A.S. Latheef Sait v. Assistant Commissioner of Police, Mattancherry; Sub Inspector of Police, Mattancherry; Shameer Moulavi; Haris M.S; Mouhammed Noufal; Shahid; State of Kerala Waqf Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **WP(C).No.3839 OF 2020(D)** ## **PETITIONER/S:** **A.S. LATHEEF SAIT, AGED 70 YEARS, S/O.ABDUL SATHAR SAIT, MUTHAVALLY JAMEIYATH EHYAUDHEEN, C.C.XIII/645,MASJID NASAR ROAD, KOCHANGADI,COCHIN-682005.** **BY ADV. SRI.T.M.ABDUL LATHEEF** ## **RESPONDENT/S:** - **1 ASSISTANT COMMISSIONER OF POLICE, MATTANCHERRY, KOCHI-682002.** - **2 SUB INSPECTOR OF POLICE, MATTANCHERRY, KOCHI-682002.** - **3 SHAMEER MOULAVI, C.C.12/115-D,GROUND FLOOR, NEAR CHULLICKAL BUS STOP, CHULLICKAL,COCHIN-682005.** - **4 HARIS.M.S, S/O.M.A.SHERIF, C.C.13/152, KOCHANGADI, MATTANCHERRY, KOCHI-682002.** - **5 MOUHAMMED NOUFAL, SMRA 199, ANEHUKALLUMOODU, NEAR MAVALLI MASJID, KOLLAM-691002.** - **6 SHAHID, S/O LATE P.C.MAMMU HAJI,XIII/215 A, KOCHANGADI, MATTANCHERRY, KOCHI-682002.** - **7 STATE OF KERALA WAKF BOARD, ERNAKULAM, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, KALOOR, KOCHI-682017.** **R3-6 BY ADV. SRI.ABDUL JALEEL.A** - **R3-6 BY ADV. SMT.M.A.SULFIA** - **R7 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD BY SENIOR GOVERNMENT PLEADER, SRI.P.P.THAJUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3839/2020 2** ## **JUDGMENT** ## **Dated this the 11th day of August 2020** The writ petition is filed for police protection. The dispute is in regard to the administration and management of Jameiyath Ehyaudheen, Masjid Ansar Road, Mattancherry, Kochangadi, Thoppumpadi Village, Kochi Taluk. 2. The petitioner, A.S.Latheef Sait claims that he is the Mutawalli. He produced Ext.P5 certificate issued by the Kerala State Waqf Board. The said certificate was issued on 24.01.2020. The Masjid is in existence from 1991 onwards. The respondents' faction would submit that the committee called Jameiyath Ehyaudheen is the Muthavalli and the Waqf being administered by the committee from time to time. It is submitted that by creating forged and fabricated documents, A.S.Latheef Sait obtained a certificate from the Kerala State Waqf Board. 3. The learned Senior Government Pleader would submit that there exists a dispute between the petitioner and one Khateeb who is engaged for giving Friday sermons as imam. 4. The dispute, according to the contesting respondents, is fell out of split among Thablegue followers. **WP(C).No.3839/2020 3** It is according to them the Thablegue organisation has been split into two groups, i.e., Bombay Group and Delhi Group. According to the contesting respondents, the petitioner belongs to the Bombay group and the contesting respondents belong to the Delhi group. It is submitted that the Masjid was established based on the funds raised by the Thablegue followers. 5. The foremost question in this case arose as to the scope of issuing mandamus when there is a dispute in regard to the administration and management of the Mosque. The writ of mandamus is an extraordinary relief granted by the court when there is no specific remedy available elsewhere. Therefore, this Court first has to answer the maintainability of the prayers sought before this Court. 6. The petitioner's complaint is against a group of people who are assembling and asserting as a rival to administrate and manage the Mosque. It is submitted that the rival group is led by a Khateeb, who render service as Friday Imam. The situation reached at a level to vitiate the peaceful atmosphere that is required to be maintained in the place of worship. The Masjid is a place of worship where tranquility and peace have to be maintained. The Masjid is a **WP(C).No.3839/2020 4** waqf and the true owner of the Masjid is the God almighty. The Mutawalli is only a person who is in charge of the administration of such Masjid. Any rivalry in regard to the management of Masjid would adversely affect functions of the Masjid. It is appropriate to refer the definition of Mutawalli as defined under Section 3 of the Waqf Act, which reads thus: Mutawalli means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any waqf or waqf property. 