Kunnakkandan Ummer vs State Of Kerala
2024 Latest Caselaw 8670 Ker

Kerala High Court

Kunnakkandan Ummer vs State Of Kerala on 27 March, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
                        WP(C) NO. 11724 OF 2015
PETITIONER:

          KUNNAKKANDAN UMMER
          S/O.ASSAN JAMALUDHEEN MUSALIYAR,VILLUR DESOM,INDIANOOR
          AMSOM,INDIANOOR.P.O,TIRUR TALUK,MALAPPURAM DISTRICT.

          BY ADVS.
          SRI.NIRMAL V NAIR
          SRI.ANEESH JOSEPH
          SRI.RILGIN V.GEORGE



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT,DEPARTMENT
          OF LOCAL SELF GOVERNMENT
          INSTITUIONS,SECRETARIAT,THIRUVANANTHAPURAM-695001.

    2     DISTRICT COLLECTOR
          CIVIL STATION,MALAPPURAM,MALAPPURAM DISTRICT-676503.

    3     PONMALA GRAMA PANCHAYATHQ
          REPRESENTED BY ITS
          SECRETARY,CHAPPANANGADI.P.O,MALAPPURAM DISTRICT-676528.

    4     SECRETARY
          PONMALA GRAMA PANCHAYATH,CHAPPANANGADI.P.O,MALAPPURAM
          DISTRICT-676528.

    5     PARAMBIL MUHAMMED SHAFI
          S/O.ABOOBACKER MASTER,KOORIYAD,INDIANOOR.P.O,MALAPPURAM
          DISTRICT-676503.

    6     KERALA NAJUVUTHUL MUJAHIDEENREG.NO.021957FUNCTIONING AT
          MUJAHID CENTRE
          BUILDING NO.13/804,ANNIE HALL ROAD,KOZHIKODE AMSOM AND
          DESOM,KOZHIKODE TALUK,KOZHIKODE DISTRICT-
          676123,REPRESENTED BY ITS GENERAL SECRETARY.

          BY ADVS.
          SRI.T.H.ABDUL AZEEZ
 W.P (C) Nos.11724 of 2015 & 30036 of 2018

                                     2

             SRI.ABDUL MAJEED.N
             SRI.ESM.KABEER



OTHER PRESENT:

             SRI.B.S.SYAMANTAK, GP




      THIS    WRIT     PETITION     (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 27.03.2024, ALONG WITH WP(C).30036/2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) Nos.11724 of 2015 & 30036 of 2018

                                     3



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
                       WP(C) NO. 30036 OF 2018
PETITIONER:

            ABDULLA MEKKARUMBAN
            AGED 59 YEARS
            S/O HASSAN, MEKKARUMBAN HOUSE, KOORIYAD,
            INDIANOOR P.O., KOTTAKKAL (VIA), MALAPPURAM DIST
            - 676 503.


RESPONDENTS:

     1      STATE OF KERALA
            REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME
            AFFAIRS, STATE SECRETARIAT, THIRUVANANTHAPURAM-
            695 001.

     2      DISTRICT COLLECTOR,
            CIVIL STATION, MALAPPURAM-676 505.

     3      PONMALA GRAMA PANCHAYATH
            REPRESENTED BY ITS SECRETARY, CHAPPANANGADI P.O.,
            MALAPPURAM DISTRICT, PIN-676 528.

     4      PARAMBIL MUHAMMED SHAFI,
            S/O.ABOOBACKER MASTER, KOORIYAD, INDIANNOOR P.O.,
            MALAPPURAM DISTRICT-676 503.

     5      KERALA NADHUVATHUL MUJAHEEDHEEN
            (REGD.NO.2/1957), CD TOWER, MUJAHID CENTRE,
            ARAYIDATH PALAM, KOZHIKODE, REPRESENTED BY ITS
            PRESENT GENERAL SECRETARY P.UNNEENKUTTY MOULAVI.

