Abdul Rahman Afiyab vs The Secretary
2021 Latest Caselaw 2722 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

  MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                  WP(C).No.25915 OF 2020(L)


PETITIONER/S:

     1      ABDUL RAHMAN AFIYAB,
            AGED 35 YEARS, S/O. ABDULLA T.A,
            T.A. MANZIL, CRESCENT ROAD,
            P.O. TALANGARA, KASARAGOD TALUK,
            KASARAGOD DISTRICT, PIN: 671 122.

     2      AHAMMED FAIZAL,
            AGED 44 YEARS, S/O. ABUBACKER,
            MASTER VILLA, TALANGARA VILLAGE,
            PALLIKKAL, KASARAGOD TALUK,
            KASARAGOD DISTRICT, PIN: 671 122.

     3      AHAMMED UNAIZE.M.,
            AGED 40 YEARS, S/O. MOIDU,
            AZHAR MANZIL, CRESCENT ROAD, THALANGARA P.O.
            KASARAGOD TALUK, KASARAGOD DISTRICT,
            PIN: 671 122.

            BY ADVS.
            SRI.SIRAJ KAROLY
            SRI.R.PARAMESWARA IYER

RESPONDENT/S:

     1      THE SECRETARY,
            KASARGOD MUNICIPALITY,
            MUNICIPAL OFFICE,
            KASARAGOD TALUK,
            KASARGOD P.O,
            KASARGOD DISTRICT 671 122.
 W.P.(C)No.25915 of 2020            2



         2         KASARGOD MUNICIPALITY,
                   REPRESENTED BY ITS SECRETARY,
                   MUNICIPAL OFFICE,
                   KASARAGOD TALUK, KASARGOD P.O.,
                   KASARGOD DISTRICT, PIN: 671 122.

         3         THE INSPECTOR OF POLICE,
                   KASARGOD, KASARGOD.P.O.,
                   KASARGOD DISTRICT, PIN: 671 122.

         4         THE DEPUTY SUPERINTENDENT OF POLICE,
                   KASARGOD, KASARGOD.P.O.,
                   KASARGOD DISTRICT, PIN: 671 122.

         5         THE DISTRICT POLICE CHIEF,
                   KASARGOD, KASARGOD.P.O.,
                   KASARGOD DISTRICT, PIN: 671 122.

         6         THE REVENUE DIVISIONAL OFFICER,
                   (SUB DIVISIONAL MAGISTRATE),
                   KASARGOD, KASARGOD.P.O.,
                   KASARGOD DISTRICT, PIN: 671 122.

         7         DISTRICT COLLECTOR,
                   KASARGOD DISTRICT,
                   KASARGOD.P.O., KASARGOD-671 122.

         8         STATE POLICE CHIEF,
                   POLICE HEAD QUARTERS,
                   VAZHUTHACAUD,
                   THIRUVANANTHAPURAM-695 010.

         9         STATE OF KERALA,
                   REPRESENTED BY ITS SECRETARY (HOMES),
                   GOVERNMENT SECRETARIAT,
                   THIRUVANANTHAPURAM-695 001.

         10        UNION OF INDIA,
                   REPRESENTED BY ITS SECRETARY,
                   HOME AFFAIRS,
                   NEW DELHI 110 001.
 W.P.(C)No.25915 of 2020            3



         11        TALANGARA ISLAMIC EDUCATIONAL
                   AND CHARITABLE TRUST,
                   REPRESENTED BY ITS SECRETARY
                   MUHAMMED SHEREEF,
                   CRESCENT ROAD,
                   TALANGARA VILLAGE,
                   TALANGARA P.O.,
                   KASARGOD, TALUK,
                   KASARGOD DISTRICT,
                   PIN: 671 122.

         12        SAHAR ABBAS,
                   AGED 60 YEARS, S/O. MUHAMMED KUNHI,
                   THAYAL HOUSE, TALANGARA VILLAGE,
                   TALANGARA P.O., KASARGOD, TALUK,
                   KASARGOD DISTRICT, PIN: 671 122.

