any activities
illegally and it is the duty of the official respondents to keep
constant vigilance on the activities of the respondent and to
take appropriate action in the event, any activities conducted
by the 7th respondent herein are against the provisions of
G.O(P)No.9/2002 dated 16.01.2002 or against the provisions
of any statutory enactment.
4. It is submitted that in the light of the above direction,
necessary instructions has issued to the District Police Chief,
Kasargod and the 4th respondent herein to take note of the
directions issued and take necessary actions. The 4 th
respondent has reported that psychic treatment or illegal
activities are not noticed in the so called spiritual centre
conducted by the 7th respondent as alleged. Further it is also
reported that there is no law and order or communal
W.P.(C)No.6763 of 2013
problems prevailing in the area and constant vigilance is kept
over the area in order to manage any law and order
problems likely to arise. After receiving the copy of the above
writ petition, a fresh report was called for from the 3 rd
respondent, District Police Chief, Kasargod. It has been
reported by the 3rd respondent that so many complaints have
been received against the 7 th respondent and the cases were
also registered against the 7th respondent on the basis of the
complaints received and hence the allegation that there is
gross in action on the part of the police is also false. But the
materials found on investigation are not sufficient to enter
into a clear conclusion that the alleged illegal activities
carried out by the 7th respondent are true. Since there are
several complaints against the 7th respondent the police is
having constant vigilance over his activities and making
necessary enquiries and also keeping strict watch over the
premises of the 7th respondent. The police has also reported
that the 7th respondent had filed WP(C)No.29217/2011
before this Hon'ble Court alleging police harassment by the
Inspector of Police, Hosdurg and Bekal. In the said writ
petition he had claimed that he is the Usthad in Adukkam
Moideen Mosque and Madrassa in Panayal village and alleged
that the police has been obstructing the devotees from
attending the prayer. As per the judgement dated 9.11.2011,
this Hon'ble Court observed that police shall-not interfere
with the conduct of prayers in the Mosque. It is also further
submitted that the 7th respondent has also filed a Contempt
Case No.1287/2011 alleging violation of the orders issued in
the writ petition filed by him.
W.P.(C)No.6763 of 2013
5. It is also respectfully submitted that as per the report of
the 3rd respondent, most complaints against the 7 th
respondent either came from the office bearers or the
members/well-wishers' of Kuniya Sharaful Islam Jama-at
Committee. The present petitioner and the 7th respondent are
the members of the Muslim Community and the followers of
'Sunny' customs and therefore the allegation that the
communal disharmony will cause is not correct. In close
scrutiny it is found that the petitioner and the said committee
are the sympathisers of Sunny E.K. Group, whereas the 7 th
respondent is having support of rival group A.P.Musliyar
(Kanthapuram). This is the real dispute between the
petitioner and the 7th respondent.
6. It is true that as per G.O.(P)No.217/05/Home dated
25.07.2005 any construction of religious place shall be made
only with the prior approval of the district authorities and at
the earmarked places. As per the letter No.C/1238/09 dated
21.06.2011, the Secretary of Pallikkara Grama Panchayath
had submitted a proposal to this respondent for giving NOC
for regularising the Mosque already constructed by the
Adukkamm Moideen Masjid Committee in R.S.No.683/2 of
Panayal Village, which was constructed without obtaining
prior permission. The application for issuance of NOC for
getting regularised the construction of the said Mosque was
rejected as per order No.D1/29104/11 dated 25.09.2011 of
the District Collector, Kasargod. A copy of the said
proceedings issued by the District Collector was also
forwarded to the Secretary Pallikakara Grama Panchayath
and District Police Chief, Kasargod for information and
W.P.(C)No.6763 of 2013
necessary action. Hence it is to be noted that the Mosque
constructed by the committee under the 7 th respondent is
without obtaining prior permission and therefore illegal. The
application for regularising the construction also have been
rejected as stated above. Therefore the 7 th respondent is
illegally and unauthorisedly maintaining a mosque under the
Adukkamm Moideen Masjid Committee. Since the matter is
pending before this Court no further action has been initiated
in this regard. Regarding the other allegations with respect to
running an unauthorised psychic centre, rendering 'Jinn'
treatment and disposing medicines are subject matter of
complaints filed before the police and the same has to be
answered by the 3rd and 4th respondents."