            BY ADVS.
            GOVERNMENT PLEADER
            SRI.ESM.KABEER
            SRI.ABDUL MAJEED.N
 W.P (C) Nos.11724 of 2015 & 30036 of 2018

                                     4


      THIS    WRIT     PETITION     (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 27.03.2024, ALONG WITH WP(C).11724/2015, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) Nos.11724 of 2015 & 30036 of 2018

                                     5


                  P.V.KUNHIKRISHNAN
              ---------------------
         W.P (C) Nos.11724 of 2015 & 30036 of 2018
         ---------------------------
            Dated this the 27th day of March, 2024

                              JUDGMENT

These two writ petitions are connected and therefore, I

am disposing of two writ petitions by a common judgment.

These writ petitions are filed with the following prayers:-

"(I) Call for the records leading to Exhibit P3 and Ext.P12 and quash the same by issuance of a writ of certiorari or such Other writ order or direction.

(ii) Issue any writ of mandamus or any other appropriate writ order or direction to demolish the unauthorized construction put forth by the 5th respondent organization in Sy.No. 24/1 of Ponmala Village, Ponmala Panchayath of Tirur Taluk in Malappuram District without obtaining the mandatory permit from the District.

Collector.

(iii) Declare that the construction of the prayer Hall constructed in Sy.No.24/1 of Ponmala Village, Ponmala Panchayath of Tirur Taluk in Malappuram District is an unauthorized construction.

(iv) Issue any writ of mandamus or any other appropriate writ order or direction directing an enquiry by the Vigilance Department so as to reveal the foul play and the role played by 3rd respondent in the matter of issuing Ext.P3 permit to the 5th respondent organization for illegal construction of the prayer hall. W.P (C) Nos.11724 of 2015 & 30036 of 2018

(v) Declare that the construction of the prayer Hall constructed in Sy.No. 24/1 of Ponmala Village, Ponmala Panchayath of Tirur. Taluk in Malappuram District is constructed contrary to the provisions of the Kerala Panchayath Building Rules.

(vi) Such other writ or order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case and in the interest of justice." (SIC)

"i. To issue a writ in the nature of certiorari or any other appropriate writ order or direction and call for the records leading to Exhibits P2, P11, P14 and P16 and quash the same;

ii. To issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the 2nd respondent to conduct an enquiry afresh in accordance with Clause 23 of the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony as well as Rule 7(8) of the Kerala Panchayat Building Rules, 2011 with respect to the construction and establishment of the mosque by the 6th respondent in Re-Survey No. 24/1 of the Ponmala Village in Tirur Taluk of Malappuram District;

iii. To issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the respondents 2 to 4 to ensure that no practice or worship is done in the mosque constructed by the 6th respondent in Re-Survey No. 24/1 of the Ponmala Village in Tirur Taluk of Malappuram District;

iv. To issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the respondents 2 to 4 to ensure that no further construction is done in the mosque constructed by the 6th respondent in Re-Survey No. 24/1 of the Ponmala Village in W.P (C) Nos.11724 of 2015 & 30036 of 2018

Tirur Taluk of Malappuram District and to ensure that the said mosque is shifted to elsewhere."

(SIC)

2. The petitioner in W.P.(C)No.11724 of 2015 is

aggrieved by the grant of building permit for the construction of

a mosque by the 6th respondent in that case which according to

the petitioner is in total violation of mandatory statutory

provisions of the manual of guideline to Prevent and Control

Communal Disturbances and to Promote Communal Harmony

2005 and also to Rule 7(8) of the Proviso of the Kerala

Panchayat Building Rules, 2011. The petitioner is further

aggrieved by the permit granted by the 2nd respondent to

continue the functioning of the mosque.

3. The petitioner in W.P.(C)No.30036 of 2018 belongs to

the Sunny sect of belief in Islam. He is aggrieved by the

sanction accorded by the 2nd respondent for the construction of

a prayer hall to the 5th respondent organisation which is another

sect of belief in Islam. Exhibit P1 is the building permit initially

issued to the 4th respondent by the 3rd respondent Secretary,

Ponmala Grama Panchayath. In the proceedings of the District

Collector Malappuram as evident by Ext P2, the District Collector

had ordered for the issuances of Ext. P1 to the Ponmala Grama

Panchayath Secretary. Later the 3rd respondent struck off the W.P (C) Nos.11724 of 2015 & 30036 of 2018

name of the 4th respondent and inserted the name of one

A.P.Abdul Khader Moulvai, the then General Secretary of the 5 th

respondent's organization is the submission. The 5th respondent

organization had proceeded with the construction of the prayer

hall without a sanction from the Government. Ext P5 is the

document stating that neither A.P Adul Khadar Moulavi nor his

organization KNM had obtained a sanction from the District

Collector.

