V.M. Muhammed @ Mammu Badaiya vs Khillar Juma Masjid and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **WP(C).No.18776 OF 2019(V)** ## **PETITIONER:** **V.M.MUHAMMED @ MAMMU BADAIYA AGED 57 YEARS S/O AHMMED T.A., BADAIYA MANSIL, PANNIPPARA P.O., MUTTATHODI, KASARGODE DISTRICT, PIN-671 123.** ## **BY ADV. SMT.SREEJA SOHAN K.** ## **RESPONDENTS:** |**1**|**PRESIDENT**| |---|---| ||**KHILLAR JUMA MASJID,**| ||**PANNIPPARA P.O.,**| ||**MUTTATHODI,**| ||**KASARGODE DISTRICT, PIN-671 123.**| |**2**|**SECRETARY**| ||**KHILLAR JUMA MASJID,**| ||**PANNIPPARA P.O.,**| ||**MUTTATHODI,**| ||**KASARGODE DISTRICT, PIN-671 123.**| ## **W.P.(C) No.18776 of 2019** ## **:-2-:** - **3 TREASURER KHILLAR JUMA MASJID, PANNIPPARA P.O., MUTTATHODI, KASARGODE DISTRICT, PIN-671 123.** - **4 ABDHUL RAHMAN PRESIDENT, KHILLAR JUMA MASJID, PANNIPPARA P.O., MUTTATHODI, KASARGODE DISTRICT, PIN-671 123.** - **5 ALIL THASHKHANT SECRETARY, KHILLAR JUMA MASJID, PANNIPPARA P.O., MUTTATHODI, KASARGODE DISTRICT, PIN-671 123.** - **6 K.H.MUHAMMED TREASURER, KHILLAR JUMA MASJID, PANNIPPARA P.O., MUTTATHODI, KASARGODE DISTRICT, PIN-671 123.** - **7 DISTRICT COLLECTOR KASARGODE, PIN-621 121.** - **8 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, TRIVANDRUM, KERALA, PIN-695001.** - **9 WAKF BOARD REPRESENTED BY ITS SECRETARY, KASARGODE DISTRICT.** - **ADDL. CHIEF EXECUTIVE OFFICER R10. KERALA WAKF BOARD** **(ADDL.R10 IS SUO MOTU IMPLEADED AS PER ORDER DATED 10.07.2019 IN W.P.(C) 18776/19)** **W.P.(C) No.18776 of 2019** ## **:-3-:** **R1-3 BY ADV. SHRI.JAWAHAR JOSE** **R7 & R8 BY ADV.SRI.N.K.THANKACHAN, GOVERNMENT PLEADER** **R9 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD R9-10 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **:-4-:** ## **W.P.(C) No.18776 of 2019** **C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ. -----------------------------------------------W.P.(C) No.18776 of 2019 ----------------------------------------Dated this the 21[st] day of January, 2020** ## **J U D G M E N T** ## **C.K.ABDUL REHIM, J.** The petitioner claims to be a member of 'Khillar Juma Masjid', Pannippara P.O., Muttathodi in Kasaragod district. He claims that he was the elected Secretary of the said Masjid for more than three times, in between the years 1999 and 2005. Even after he became an ordinary member without any official capacity, he used to have contributed financially for the development of the Masjid. Marriage of his four children were conducted at the auspicious of the Masjid in question. When the marriage of one of his sons was scheduled to be conducted on 30.09.2018, Secretary of the Masjid refused to depute the Priest (Khateeb) for ceremonies of the marriage; nor he was prepared to enter ## **W.P.(C) No.18776 of 2019** ## **:-5-:** the marriage in the Register of the Mosque in question, according to the petitioner, only because of the factional dispute prevailing among the members of the Mosque. It is stated that, the petitioner has to bring a priest from another Mosque to conduct the marriage ceremony. Subsequently, when contributions were offered by the petitioner, the officials of the Committee of the Mosque had refused to accept the same, is the allegation. According to the petitioner, he is facing an undisclosed ostracism and that other members of the Masjid are keeping distance from the petitioner and his family members, because of the fear that they will also be expelled from the Mosque in the same manner. It is contended that the action of the respondents in this regard is violative of the fundamental rights of the petitioner to be protected under Articles 14, 15, 21 and 25 of the Constitution of India. Against the stand taken by the respondents, the petitioner had approached various authorities under different complaints. The petitioner has ## **W.P.