7. The Waqf Board being a public body constituted under the statutory provisions of the Waqf Act, 1995, as amended, is the authority to declare who is competent to represent the waqf. The certificate issued by the Waqf Board declaring the status of the petitioner as a Mutawalli assumes significance in that background. The court cannot invariably issue a writ of mandamus if there are effective ways to redress the grievances. The dispute on right to represent as a Mutawalli is a matter that can be decided only by the competent Tribunal. The party respondents appear to have **WP(C).No.3839/2020 5** moved the Tribunal. So long as the Tribunal had not passed any order interdicting Mutawalli from discharging his duties as Mutawalli, no other person is competent to manage the affairs of waqf other than Mutawalli. The Mutawalli alone can claim the right to administer and manage the waqf. This Court, therefore, has to consider the prayer for police protection in that background. 8. The petitioner is alone, as of now, is competent to represent the waqf. When there is no effective remedy to avert law and order to quell dissent in the place of worship, the writ of mandamus can be resorted. The history of the writ of mandamus as enumerated in **REX. v. BARKER (1265) HILARY TERM, 2 GEO.3, B.R.1762** would show that a mandamus can be issued to quell dissent in the place of worship. In that process, the court is not clothing the persons who assert his right to manage the place of worship in absolute form but only recognize his right to discharge such duties and functions so long as he has right to hold the office. The rule of law commands, obedience from the persons who are bound to honour such mandate flowing out of the right to the office. The Waqf Board having acknowledged the petitioner as a Mutawalli any persons who are in **WP(C).No.3839/2020 6** relation to the Masjid bound to recognize the office. The dissenters can very well challenge the office in an appropriate manner as provided under the Waqf Act. That is contemplation of the rule of law. No one can assert his right to deny a legitimate holder of the office physically preventing such person from discharging the duties attached to the office. That negates the very idea of the rule of law. 9. The faithful and believers must practice what they regard as fairness as part of virtue of faith. The faith commands them to follow the rule of law. They cannot breach the truth and deviate from the truth to denounce the rule of law. The rule of law, in such circumstances, demands adherence not fickleness. The respondents are not foreclosed from challenging the office held by the petitioner in the manner known under law. In view of the fact that rivalry would amount to disruption of the functions being discharged by the office of Mutawalli certainly, the police should intervene to quell the dissent in any form. The Mutawalli is free to seek police assistance as and when the situation arises which vitiates law and order prevailing in the Mosque or its premises. The police shall act upon the request of **WP(C).No.3839/2020 7** the Mutawalli if the police finds that the Mutawalli is prevented from discharging the office in accordance with law. However, this order need be given effect during the period the petitioner legally hold the office of the Mutawalli. In the event, the competent Tribunal or Waqf Board strip the petitioner from the office of the Mutawalli, the police need not act upon the direction. Subject to the above, the police shall act upon as and when the Mutawalli makes a request. The writ petition is disposed of as above. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** ln **WP(C).No.3839/2020 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TRUST DEED NO.41408 DAZTED 10/01/2017 EXECUTED BETWEEN THE A.S.LATHIF AND ASIF SAIT.