4. Ext.P9 is the letter issued to the petitioner by the

officer Right to Information Act stating that the District Police

Superintendent had not made any enquiries about the law and

order situation in the area where the proposed prayer hall is

sought to be constructed. It is submitted that on further

enquiry, the petitioner could understood that the Village Officer,

Ponmala had submitted a report before Tirur Tahasildar stating

that the construction of the prayer hall is unauthorised. Ext.P10

is the report submitted by the Village Officer, Ponmala to Tirur

Tahsildar to the effect that no permission for the construction of

a prayer hall is sought and no legal formalities had complied in

constructing the prayer hall. The petitioner submitted a

complaint before the District Collector regarding unauthorised W.P (C) Nos.11724 of 2015 & 30036 of 2018

construction of the prayer hall as evident by Ext.P11. According

to the petitioner, the 2nd respondent had not heard the

petitioner and other parties and passed Ext.P12 order. It is also

submitted that the 2nd respondent did not consider any of the

valid contentions raised by the petitioner while passing Ext.12.

Ext.P12 is unsustainable is the submission. These writ petitions

are file challenging Ext.P12 order of the District collector and

also challenging Ext.P3 order of the 3 rd respondent with a prayer

to demolish the illegal construction.

5. Heard the learned counsel for the petitioners in these

cases and the learned Government Pleader.

These writ petitions are pending before this Court from

2015 and 2018 onwards. No interim order is passed in these

cases. It is submitted that the construction of the mosque and

prayer hall is already completed and is functioning. This Court

perused the impugned orders in these cases. I am of the

considered opinion that at this distance of time, there is nothing

to interfere with the impugned orders. The statutory authorities

after enquiry found that there is no violation. This Court sitting

in the jurisdiction under Article 226 of the Constitution of India

need not interfere in these matters. Therefore, there is no W.P (C) Nos.11724 of 2015 & 30036 of 2018

merit in these writ petitions. Therefore, these writ petitions are

dismissed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE sruthy/bng W.P (C) Nos.11724 of 2015 & 30036 of 2018

APPENDIX OF WP(C) 30036/2018

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE BUILDING PERMIT ISSUED BY 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 22.02.2011.

EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS OF 2ND RESPONDENT DATED 27.01.2011.

EXHIBIT P3 A TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT DATED 07.09.2012.

EXHIBIT P4              A TRUE COPY OF THE PETITION FILED BY
                        THE    PETITIONER   BEFORE   THE 2ND
                        RESPONDENT DATED 02.11.2015.

EXHIBIT P5              A TRUE COPY OF THE REPLY GIVEN BY THE

PUBLIC INFORMATION OFFICER AND SENIOR SUPERINTENDENT INSPECTION AND AUDIT COLLECTORATE MALAPPURAM ON BEHALF OF THE DISTRICT COLLECTOR DATED 19.01.2016.

EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN WPC NO.2799/20132 DATED 19.06.2013.

EXHIBIT P7 A TRUE COPY OF THE PROCEEDINGS OF 2ND RESPONDENT DATED 22.11.2013.

EXHIBIT P8 A TRUE COPY OF THE GO(P)NO.217/2005/HOME OF HOME (SS-A) DEPARTMENT DATED 25.07.2005 GUIDELINES TO PREVENT AND CONTROL DISTURBANCE AND PROMOTE COMMUNAL HARMONY 2005.

EXHIBIT P9 A TRUE COPY OF THE REPLY LETTER ISSUED BY P.SEYD ALI OFFICER RIGHT TO INFORMATION ACT TO THE PETITIONER DATED 03.06.2013.

EXHIBIT P10 A TRUE COPY OF THE REPLY SUBMITTED BY THE VILLAGE OFFICER TO TAHSILDAR TIRUR W.P (C) Nos.11724 of 2015 & 30036 of 2018

DATED 27.06.2016.

EXHIBIT P11 A TRUE COPY OF THE DETAILED COMPLAINT OF THE PETITIONER DATED 08.09.2016 BEFORE THE 2ND RESPONDENT.