(C) No.18776 of 2019** ## **:-6-:** approached this Court seeking direction to the District Collector and the District Police Chief to register criminal cases against the respondents, but that writ petition was dismissed through Ext.P2 judgment, holding that the remedy left to the petitioner is to file private complaint before the Magistrate Court. It is stated that, subsequently, the petitioner had approached Kerala State Human Rights Commission, which in turn passed Ext.P3 order directing to forward the complaint to the District Collector, Kasaragod, for appropriate action. In Ext.P3, the Human Rights Commission observed that the petitioner is alleging ostracism whereas the respondents are denying the same. Therefore it was observed that this is a matter purely civil in nature and the petitioner has to approach the Waqf Board. 2. Under the above mentioned circumstances, the above writ petition is filed seeking direction to the respondents 1 to 3 to cancel the undeclared ostracism imposed upon the petitioner and his family members and to ## **W.P.(C) No.18776 of 2019** ## **:-7-:** direct them to allow the petitioner and his family to participate in all the religious activities conducted in the Masjid. Inter alia, the petitioner seeks direction against the District Collector, Kasaragode to ensure that the respondents are not practising any act of ostracism. There is also a prayer in the writ petition to advice the State of Kerala to pass a legislation banning ostracism. The petitioner also seeks a direction against the respondents 1 to 3 to accept the contributions (subscriptions) offered by the petitioner towards membership in the Mosque in question and to permit the children of the petitioner to attend the religious classes conducted in the 'Madrasa' run by the Masjid. 3. The respondents 1 to 3 had filed detailed counter affidavit, wherein it is made clear that the petitioner is a Member of a Juma-ath concerned and he being a Muslim is entitled to have access to any Mosque for worship. It is stated that since 2005 onwards, the petitioner is not actively ## **W.P.(C) No.18776 of 2019** ## **:-8-:** participating in the religious activities conducted in the Mosque concerned and that the marriage of the children of the petitioner was never been intimated to the Juma Masjid or to its officer bearers. The younger son and younger daughter of the petitioner were studying in the Madrasa attached to the Mosque. But they discontinued the studies, years ago. Though the 'Khateeb' took all efforts to bring back the children to the Madrasa, only because of the adamant attitude of the petitioner and the different belief and rituals that the petitioner follows, the children were not sent to the Madrasa. According to respondents 1 to 3, the petitioner though bound for payment of annual subscription, had failed to make payment of the subscription for quite a long time. Even then the office bearers of the Juma-ath never restrained the petitioner or his family members in the matter of their access to the Mosque and participation in the prayers therein. It is ensured through the counter affidavit that, the Juma-ath will never impose any restriction on the ## **W.P.(C) No.18776 of 2019** ## **:-9-:** petitioner or his family members, since the Mosque is a secular place where all the Muhammadans are entitled to perform their devotion according to their conscience. Respondents 1 to 3 had stoutly denied the allegation that they have practised ostracism or social boycott on the petitioner or his family members. It is also stated that the apprehension expressed by the petitioner with respect to burial of the body of dead persons is also totally misplaced, because the Masjid will be bound to permit burial of deadbodies in the grave yard, if the deceased person is a Muhammadan. It is alleged that the petitioner has approached this Court with unclean hands by making frivolous allegations. 