Kerala High Court
The District Collector vs The Kerala State Commission For ... 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
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
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
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
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
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. 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
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
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
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
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)
