IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(C).No. 21211 of 2010(B) ---------------------------------------- PETITIONER(S): ------------------------ C.ASHRAF HAJI,S/O.USMAN, KUNNULLATHIL HOUSE,PARINGATHOOR AMSOM AND PULIYANAMBRAM DESOM,KANNUR DISTRICT. BY ADVS. SRI.V.V.ASOKAN, SRI.P.P.RAMACHANDRAN. RESPONDENT(S): --------------------------- 1. CIRCLE INSPECTOR OF POLICE, CHOKLI, THALASSERY-670 101. 2. SUB INSPECTOR OF POLICE, CHOKLI POLICE STATION, THALASSERY-670 101. 3. P.P.VASU, S/O.GOVINDAN, PUTHAN PURAYIL HOUSE,OLAVILAM, P.O.OLAVILAM,673 313 PRESIDENT, SREE NARAYANA SEWA SAMITHI, P.O.OLAVILAM, MONTHAL, THALASSERY. 4. V.P.SURESH BABU,S/O.KRISHNAN, PUTHEN PURAYIL HOUSE,P.O.OLAVILAM, THALASSERY, PIN-673 313. *ADDL.R5 IMPLEADED: R5. THE DISTRICT COLLECTOR, KANNUR. *(ADDL. 5TH RESPONDENT IS SUO-MOTU IMPLEADED AS PER ORDER DTD. 6/09/2010 IN WP(C). R1, R2 & R5 BY GOVERNMENT PLEADER SRI.T.K.VIPINDAS R3 & R4 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, BY ADV. SRI.S.SUJIN, SMT.NITA.N.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21211/2010 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 3493/2010 DTD. 3/02/2010. P2: COPY OF PLAINT IN O.S.NO.267/2010 DTD. 19/06/2010. P3: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 1/07/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.21211 of 2010 ***************************** Dated this the 31st day of January, 2011 JUDGMENT BASANT, J. The petitioner has come to this Court with this petition for issue of directions under Article 226 of the Constitution of India to respondents 1 and 2 to afford police protection to the petitioner against the unlawful, illegal and violent obstruction raised by respondents 3 and 4 and their men against the petitioner's attempt to conduct a Madrassa in a building belonging to the petitioner. 2. According to the petitioner, he has put up a commercial building. One room in the commercial complex has been entrusted in the possession of a committee for the purpose of running a Madrassa. Respondents 3 and 4 are raising unsustainable objections against the establishment and running of Madrassa in such commercial building. It is, in these circumstances, that the petitioner has come to this Court for issue of directions to respondents 1 and 2 for grant of police protection to the petitioner. W.P(C) No.21211 of 2010 2 3. The District Collector was impleaded as the additional 5th respondent suo motu by this Court. According to the petitioner, he had constructed the building. Occupancy certificate was not issued by the Pancyayat. In these circumstances, the petitioner had come to this Court with W.P(c) No.3493 of 2010. In that petition, directions were issued vide judgment dated 03.02.2010 to the Panchayat to consider the application of the petitioner for issue of occupancy certificate and issue appropriate orders. Occupancy certificate was issued. Construction work is complete. Now the petitioner wants to start a Madrassa in one of the rooms in the commercial building. That is opposed by respondents 3 and 4, who happened to be office bearers of Sree Narayana Seva Samithi. That Samithi was the 3rd respondent in the earlier W.P(c) No.3493 of 2010. The petitioner contended that respondents 3 and 4 have no legal right to obstruct or object to the functioning of the Madrassa in the building. He hence prayed issue of directions for police protection. 4. Respondents 3 and 4 have entered appearance. They oppose the application. They contend that starting of a Madrassa in such a commercial building is likely to upset and W.P(C) No.21211 of 2010 3 damage the delicate balance of communal harmony in that area. They further point out that the petitioner had come to Court and had claimed occupancy certificate in W.P(c) No.3493 of 2010 on the specific assertion that he does not intend to start a Madrassa in the building and that it was meant only for use as a commercial building. The petitioner, who after securing the judgment in W.P(c) No.3493 of 2010 on 03.02.2010, on the basis of such assertions, cannot be permitted to come to this Court again with this petition on 07.07.2010 after securing the occupancy certificate with totally different and contradictory assertion that he wants the building to be used now for the purpose of running a Madrassa. 5. The learned counsel for respondents 3 and 4 submits that bona fides is not a virtue that one can discover or invent in the hands of the petitioner. In these circumstances, relief may not be granted to the petitioner, it is contended. 