IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2008 CORAM THE HONOURABLE MR.JUSTICE K.MOHAN RAM Criminal Original Petition No.17199 of 2008 and Miscellaneous Petition No.1 of 2008 Hajee A.B.F.Noorullah Faizee ... Petitioner -Vs.- 1. The Inspector of Police (L & O) Kattumannarkudi, Cuddalore District 2. The Superintendent of Police, Cuddalore 3. Muslim Jamath of Lalpet Represented by its President J.M.A.Arabic College, Lalpet, Kattumannarkudi, Cuddalore District ... Respondents Criminal Original Petition filed under Section 482 of the Criminal Procedure Code praying for a direction to direct respondents 1 and 2 herein to provide Police protection not only for the third annual Urs festival commencing from 23.07.2008 to 25.07.2008 but also for further such future year festivals on the basis of legal notice dated 08.07.2008. For Petitioner : Mr. S.B.Fazluddin For Respondents : Mr. Hasan Mohamed Jinnah, Govt. Advocate (Crl. Side), for R-1 & R-2. Mr. V.Raghavachari, for R-3. - - - O R D E R Learned counsel for the petitioner submits that the above petition has been filed seeking for a direction to respondents 1 and 2 herein to provide Police protection not only for the third annual Urs festival commencing from 23.07.2008 to 25.07.2008 but also for further such future year festivals on the basis of legal notice dated 08.07.2008. He further submitted that the petitioner is the son of Hazarat Faizee Shah Noori and the said Hazarat Faizee Shah Noori is a saint and the third annual Urs (annual death ceremony of a Saint) is not only being celebrated by his sons but also by the multitudes of his disciples throughout India, Sri Lanka, Malaysia, Singapore and Middle East Countries; during the Urs Ceremony, hoisting of flag and performance of Fathiha (Invocation of Quranic Versus) and ‘Zikir Gathering’ (congregational remembering and reciting the names of God Almighty) and having devotional songs (Khawali) are usually held; https://hcservices.ecourts.gov.in/hcservices/ it is the usual custom of Muslims celebrating Urs of any Saint throughout the world and the same is permitted by Muslim Law but certain elements of Muslim Jamath of Lalpet Town have started creating division of opinion with regard to celebration of Urs and asking the petitioner and his brothers not to celebrate Urs at Lalpet which is against the desire and decision of the disciples and followers of Saint Hazarat Faizee Shah Noori and the third respondent is threatening to interfere with the Urs function to be held from 23.07.2008 to 25.07.2008 and because of that there is likelyhood of breach of peace in-and-around the Lalpet area which necessitated the petitioner to approach respondents 1 and 2 seeking necessary police protection to celebrate the Urs festival. 2. Learned counsel for the petitioner further submits that last year also, since there was interference by the third respondent, the petitioner filed Crl.O.P.No.22570 of 2007 seeking for a similar direction and the learned Judge of this Court by an order dated 26.07.2007 directed the police authorities to provide police protection and the said order was passed in the presence of the third respondent herein and inspite of the said orders, respondents 1 and 2 are again insisting the petitioner to obtain a similar order for celebrating the Urs festival this year also, hence the petitioner has filed the above petition before this Court. He further submitted that though the order dated 26.07.2007 in Crl.O.P.No.22570 of 2007 will enure to the benefit of the petitioner for celebrating the Urs festival this year also respondents 1 and 2 are insisting for getting a similar order from this Court, which according to the learned counsel for the petitioner is unsustainable. He further submitted that certain people of Lalpet have already filed a Civil Suit in O.S.No.45 of 2008 on the file of the Learned Subordinate Judge of Chidambaram for declaration and consequential relief of injunction and the same is pending in that Court and no order of interim injunction has been passed by that Court in the interlocutory application filed therein and the said interlocutory application was adjourned to 18.07.2008 and when admittedly the Civil Suit filed by the people of Lalpet is pending it is not open to the third respondent-Jamath to interfere with the rights of the petitioner from celebrating the Urs festival. He further submitted that invitations have been extended for celebrating the Urs festival between 23rd and 25th July 2008. He further submitted that the petitioner’s father, being a Saint, his burial place is treated as a Shrine and offerings are made to the Shrine in reverence by large number of people. According to the learned counsel, the function of Wakf under the Muslim Wakfs Act being much wider, objects held in reverence and veneration by usage will also be covered as valid objects of Wakf and therefore submitted that the contention of the third respondent that the petitioner’s father is not a Saint and the place of his burial cannot be considered to be a Shrine has to be rejected. He further submitted that unless the police protection sought for is directed to be given by respondents 1 and 2 law-and-order problem will arise. https://hcservices.ecourts.gov.in/hcservices/ 3. In support of his above contentions the learned counsel for the petitioner relied upon the following decisions:- (i) A.I.R. 1954 Allahabad 88 (Lucknow Bench) (S.C.Board of Waqf v. Sirajul Haq) and (ii) A.I.R. 1921 Bombay 338 (Advocate-General of Bombay v. Yusuf Ali Ibrahim). 