EXHIBIT P12 A TRUE COPY OF THE ORDER OF 2ND RESPONDENT DATED 14.02.2018.

EXHIBIT P13 TRUE COPY OF THE MEMORADUM DATED 09.04.2013 PREFERRED BY THE INHABITANTS OF THE LOCALITY BEFORE THE DISTRICT COLLECTOR, MALAPPURAM

EXHIBIT P14 TRUE COPY OF THE REPLY ISSUED BY DISTRICT COLLECTOR, MALAPPURAM ON EXT. P13 DATED 15.04.2013

EXHIBIT P15 TRUE COPY OF THE REPORT OF THE TAHSILDAR, TIRUR FILED BEFORE THE REVENUE DIVISIONAL OFFICER TIRUR DATED 18.03.2017

EXHIBIT P16 TRUE COPY OF THE REPORT OF THE REVENUE DIVISIONAL OFFICER, TIRUR DATED 24.04.2017 FILED BEFORE THE DISTRICT COLLECTOR, MALAPPURAM W.P (C) Nos.11724 of 2015 & 30036 of 2018

APPENDIX OF WP(C) 11724/2015

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF G.O(P)NO.217/05/HOME DATED 25.7.2005 ALONGWITH THE GUIDELINES

EXHIBIT P2 A TRUE COPY OF THE ORDER NO.E3/63704/10/D.DIS DATED 27.1.2011 ISSUED BY THE 2ND RESPONDENT ALONGWITH THE ENGLISH TRANSLATION

EXHIBIT P3 A TRUE COPY OF THE BUILDING PERMIT DATED 22.2.2011 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P4 A TRUE COPY OF THE SALE DEED DATED 6.3.2012 BETWEEN THE 5TH AND 6TH RESPONDENTS ALONGWITH THE ENGLISH TRANSLATION

EXHIBIT P5 A TRUE COPY OF THE LETTER NO.E3-49603/13 DATED 6.9.2013 ISSUED BY THE PUBLIC INFORMATON OFFICER,OFFICE OF THE 2ND RESPONDENT ALONG WITH THE ENGLISH TRANSLATION

EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 25.1.2013 SUBMITTED BEFORE THE 2ND RESPONDENT

EXHIBIT P7 A TRUE COPY OF REPRESENTATION DATED 25.1.2013 SUBMITTED BEFORE THE 4TH RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE COMPLETION CERTIFICATE DATED 18.5.2013 SUBMITTED BY THE 6TH RESPONDENT

EXHIBIT P9 A TRUE COPY OF JUDGMENT DATED 19.6.2013 IN W.P(C)2799/2013 ON THE FILES OF THIS HONOURABLE COURT

EXHIBIT P10 A TRUE COPY OF THE WRITTEN SUBMISSION DATED 20.11.2013

EXHIBIT P11 A TRUE COPY OF THE ORDER NO.D.DIS- W.P (C) Nos.11724 of 2015 & 30036 of 2018

15416/13/E3 DATED 22.11.2013 ISSUED BY THE 2ND RESPONDENT ALONGWITH THE ENGLISH TRANSLATION

EXHIBIT P12 A TRUE COPY OF THE REPLY UNDER THE RTI ACT DATED 19.12.2013 ISSUED BY THE ASSISATANT ENGINEER,PWD BUILDINGS SECTION,MALAPPURAM ALONGWITH THE ENGLISH TRANSLATION

EXHIBIT P13 A TRUE COPY OF THE REPLY UNDERTHE RTI ACT DATED 1.1.2014 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER,PWD BUILDINGS SUB DIVISION,MANJERI ALONGWITH THE ENGLISH TRANSLATION

EXHIBIT P14 A TRUE COPY OF THE ORDER NO.E3-252/14 DATED 4.1.2014 ISSUED BY THE 2ND RESPONDENT ALONGWITH THE ENGLISH TRANSLATION

EXHIBIT P15 A TRUE COPY OF THE REPORT DATED 12.5.2014 SUBMITTED BY THE 4TH RESPONDENT ALONGWITH THE ENGLISH TRANSLATION

EXHIBIT P16 A TRUE COPY OF THE ORDER NO.24420/RB3/14 DATED 5.6.2014 ISSUED BY THE 1ST RESPONDENT ALONGWITH THE ENGLISH TRANSLATION.