         13        *ADDL.R13.

                   ABDUL KHADER A.,
                   S/O. ABDUL RAHIMAN,
                   AGED 59 YEARS,
                   RESIDING AT BEEFATHIMA MANZIL,
                   CRESCENT ROAD, KADAVATH,
                   KASARAGOD-671122.

         14        *ADDL.R14.

                   HAMEED,
                   AGED 65 YEARS, S/O. MUHAMMED,
                   REHMATH MANZIL, CRESCENT ROAD,
                   TALANGARA, KASARAGOD DISTRICT-671122.
                   ( ADDL.R13 AND 14 ARE IMPLEADED AS PER ORDER
                   DATED 14-01-2021 IN IA 1/2021 IN
                   WP(C) 25915/2020).

                   R1-2 BY SRI.MATHEW B.KURIAN, STANDING COUNSEL
                   R10 BY SMT.SREEKALA K.L., CGC
                   R11-12 BY ADV. SRI.P.CHANDRASEKHAR(SR.)
                   R11-12 BY ADV. SRI.K.K.MOHAMED RAVUF
                   R11-12 BY ADV. SMT.K.VIDYA
                   R11-12 BY ADV. SHRI.SATHEESH V.T.
 W.P.(C)No.25915 of 2020            4



                   R13 BY ADV. K.SHRIHARI RAO
                   SRI.K.J.MANURAJ, GOVERNMENT PLEADER
                   SRI.P.VIJAYAKUMAR, ASG OF INDIA

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25-01-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.25915 OF 2020
                                         5




                        W.P.(C) No.25915 of 2020
                  -----------------------------------------------


                               JUDGMENT

Petitioners are persons residing at Talangara within the

limits of Kasargod Municipality. It is alleged by the petitioners that a

two storied building constructed by the twelfth respondent in the

vicinity of the residences of the petitioners as a warehouse is being

used by the eleventh respondent as a place of worship of the

Mujahideen sect of the Muslim community. It is also alleged by the

petitioners that though the District Collector has earlier issued Ext.P3

order directing that the building shall not be used as a place of

worship, the building is still used as a place of worship by the

eleventh respondent. It is further alleged by the petitioners that the

building is situated is an area where persons belonging to the Sunni

sect of the Muslim community are thickly populated and the use of

the building by the eleventh respondent as a place of worship is likely

to create law and order issues in the locality. It is further alleged by

the petitioners that though complaints have been preferred by them

to the District Collector in this regard, the same are not being acted

upon by the District Collector. The petitioners, therefore, seek

appropriate directions in this matter. WP(C).No.25915 OF 2020

2. On 30.11.2020, this Court passed the following

interim order :

"Despite service of notice, none appears for respondents 11 and 12.

In Ext.P3 proceedings dated 28.11.2017, the 7 th respondent District Collector has taken note of Ext.P4 consent letter given by the 12th respondent before the Secretary of the 2 nd respondent Municipality, in which it is undertaken that the building constructed in Re.Sy.No.114/12 of Thalangara Village shall be used only as godown for storing stationery items and not for any other purpose.

The learned Standing Counsel for the 2nd respondent Municipality would point out the pendency of O.S.No.197 of 2020 before the Munsiff's Court, Kasargod and seeks time to get instructions as to the nature of reliefs sought for in that suit and whether the plaintiff has obtained any interim order.

The learned Special Government Pleader, on instructions, would submit that the 7 th respondent District Collector has not granted permission to use the building constructed in Re.Sy.No.114/12 of Thalangara Village covered by Ext.P6 building permit and Ext.P7 change of occupancy, as a place of worship.

In such circumstances, there will be an interim order directing respondents 3 to 5 to restrain respondents 11 and 12 from using the building in question, constructed on the strength of Exts.P6 and P7, as a place of worship, by conducting any sort of religious activities, for a period of three weeks.

List on 08.12.2020."

