V.P. Kunhahammed Kutty v. Sub Inspector of Police Nilambur; Circle Inspector of Police Nilambur; Superintendent of Police Malappuram; Komulli Musthafa; K. Abdul Gafoor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** ## **WP(C).No.16516 OF 2020(L)** ## **PETITIONER/S:** **V.P.KUNHAHAMMED KUTTY, AGED 69 YEARS, S/O. V.P.C. MUHAMMED, VALIYAPEEDIYEKKAL HOUSE, MAMPAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. (MUTHAVALLY, PULLIPPADATH JUMA-ATH PALLI).** ## **BY ADV. SRI.R.RAMADAS** ## **RESPONDENT/S:** |**1**|**THE SUB INSPECTOR OF POLICE,**| |---|---| ||**NILAMBUR, MALAPPURAM DISTRICT, PIN-676 542.**| |**2**|**THE CIRCLE INSPECTOR OF POLICE,**| ||**NILAMBUR, MALAPPURAM DISTRICT, PIN-676 542.**| |**3**|**THE SUPERINTENDENT OF POLICE,**| ||**MALAPPURAM DISTRICT, PIN-676 542.**| |**4**|**KOMULLI MUSTHAFA,**| ||**S/O. VEERANKUTTY, KOMULLI HOUSE, PULLIPPADAM P.O.,**| ||**MAMPAD, MALAPPURAM DISTRICT, PIN-676 542.**| |**5**|**K.ABDUL GAFOOR,**| ||**S/O. ALI HASSAN, MAMPAD, PULLIPPADAM P.O.,**| ||**MALAPPURAM DISTRICT, PIN-676 542.**| ||**R4 & R5 BY ADV. SRI.P.A.ABDUL JABBAR**| ||**R1 TO R3 BY SRI P P THAJUDEEN, GOVERNMENT**| ||**PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16516 OF 2020(L)** **2** ## **JUDGMENT** The petitioner states that he is the Muthawalli of Pullipadath Jumaath Palli and its wakf properties. His appointment has been approved as per Ext.P1 proceedings by the Kerala State Wakf Board. According to him, he is administering and managing the affairs of the above Wakf and its properties from 27.7.2017 onwards. His grievance is that the party respondents and their men are interfering with the affairs of the Wakf. At his instance, the Kerala State Wakf Board has requested the SHO, Nilambur police station to extend adequate protection to the petitioner in his capacity as the Muthawalli to administer the Wakf properties. He contends that the petitioner has already instituted O.S.No.2 of 2019 before the Wakf Board praying for permanent prohibitory injunction restraining the respondents therein which include some of the party respondents herein from interfering with the management of the Wakf. He states that one K.P.Ummer and one P.Ashraf, who are supporters of respondents 4 and 5, have instituted O.S.No.5 of 2019 before the Wakf Tribunal, Kozhikode seeking a declaration that the Wakf properties belongs to the Pullippadom Juma Ath Palli Committee and also for restraining the petitioner herein from creating any documents. Both these suits have been renumbered and are pending as O.S.No.31 of 2019 and O.S.No.81 of 2019 before the Wakf Tribunal, **WP(C).No.16516 OF 2020(L)** **3** Kozhikode. It is also stated that a certain B.P.Haider Ali has filed O.A. No.62 of 2019 before the Wakf Tribunal, Kozhikode challenging Ext.P1 order by which the petitioner has been appointed as Muthawalli of the Wakf. He states that in none of these cases, interim orders interdicting the petitioner from acting as the Muthawalli has been issued by the court. According to the petitioner, the main income of the Wakf is from a rubber plantation situated in Pullippadom Village. He contends that on 14.7.2020, the supporters of respondents 4 and 5 tried to obstruct and manhandle the workers of the petitioner and threatened them though they have no authority or right to do so. In the said circumstances, the petitioner is stated to have submitted Ext.P4 representation before the respondents 1 to 3. His grievance is that no action has been taken. It is in the afore circumstances that the petitioner is before this Court seeking to issue necessary directions to the respondents 1 to 3 to afford protection to the petitioner to carry out the tapping of the trees employing his workers and for a further direction to interdict the party respondents from causing any obstruction. 2. The respondents 4 and 5 have filed a counter affidavit wherein they assert that the petitioner is not the Muthawalli of the Pullipadath Juma Ath Palli and its Wakf properties. It is stated that the Wakf is being administered by a managing committee and petitioner is the President of the committee so elected. The 5th respondent states that he is the Joint **WP(C).No.16516 OF 2020(L)** **4** Secretary of the Committee. He contends that Ext.P1 proceedings and Ext.P2 certificate are fraudulently obtained by the petitioner without the knowledge of the Muthawalli committee. The respondents contend that the intention of the petitioner is to snatch the administration of the wakf by the Kerala Nadvathul Mujahideen. They contend that the Wakf Inspector had conducted an enquiry and had submitted Ext.R4(a) report and finding that the the income from the property submitted by the petitioner was not correct, Ext.R4(b) notice has been served upon him warning of initiation of proceedings under Section 61(2)(b) of the Wakf Act. The respondents denied that they have interdicted the workers from tapping the rubber trees. 