4. A detailed counter affidavit has been filed by the third respondent disputing the various contentions put forth in the above petition. The very maintainability of the above petition filed under Section 482 of the Criminal Procedure Code is questioned. In the counter affidavit it is stated that there are 15 mosques at Lalpet and the congregation of 15 mosques is the Muslim Jamath of Lalpet. It is contended in the counter affidavit that the third respondent being not a ‘legal entity’ the petition against the third respondent is not maintainable and the third respondent contends that the father of the petitioner is not a Saint. It is stated in the counter affidavit that it is not the customs of the Muslim of Lalpet to celebrate Urs at any Dharga; a person who expired three years ago is not entitled to performance of Urs ceremony; the performance of Urs ceremony is contrary to the tenets of Islam and Custom and practice of the village; the Muslim Law does not permit the celebration of Urs of Saints; the alleged customs of flag hoisting, singing of Khawali are abuse to fundamental tenets of the faith. It is further stated in the counter affidavit that the Lalpet Town has two Kabaristhan or graveyards and these two graveyards serve as place of burial ground for the entire Muslim population of Lalpet and they are recognised wakf for more than a century; the body of the petitioner’s father has been buried in his house without permission of the Lalpet Town Panchayat and challenging the unauthorised burial O.S.No.50 of 2008 seeking for mandatory injunction to remove the corpes has been filed before the Civil Court, Chidambaram, by the villagers in a representative capacity. Likewise another suit in O.S.No.45 of 2008 has been filed against the petitioner and others before the very same Court for a declaration that the defendants are not entitled to perform Urs and any religious celebration to their buried father in the suit property so long the dead body of Abdul Basher is buried in the same property and in that suit a consequential relief of injunction restraining the defendants from performing the Urs has also been sought for. It is further contended in the counter affidavit that when disputed questions of fact are raised before this Court, this Court may not exercise the powers under Section 482 of the Cr.P.C. It is further contended that the petitioner is guilty of suppression of material facts as he has not disclosed the pendency of O.S.No.50 of 2008. https://hcservices.ecourts.gov.in/hcservices/ 5. In the counter affidavit filed by the third respondent it is further stated that in December 2006 the Muslim Jamath of Lalpet held an emergency meeting along with the petitioners and it was resolved that the yearly fathiah can be performed but without flag hoisting, sandal paste sprinkling and singing of Khawali and the petitioner and his brothers have accepted the resolution and signed the document and having accepted the same the petitioner has suppressed the same and as such the petitioner has not approached this Court with clean hands. It is further stated that the Wakf Board has passed an order directing the petitioner to perform fathiah as he has done in December 2006 and the said order has not been challenged by the petitioner and the same has also been not brought to the notice of this Court. 6. The above said contentions were reiterated by Mr.Lakshmi Narayanan learned counsel for the third respondent. He brought to the notice of this Court a resolution said to have been passed in the Lalpet Town Panchayat dated 17.07.2008 whereby the Town Panchayat has passed a resolution to remove the body of the petitioner’s father from the place of its burial as the same has been buried in a residential place. In support of his contentions, he relied upon the following decisions:- (i) 1998-1-L.W. 69 S.N. (Sunnath Janath Mosque Committee, etc. v. The Land Administration Commissioner, etc.) (ii) (2004) 12 Supreme Court Cases 770 (Commr. of Police v. Acharya Jagadishwarananda Avadhuta) (iii) (2006) 4 Supreme Court Cases 501 (P.R.Muralidharan v. Swami Dharmananda Theertha Padar) and (iv) (2007) 6 Supreme Court Cases 517 (Moran M. Baselios Marthoma Mathews II v. State of Kerala) 7. On the aforesaid submissions made by the learned counsel for the petitioner and the third respondent, Mr. Hasan Mohamed Jinnah, learned Government Advocate (Crl. Side) for respondents 1 and 2 was heard. He submitted that earlier proceedings under Section 107 of the Criminal Procedure Code were initiated against