9. Though by referring to the averments in paragraph No.6 of the
counter affidavit filed by respondent No.1, Mr.Kodoth Sreedharan,
learned counsel for the petitioner contended that respondent No.7 has
constructed a building, without obtaining prior permission of the
competent authority, and that no action has been taken due to the
pendency of the instant writ petition, and prayed for directions stated
supra, this court is not inclined to pass any order for the reason that it is
for the authorities to consider.
10. As regards the allegation that Mr.Sherief Mohammed, 7 th
respondent, has indulged in illegal activities, contrary to the provisions of
W.P.(C)No.6763 of 2013
the Religious Institutions (Prevention of Misuse) Act, 1998 and the Places
of Worship (Special Provisions) Act, 1991 and G.O.(P)No.9/2002/Home
dated 16.1.2002, averments made in the counter affidavits filed by the
respondents, make it clear that there is nothing on record to substantiate
the allegations.
11. Competent authorities have come to a categorical conclusion
that there is no such illegal activity punishable under the Places of
Worship (Special Provisions) Act, 1991 and G.O.(P)No.9/2002/Home
dated 16.1.2002.
Testing the above, with reference to the Wednesbury principles,
perversity, irrationality, proportionality, we do not find that there is reason
to issue any mandamus, as prayed for. As the action has already been
taken, no mandamus is required. Writ petition is, therefore, dismissed.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
W.P.(C)No.6763 of 2013
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: TRUE COPY OF THE REPRESENTATION DATED
16.8.2012 BEFORE THE DISTRICT COLLECTOR,
KASARAGOD WITH ENGLISH TRANSLATION.
EXT.P2: TRUE COPY OF THE BAIL ORDER IN BA 9623/2011
DATED 3/1/2012 BY THIS HON'BLE COURT.
EXT.P3: TRUE COPY OF THE SYNOPSIS IN CCC NO.1287/2011
BEFORE THIS HON'BLE COURT.
EXT.P3(A):TRUE COPY OF THE MEMO OF CHARGES IN CCC
NO.1287/2011 BEFORE THIS HON'BLE COURT.
EXT.P4: TRUE COPY OF THE JUDGMENT IN WPC 31621/2010
DATED 13/10/2011 BY THIS HON'BLE COURT.
EXT.P5: TRUE COPY OF THE JUDGMENT IN WPC 29217/2011
DATED 9/11/2011 BY THIS HON'BLE COURT.
EXT.P6: TRUE COPY OF THE COUNTER AFFIDAVIT IN CCC
1287/2011 DT.12/1/2012 FILED BY THE CIRCLE
INSPECTOR OF POLICE.
EXT.P7: TRUE COPY OF THE REPORT IN "KARAVAL" DAILY
NEWSPAPER DATED 3/2/2011 WITH TRANSLATION.
EXT.P7(A):TRUE COPY OF THE REPORT IN "LATEST" DAILY
NEWS PAPER DATED 9.5.2011 WITH TRANSLATION.
EXT.P8: TRUE COPY OF THE G.O.(P)NO.9/2002/HME DATED
16/1/2002.
EXT.P9: TRUE COPY OF THE ORDER DATED 15/3/2012 BY THE
HUMAN RIGHTS COMMISSION.
EXT.P10: TRUE COPY OF THE ACKNOWLEDGEMENT NO.G3/13218/
116 DATED 18/5/2011 BY THE CIRCLE INSPECTOR
OFFICE, KASARAGOD WITH TRANSLATION.
W.P.(C)No.6763 of 2013
RESPONDENTS' EXHIBITS:
EXT.R7(A): THE PHOTOSTAT COPY OF THE REVENUE RECEIPT
ISSUED BY THE VILLAGE OFFICER WITH RESPECT
TO BUILDING TAX.
EXT.R7(B): PHOTOSTAT COPY OF THE JUDGMENT WPC
29217/2011 DATED 9.11.2011.
/TRUE COPY/
P.A. TO JUDGE