3. A counter affidavit has been filed by respondents 11

and 12. The stand taken by the said respondents in the counter

affidavit is that the building is presently owned by the eleventh WP(C).No.25915 OF 2020

respondent and that the eleventh respondent is not using the

building as a place of worship as alleged by the petitioners and that

the building is being used only as a warehouse.

In the light of the counter affidavit filed by respondents

11 and 12, the writ petition is disposed of making the interim order

dated 30.11.2020 absolute.

Sd/-

P.B.SURESH KUMAR, JUDGE

rkj WP(C).No.25915 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPROT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 6TH RESPONDENT DATED 12.05.2017.

EXHIBIT P2 TRUE COPY OF THE REPROT SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 7TH RESPONDENT DATED 12.06.2017.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28.11.2017 IN D. DIS 28217/D1 OF THE 7TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE 12TH RESPONDENT BEFORE THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 3.8.207 BEFORE THE 7TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE EARLIER BUILDING PERMIT DATED 10.6.2016 ISSUED FROM 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE NEW PERMIT DATED 5.11.2019 PURPORTEDLY CHANGING THE OCCUPANCY ISSUED FROM 2ND RESPONDENT.

EXHIBIT P7 A PHOTOGRAPHS SHOWING THE BUILDING AND ITS SURROUNDINGS.

EXHIBIT P8 TRUE COPY OF THE APPLICATION SO SUBMITTED BEFORE THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DATED 30.09.2020.

EXHIBIT P9 TRUE COPY OF THE RELY GIVEN BY THE 1ST RESPONDENT DATED 27.10.2020.

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION BEFORE THE CENTRAL GOVERNMENT SUBMITTED BY INHABITANTS OF THE LOCALITY INCLUDING THE PETITIONERS.

WP(C).No.25915 OF 2020

EXHIBIT P11 TRUE COPY OF THE COMPLAINT BEFORE THE 7TH RESPONDENT BY 2ND PETITIONER.

EXHIBIT P12 TRUE COPY OF THE REPRESENTATION BEFORE THE 7TH RESPONDENT DATED 22.9.2020 GIVEN BY 1ST PETITIONER AND THE OTHER INHABITANTS OF THE LOCALITY.

EXHIBIT P13 TRUE COPY OF THE NOTICE OF DEMOLITION AGAINST THE 12TH RESPONDENT ISSUED BY 1ST RESPONDENT DATED 19.10.2013.

EXHIBIT P14 TRUE COPY OF THE SALE DEED EXECUTED IN FAVOUR OF THE 12TH RESPONDENT DATED 4.5.2013.

EXHIBIT P15 TRUE COPY OF THE SALE DEED EXECUTED IN FAVOUR OF THE 12TH RESPONDENT DATED 21.3.2013.

EXHIBIT P16 TRUE COPY OF THE MINUTES OBTAINED FROM THE OFFICE OF THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.

EXHIBIT P17 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE INHABITANTS OF THE LOCALITY BEFORE THE CHIEF MINISTER DATED 13.3.2013.

EXHIBIT P17(a) TRUE COPY OF THE ACKNOWLEDGEMENT FOR EXHIBIT P17 ISSUED FROM CHIEF MINISTER'S OFFICE DATED 17.4.2013. WP(C).No.25915 OF 2020

EXHIBIT P17(b) TRUE COPY OF THE ACKNOWLEDGEMENT FOR THE REPRESENTATION, ISSUED FROM THE OFFICE OF THE HON'BLE MINISTER FOR HOME AND VIGILANCE DATED 3.4.2013.

EXHIBIT P18 TRUE COPY OF THE MASS REPRESENTATION SUBMITTED BY THE INHABITANTS OF THE LOCALITY BEFORE THE 7TH RESPONDENT DATED 4.3.2013.

EXHIBIT P19 TRUE COPY OF THE REPRESENTATION SUBMITTED BY LOCAL PEOPLE BEFORE THE 6TH RESPONDENT DATED 13.03.2013.

EXHIBIT P20 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE LOCAL PEOPLE AGAINST THE CONSTRUCTION DATED 13.3.2013 BEFORE THE 4TH RESPONDENT.