3. The petitioner has filed a reply controverting the contentions raised by the party respondents in their counter. 4. I have heard Sri. R. Ramadas, the learned counsel appearing for the petitioner, Sri. P.A.Abdul Jabbar, the learned counsel appearing for the respondents 4 and 5 and the learned Government Pleader. 5. Having considered the submissions, I find that the dispute is in connection with the tapping of rubber trees from a rubber plantation having an extent of 2.34 Acres. The records reveal that civil litigations are pending before the Wakf Tribunal, Kozhikode. When the petitioner asserts that he is the Mutawalli of the Wakf, the respondents contend that his appointment as Muthawalli is under challenge in O.A.No.62 of 2019 on the file of the Wakf **WP(C).No.16516 OF 2020(L)** **5** Tribunal. In other words, there is a dispute between two factions and even the title asserted by the petitioner is under challenge before the Wakf Tribunal. In cases such as the instant one, it would be a sound use of discretion to leave the party to establish his right before the civil court where litigations are pending as both sides will have an opportunity to advance their respective contentions. A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to the writ petitioner cannot be made a forum for adjudicating on civil rights. It is for the petitioner to establish his right before the civil court and by merely producing some disputed documents before this Court, this Court will not be justified in granting the relief sought for. It is by now settled that a writ of mandamus directing the police authorities to give protection to the person or property of a writ petitioner can be issued when the court is satisfied that there is a threat to the person and the authorities have failed to perform their duties. However, it is quite a different thing to grant relief to a person either to allegedly protect his right to property or his right to an office, especially when the pleading themselves disclose that disputed questions are revolved. (See **State of M.P. and Ors. v. Bhailal Bhai and Ors.[1] , P.R.Muralidharan v. Swami Dharmananda Theertha Padar[2]** . It is also trite that the special remedy provided under Article 226 of the Constitution of India is not intended to supersede completely the > 1 [AIR 1964 SC 1006] > 2 [(2006) 4 SCC 501] **WP(C).No.16516 OF 2020(L)** **6** modes of obtaining reliefs by an action in a civil court or to deny defences legitimately open in such actions. In that view of the matter, I find no reason to issue an order of police protection. The parties shall approach the Civil Court and secure appropriate orders and if the same is violated, they can very well seek orders for police protection from the Civil Court itself. Reserving such rights, this writ petition will stand dismissed. The police shall ensure that none of the parties take law into their own hands and do not commit any act which may lead to breach of peace. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** IAP **WP(C).No.16516 OF 2020(L)** **7** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS DATED 27.7.2017 ISSUED BY KERALA STATE WAKF BOARD APPROVING THE PETITIONER'S APPOINTMENT AS MUTHAWALLI OF THE ABOVE WAKF.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 28.7.2017 ISSUED BY THE WAKF BOARD.** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 25.7.2018 ISSUED BY THE DIVISIONAL WAKF OFFICER, KERALA STATE WAKF BOARD, MANJERI TO THE IST RESPONDENT HEREIN.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 14.7.2020 BEFORE THE RESPONDENTS 1 TO 3 BY THE PETITIONER REQUESTING TO PROVIDE NECESSARY POLICE ASSISTANCE TO PREVENT THE ILLEGAL AND HIGH HANDED ACTION OF THE RESPONDENTS 4 AND 5 AND THEIR MEN.** **EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 30.08.2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 15.09.2020 FROM THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE LAND TAX RECEIPT DATED 02.04.2019 ISSUED BY THE VILLAGE OFFICER, PULLIPADAM.** - **EXHIBIT P8 TRUE COPY OF ORDER DATED 24.06.2019 ISSUED BY THE WAKF BOARD.** - **EXHIBIT P9 TRUE COPY OF THE LAND TAX RECEIPT DATED 01.06.2020 FOR THE PERIOD 2020- 2021.** **EXHIBIT P10 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 24.06.2020 FROM THE VILLAGE OFFICER, PULLIPPADAM TO THE PETITIONER.** **WP(C).No.16516 OF 2020(L)** **8** **RESPONDENT'S/S EXHIBITS: EXHIBIT R4(a) TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY WAQF INSPECTOR BEFORE THE WAQF BOARD. EXHIBIT R4(b) TRUE COPY OF THE NOTICE ISSUED BY THE DIVISIONAL WAQF OFFICER OF THE WAQF BOARD EXHIBIT R4(c) TRUE COPY OF THE NOTICE ISSUED BY THE DIVISIONAL WAQF OFFICER OF THE WAQF BOARD EXHIBIT R4(b) TRUE COPY OF THE LETTER ISSUED BY THE DIVISIONAL WAQF OFFICER OF THE WAQF BOARD** **//TRUE COPY// P.A.TO JUDGE**