6. The learned counsel for respondents 3 and 4 further submits that the petitioner has no case that he wants to run a Madrassa. His case is only that he wants the building to be entrusted to some other person for running a Madrassa. Inasmuch as the person who wants to run the Madrassa has not W.P(C) No.21211 of 2010 4 come before Court, on that technical reason also, the prayer for police protection may not be granted, submits the learned counsel for respondents 3 and 4. 7. The learned Government Pleader after taking instructions from respondents 1, 2 and 5 submits that there was strong objection earlier that a Madrassa ought not be opened in the commercial building belonging to the petitioner. Local people had raised objections to this and it is in that context that the occupancy certificate was not issued. However, the petitioner had asserted before this Court that he shall not use the building for running a Madrassa. Specifically the following passage in para.3 of W.P(c) No.3493 of 2010 is relied upon by all the respondents. “Para.3: .............................................. ............................................................ The petitioner submits that he does not wish or propose to use the building as a madrassa. He constructed the building with his desire to utilize the building for commercial use.” The petitioner in that petition relied on a report which was marked as Ext.P4 in that proceedings issued by the Village Officer to the Tahsildar in which it was stated that the building is not likely to be used for running a Madrassa. The petitioner W.P(C) No.21211 of 2010 5 cannot be permitted to blow hot and cold over the issue simultaneously. Having misled this Court and the authorities to believe that the building shall not be used for the purpose of running a Madrassa and that it shall be used only for the purpose of running commercial activities, the petitioner, after securing the occupancy certificate, cannot within a period of 5 months be permitted to come to this Court again with a totally contradictory assertion, submits the learned Government Pleader. 8. The learned Government Pleader submits that if such a Madrassa were opened in the building belonging to the petitioner by anyone, it is likely to create deep unrest and breach of peace in the locality. Though respondents 3 and 4 now claim that they are not the present office bearers of the Sree Narayana Seva Samithi, they were former office bearers and the said Samithi raising serious objections to the opening of the Madrassa in the building. The learned Government Pleader submits and the District Collector in his statement reiterates that opening a Madrassa as proposed by the petitioner in the commercial building is likely to have deleterious impact on the peaceful law and order situation in the locality. W.P(C) No.21211 of 2010 6 9. We wanted the learned Government Pleader to explain how and under what circumstances running of a Madrassa can be objected to. We must say that cogent and satisfactory reasons have not been shown before us. However, we find merit in the submission that the extra ordinary constitutional jurisdiction under Article 226 of the Constitution cannot and need not be invoked in favour of persons like the petitioner who had, when he came to this Court earlier to obtain the occupancy certificate, made specific assertions that the building is proposed to be used only for commercial purposes and the same shall not be used for running a Madrassa. That piece of conduct on the part of the petitioner prompts us not to grant the extra ordinary relief claimed in this petition. 10. We are not expressing any opinion on the question whether the petitioner is entitled to change his decision and run a Madrassa in the building. If he has such a case, he will certainly have to go to the appropriate court and establish his right to run a Madrassa in the building. Appropriate orders will have to be sought from such forum and thereafter only, the petitioner can assert his right to run a Madrassa. We do not lose sight of the fact that the petitioner is not claiming to run a W.P(C) No.21211 of 2010 7 Madrassa. He is only seeking a right to hand over the possession of a building to a non specified person for running the Madrassa. The prayer of the petitioner for police protection to run a Madrassa, which he admittedly does not propose to run himself, is unsustainable. We do not know who, if at all, wants to run the Madrassa. The name of that person is not revealed. He has not sought any assistance from Court. The prayer for police protection for the petitioner to run a Madrassa is, in these circumstances, clearly misconceived. We are satisfied that the relief need not be granted. 11. This Writ Petition is, in these circumstances, dismissed. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/