EXHIBIT P20(a) TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF 4TH RESPONDENT FOR EXHIBIT P20 DATED 18.3.2013.

EXHIBIT P21 TRUE COPY OF THE MASS REPRESENTATION SUBMITTED BY THE LOCAL PEOPLE BEFORE THE 1ST RESPONDENT DATED 13.3.2013.

EXHIBIT P21(a) TRUE COPY OF THE RECEIPT DATED 16.3.2013 ISSUED BY THE 1ST RESPONDENT FOR EXHIBIT P21.

EXHIBIT P22 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE LOCAL PEOPLE BEFORE THE 1ST RESPONDENT DATED 14.12.2016. WP(C).No.25915 OF 2020

EXHIBIT P22(a) TRUE COPY OF THE RECEIPT DATED 14.12.2016 ISSUED BY 1ST RESPONDENT FOR EXHIBIT P22.

EXHIBIT P23 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE LOCAL PEOPLE BEFORE THE 1ST RESPONDENT DATED 27.2.2018.

EXHIBIT P23(a) TRUE COPY OF THE RECEIPT FOR EXHIBIT P23 ISSUED BY 1ST RESPONDENT DATED 27.2.2018.

EXHIBIT P24 TRUE COPY OF THE COMMISSION APPLICATION FILED BY THE PLAINTIFF IN O.S.NO.197/2020 ON THE FILE OF THE MUNSIFF'S COURT, KASARAGOD DATED 24.7.2020.

EXHIBIT P25 TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.197/2020 ON THE FILE OF THE MUNSIFF'S COURT, KASARAGOD DATED 10.08.2020.

EXHIBIT P26 TRUE COPY OF THE COUNTER FILED BY THE 11TH RESPONDENT IN I.A.6/2020 IN O.S.NO.197/2020 ON THE FILE OF THE MUNSIFF'S COURT, KASARAGOD DATED 23.11.2020.

EXHIBIT P27 PHOTOGRAPHS OF THE BUILDING AND THE PEOPLE COMES THERE FOR PRAYER.

WP(C).No.25915 OF 2020

RESPONDENT'S/S EXHIBITS:

EXHIBIT R-11(a) TRUE COPY OF THE SALE DEED NO.3450 DATED 25.9.2019 OF KASARAGOD SUB REGISTRY.

EXHIBIT R-11(b) TRUE COPY OF THE TRUST DEED NO.163/2019 DATED 6.7.2019 OF THE 11TH RESPONDENT.

EXHIBIT R-11(c) TRUE COPY OF THE AMENDED TRUST DEED NO.

81/2020 DATED 7.7.2020 OF THE 11TH RESPONDENT.

EXHIBIT R-11(d) TRUE PHOTOGRAPHS SHOWING THE BUILDINGS AFTER ITS CONSTRUCTION WAS COMPLETED.

EXHIBIT R-11(e) TRUE PHOTOGRAPHS SHOWING THE CHARITABLE ACTIVITIES OF THE 11TH RESPONDENT.

EXHIBIT R-11(f) TRUE COPY OF THE PLAINT IN O.S.NO.197/2020 ON THE FILE OF THE MUNSIFF COURT, KASARAGOD.

EXHIBIT R-11(g) TRUE COPY OF THE ORDER DATED 18.9.2020 IN I.A.NO.3/2020 IN O.S.NO.197/2020 OF THE PRINCIPAL MUNSIFF COURT, KASARAGOD.

EXHIBIT R-11(h) TRUE COPY OF THE MEMORANDUM OF APPEAL IN CMA NO.12/2020 ON THE FILE OF THE COURT OF THE DISTRICT JUDGE, KASARAGOD.

EXHIBIT R-11(i) TRUE COPY OF THE APPLICATION DATED 24.11.2020 SUBMITTED BY THE 11TH RESPONDENT BEFORE THE 7TH RESPONDENT.

EXHIBIT R-11(j) TRUE COPY OF THE AADHAR CARD OF SRI.MUHAMMED HABEEBULLA.