both the parties and a Peace Committee Meeting was held by the Tahsildar, Kattumannar Taluk, at 11.00 a.m. on 15.07.2008 in the presence of the Tahsildar and the Deputy Superintendent of Police, Sethiathope in which the villagers of Lalpet, the brothers of the petitioner and others participated and in that Peace Committee Meeting the following decisions were taken, namely, (i) Urs festival of late Thiru. Abdul Basher should be conducted after getting orders from the Court, (ii) if the orders are not obtained from the Court festival should not be conducted, (iii) in the event of obtaining an order of injunction on behalf of the villagers of Lalpet no festival whatsoever should be conducted and (iv) if both the parties fail to obtain orders from the Court ordinary festival can be conducted. Learned Government Advocate fairly submitted that respondents 1 and 2 will abide by the directions, which may be issued by this Court in the above petition. https://hcservices.ecourts.gov.in/hcservices/ 8. I have carefully considered the said submissions made by the respective learned counsel. 9. Since an objection has been raised by the third respondent regarding the very maintainability of the above petition filed under Section 482 of the Criminal Procedure Code the same has to be considered. At the outset, for considering that question, it will be useful to refer to the following decisions relied upon by the learned counsel for the third respondent. In the decision reported in (2006) 4 Supreme Court Cases 501 (referred to supra) in paragraphs 11 to 13 the Apex Court has laid down as under:- “11. The question is a contentious one. Construction of the said trust and the rights and obligations thereunder were in question. The first respondent filed a suit in that behalf. The said suit was dismissed. In terms of Order 9 Rule 9 of the Code of Civil Procedure another suit would not be maintainable at his instance. We have noticed hereinbefore that another suit being OS No. 30 of 2002 is pending in the Court of Munsif. The High Court, despite noticing the said fact, sought to usurp the jurisdiction of the civil court. It, as noticed hereinbefore, determined the contentious issues which were required to be proved in terms of the provisions of the Evidence Act. 12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. Respondent 1 who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order 9 Rule 9 of the Code of Civil Procedure stare on his face. He, therefore, could not have filed a writ petition for getting the selfsame issues determined in his favour which he could not do even by filing a suit. Indeed the jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution, but while doing so it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral https://hcservices.ecourts.gov.in/hcservices/ evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant herein, as noticed hereinbefore, has raised a contention that he alone was ordained to hold the said office as per the bye-laws of the trust. The qualification of the first respondent to hold the office was also in question. In this view of the matter, we are of the opinion that such disputed questions could not have been gone into by the High Court in a writ proceeding. 13. Furthermore, the jurisdiction of the civil court is wide and plenary. In a case of this nature, a writ proceeding cannot be a substitute for a civil suit.” In the decision reported in (2007) 6 Supreme Court Cases 517 (referred to supra) the aforesaid decision has been referred to and relied upon and in paragraph 12 it has been held as follows:- “12. Such might have been the contentions of the appellants before the High Court or before us in the special leave petitions, but we have no doubt in our mind that such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of Churches could not have been the subject- matter for determination by a writ court under Article 226 of the Constitution of India in the garb of grant of police protection to one or the other appellants.” 10. A close reading of the above two decisions makes it abundantly clear that the petition under Section 482 of the Criminal Procedure Code under the guise of seeking a direction to the Police authorities to give protection to the petitioner to conduct the third annual Urs festival cannot be made a forum for adjudicating on civil rights. It is not open to the petitioner to seek such a direction in respect of the alleged right of the petitioner to conduct the Urs festival which remains to be adjudicated upon and when such an adjudication also is yet to be got done in a properly constituted civil suit, it would be an abuse of process for the petitioner to approach this Court under Section 482 of the Criminal Procedure Code. It is needless to point out that the scope of interference under Section 482 of the Criminal Procedure Code and under Article 226 of the Constitution of India are complimentary to each other and the above legal principles laid down by the Apex Court in the context of considering the