4. While considering the reliefs sought for, we take note of the fact that, the directions sought for are against respondents 1 to 3, who are the President, Secretary and Treasurer of a Juma-masjid. At the very outset, a doubt arises as to whether any writ can be issued from this Court ## **W.P.(C) No.18776 of 2019** **:-10-:** in exercise of powers vested under Article 226 against respondents 1 to 3. In other words, question is as to whether the respondents 1 to 3 will fall within the ambit and scope of 'State', coming within the purview of Article 12 of the Constitution of India. The petitioner placed reliance on a judgment of the Rajasthan High Court (Jaipur Bench) in **Abdul Naeem Khan v. Rajasthan Board of Muslim Wakfs and another [(1990) SCC Online Raj 25]** . What is held therein is only that, the Rajasthan Muslim Waqf Board comes within the purview of other authorities within the meaning of Article 12 and is amenable to writ jurisdiction of the High Court. Of course, the Waqf Board is the creature of a statute, the Waqf Act and the Board is statutorily empowered to perform functions which are otherwise to be performed by the State Government alone. The nature and characteristics of a statutorily created Board cannot in any manner be equated with a Waqf or a 'Mutawalli' administering the affairs of the Waqf. ## **W.P.(C) No.18776 of 2019** ## **:-11-:** 5. Apart from the above aspect regarding maintainability of the writ petition, it is evident that respondents 1 to 3 are factually disputing the allegation that they have practised any sort of ostracism against the petitioner or his family members. So also, the respondents 1 to 3 had expressed in clear terms that they have no intention to prohibit the petitioner or his family members in enjoying all the facilities as worshipers in the Mosque in question. Therefore, the claim raised by the petitioner can be decided only by evaluating correctness of the disputed factual aspects, based on evidence and materials, which this Court cannot venture to undertake Article 226 of the Constitution of India. Therefore we are of the considered opinion that, the petitioner, even if aggrieved, can seek remedy only under the common law or under the provisions of the Waqf Act before the appropriate forum. 6. Having confronted with the above situation, learned counsel appearing for the petitioner sought ## **W.P.(C) No.18776 of 2019** ## **:-12-:** permission to withdraw the above writ petition, without prejudice to rights of the petitioner to approach the appropriate authority under the Waqf Act or under the common law. Permission is granted. The above writ petition is hereby dismissed as withdrawn by reserving liberty of the petitioner as mentioned above. All pending interlocutory applications are hereby closed. Sd/- **C.K.ABDUL REHIM JUDGE** Sd/- **T.V.ANILKUMAR JUDGE** ami/ ## **W.P.(C) No.18776 of 2019** ## **:-13-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COY OF THE MARRIAGE CERTIFICATE ISSUED BY IYYAD MASJID DHUSADAT JUMA MASJID.** **EXHIBIT P2 THE TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN WPC 35188/2018 DATED 29.10.2018.** **EXHIBIT P3 THE TRUE COPY OF THE ORDER PASSED BY THE KERALA STATE HUMAN RIGHTS COMMISSION DATED 28.1.2019.** **EXHIBIT P4 THE TRUE COPY OF THE ORDER PASSED BY THE DISTRICT COLLECTOR KASARGODE DATED 15.2.2019. EXHIBIT P5 TO THE TRUE COPY OF THE REPORTS PUBLISHED EXHIBIT P5(3) BY THE MADHYAMAM DAILY DATED 9.10.2018 AND SOME OF OTHER SOCIAL MEDIAS.** **EXHIBIT P6(1) AND THE TRUE COPY OF THE MARRIAGE P6(2) CERTIFICATES DATED 3.10.2013 AND 28.1.2016 ISSUED BY THE SECRETARY, KHILLAR JUMMA MASJID,PANNIPPARA P.O. MUTTATHODI,KASARAGOD DISTRICT. EXHIBIT P7 THE TRUE COPY OF THE COMMUNICATION DATED 28.7.2013 EXHIBIT P8 THE TRUE COPY OF THE COMMUNICATION DATED 11.12.2017 EXHIBIT P9 THE TRUE COPY OF COMMUNICATION DATED 5.11.2018**