** **EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.4446/1991 DATED 06/11/1991. EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.4469/1991. EXHIBIT P4 TRUE COPY OF THE REGISTRATION APPLICATION FORUM NO.1 DATED 06/01/2017. EXHIBIT P5 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE WAKF BOARD DATED 24/01/2020. EXHIBIT P6 TRUE COPY OF THE LAND TAX RECEIPT NO.60134 DATED 08/11/2017. EXHIBIT P7 TRUE COPY OF THE BUILDING TAX RECEIPTS IN RESPECT OF THE SHOP ROOMS AND BUILDINGS PRESENT IN THE WAKF PROPERTY IN RESPECT OF BUILDINGS NO.XIII/640/641/642/643/644. EXHIBIT P8 TRUE COPY OF THE SALARY PAYMENT VOUCHER DATED 6/12/2019. EXHIBIT P9 TRUE COPY OF THE PHOTOGRAPHS SHOWING STUDENTS ARE STUDYING IN THE MADRASA. EXHIBIT P10 TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 07/07/2011 VALIDITY FROM 01/06/2019 TO 31/05/2020. EXHIBIT P11 TRUE COPY OF THE TERMINATION LETTER DATED 02/02/2020 OF PETITIONERS. EXHIBIT P12 TRUE COPY OF THE COMPLAINT FILED BEFORE THE 1ST RESPONDENT DATED 04/02/2020. EXHIBIT P13 TRUE COPY OF LAND TAX RECEIPT DATED 04/04/2019. EXHIBIT P14 TRUE COPY OF THE PROPERTY TAX PAYMENT RECEIPT NO.012512 DATED 12/09/2006 FOR THE YEAR 20042005 IN RESPECT OF THE WAKF BUILDING.** ## **WP(C).No.3839/2020 9** |**EXHIBIT P14(A)**|**TRUE COPY OF THE PROPERTY TAX PAYMENT RECEIPT**| |---|---| ||**NO.012513 DATED 12/09/2006 FOR THE YEAR 2004-**| ||**2005 IN RESPECT OF THE WAKF BUILDING.**| |**EXHIBIT P14(B)**|**TRUE COPY OF THE PROPERTY TAX PAYMENT RECEIPT**| ||**NO.12508 DATED 12/09/2006 FOR THE YEAR 2006-**| ||**2007 IN RESPECT OF THE WAKF BUILDING.**| |**EXHIBIT P14(C)**|**TRUE COPY OF THE PROPERTY TAX PAYMENT RECEIPT**| ||**NO.12509 DATED 12/09/2006 FOR THE YEAR 2006-**| ||**2007 IN RESPECT OF THE WAKF BUILDING.**| |**EXHIBIT P14(D)**|**TRUE COPY OF THE PROPERTY TAX PAYMENT RECEIPT**| ||**NO.12510 DATED 12/09/2006 FOR THE YEAR 2006-**| ||**2007 IN RESPECT OF THE WAKF BUILDING.**| |**EXHIBIT P14(E)**|**TRUE COPY OF THE PROPERTY TAX PAYMENT RECEIPT**| ||**NO.12511 DATED 12/09/2006 FOR THE YEAR 2006-**| ||**2007 IN RESPECT OF THE WAKF BUILDING.**| |**EXHIBIT P14(F)**|**TRUE COPY OF THE PROPERTY TAX PAYMENT RECEIPT**| ||**NO.12514 DATED 12/09/2006 FOR THE YEAR 2006-**| ||**2007 IN RESPECT OF THE WAKF BUILDING.**| |**EXHIBIT P15**|**TRUE COPY OF THE SPECIAL NOTICE NO.42969 DATED**| ||**01/03/1994 IN RESPECT OF THE WAKF BUILDINGS.**| |**EXHIBIT P15(A)**|**TRUE COPY OF THE SPECIAL NOTICE NO.42970 DATED**| ||**01/03/1994 IN RESPECT OF THE WAKF BUILDINGS.**| |**EXHIBIT P15(B)**|**TRUE COPY OF THE SPECIAL NOTICE NO.42971 DATED**| ||**01/03/1994 IN RESPECT OF THE WAKF BUILDINGS.**| |**EXHIBIT P15(C)**|**TRUE COPY OF THE SPECIAL NOTICE NO.42972 DATED**| ||**01/03/1994 IN RESPECT OF THE WAKF BUILDINGS.**| |**EXHIBIT P15(D)**|**TRUE COPY OF THE SPECIAL NOTICE NO.42973 DATED**| ||**01/03/1994 IN RESPECT OF THE WAKF BUILDINGS.**| |**EXHIBIT P16**|**TRUE COPY OF THE LEASE AGREEMENT NO.3790/2015**| ||**DATED 15/10/2015 BETWEEN THE PETITIONER AND**| ||**ANWAR HASHIM.**| |**EXHIBIT P17**|**TRUE COPY OF THE SALE DEED NO.3086/1/2015 DATED**| ||**22/08/2015.**| |**EXHIBIT P18**|**TRUE COPY OF RENT AGREEMENT DATED 03/12/2019.**| |**EXHIBIT P19**|**TRUE COPY OF RENT AGREEMENT DATED 22/03/2019.**| **WP(C).No.3839/2020 10** **EXHIBIT P20 TRUE COPY OF RENT AGREEMENT DATED 02/12/2019.** **EXHIBIT P21 TRUE COPY OF OWNERSHIP CERTIFICATE DATED NO. WZR6/330/19 DATED 24/01/2019.** **EXHIBIT P22 TRUE COPY OF STATEMENT DATED 26/06/2019.** **EXHIBIT P23 TRUE COPY OF THE PLAINT O.S. NO.34/2020 DATED 19/03/2020.** **EXHIBIT P24 TRUE COPY OF REPORT DATED 06/06/2018.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A) TRUE COPY OF WAKF DEED BEARING NO.4446/91 DATED 06/11/1991.** - **EXHIBIT R3(B) TRUE COPY OF WAKF DEED BEARING NO.4469/91 DATED 07/11/1991.** - **EXHIBIT R3(C) TRUE COPY OF BYE LAW OF JAMEIYATH EHYAUDHEEN WAKF COMMITTEE.** **EXHIBIT R3(D) TRUE COPY OF THE LEASE DEED BEARING NUMBER 3790/2015 DATED 15/10/2015 EXECUTED BY PETITIONER HEREIN IN FAVOUR OF ONE ANVER HASHIM OF ERNAKULAM.** **EXHIBIT R3(E) TRUE COPY OF THE LETTER BEARING NO.9/2019-20 DATED 26/02/2020.** - **EXHIBIT R3(F) TRUE COPIES OF VOUCHERS (2 IN NOS.). EXHIBIT R3(G) TRUE COPY OF ELECTRICITY BILL.** - **EXHIBIT R3(H) TRUE COPY OF RECEIPT FROM WATER AUTHORITY.** - **EXHIBIT R3(I) TRUE COPY OF RECEIPT OF LAND TAX.** **EXHIBIT R3(J) TRUE COPIES OF RECEIPTS OF PROPERTY TAX (7 IN NOS.).** **EXHIBIT R3(K) TRUE COPY OF THE CERTIFICATE ISSUED BY VILLAGE OFFICER DATED 20/02/2020.**