scope of interference under Article 226 of the Constitution of India equally applies with respect to the scope of interference under Section 482 of the Criminal Procedure Code. The Apex Court has categorically held that disputed questions of fact cannot be gone into by the High Court in a writ proceedings. Here, in this case, admittedly two civil suits are pending and the petitioner and his brothers have entered appearance and they are contesting the suit and admittedly no interim order of injunction has been granted either in favour of the petitioner or in favour https://hcservices.ecourts.gov.in/hcservices/ of the third respondent herein. The direction sought for in the above petition is not to give effect to any order or decree passed in favour of the petitioner by a competent Civil Court and that being so in the considered view of this Court the above petition cannot be entertained and the disputed questions of fact cannot be gone into. 11. The contention of the learned counsel for the petitioner that since for conducting the Urs festival last year this Court by order dated 26.07.2007 passed in Crl.O.P.No.22570 of 2007 directed the police authorities to provide police protection, similar direction should be given by this Court for conducting the festival this year also cannot be countenanced for the following reasons:- Admittedly on the date when the above order was passed by the learned Judge the civil suits referred to above were not pending and no order by the Wakf Board had been passed at that time but the third respondent had only approached the Wakf Board at that time and the same had also been taken note off by the learned Judge and only as a temporary measure the directions were came to be passed, therefore the said order cannot be relied upon by the petitioner for all times to come. 12. As laid down by the Apex Court in the aforesaid two decisions disputed questions of fact cannot be gone into and the question whether the petitioner’s father is a Saint and whether the place of his burial can be called as a Shrine or Wakf and whether Urs festival can be conducted and whether such Urs festival can be conducted there and whether such Urs festival is permitted by Muslim Law or not are all disputed questions of fact which cannot be gone into by this Court in this petition but such questions have to be gone into and adjudicated only by the Civil Courts. Therefore the respective contentions put forth by the petitioner as well as the third respondent on these aspects is not being considered by this Court and no opinion is being expressed touching upon the same as otherwise it will affect the adjudication of the suits pending before the Civil Courts. 13. However it is pertinent to point out that it is an undisputed fact that during 2006 the petitioner and his brother have agreed to conduct the Urs festival without flag hoisting, sprinkling of sandal paste and singing of Khawali and the same has also been taken note off by the Wakf Board and accordingly the Wakf Board has passed an order on 02.08.2007 permitting the conducting of Urs festival for 2008 in a similar manner, if necessary with police protection. Learned counsel for the third respondent had also fairly submitted that the third respondent has no objection for conducting the Urs festival by the petitioner if the petitioner does not hoist the flag, avoids sprinkling of sandal paste and singing of Khawali. The above said material facts and submissions made by the learned counsel for the third respondent is hereby recorded and in the light of the same the above Criminal Original Petition is disposed of with the following directions:- https://hcservices.ecourts.gov.in/hcservices/ Respondents 1 and 2 are hereby directed to give police protection to the petitioner for conducting Urs festival between 23rd and 25th July 2008 and such Urs festival can be conducted by the petitioner without flag hoisting, sprinkling of sandal paste and singing of Khawali. It is made clear that the above said direction will apply only for this year’s Urs festival and it cannot be quoted and relied upon as a precedent in the future in any court proceedings. It is also made clear that any observation made by this Court in this order or the observations contained in the order dated 26.07.2007 passed in Crl.O.P.No.22570 of 2007 should not influence the Court’s concerned which are dealing with the civil suits referred to above in arriving at their independent decisions. It is also made clear that this Court has not expressed any opinion on the merits of the case. The connected MP is closed. Srk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Inspector of Police (L & O) Kattumannarkudi, Cuddalore District 2.The Superintendent of Police, Cuddalore 3.The Public Prosecutor, High Court of Madras, Chennai • 1 cc to Mr. S. B. Fazhuddin, Advocate in SR No. 39194 • 1 cc to Mr. V. Raghavachari, Advocate in SR No. 39139 KSJ(CO) SR/22.7.2008 Order in Crl.O.P.No.17199 of 2008 and M.P.No.1 of 2008 https://hcservices.ecourts.gov.in/hcservices/