IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 WP(C).No. 21305 of 2011(K) -------------------------- PETITIONER(S): --------------- S.V.CHERIYAKOYA THANGAL, S/O.U.P.KOYAMMAKOYA THANGAL,AGED 51 YEARS, SHAIKINTAVEED,ANDROTT,LAKSHADWEEP. BY ADV. SRI.SHYAM PADMAN RESPONDENT(S): --------------- 1. THE EXECUTIVE MAGISTRATE,ANDROTH ISLAND, UNION TERRITORY OF LAKSHADWEEP-682551. 2. THE ADMINISTRATOR,UNION TERRITORY OF LAKSHADWEEP,KAVARATTI-682555. 3. LAKSHADWEEP STATE WAKF BOARD,UNION TERRITORY OF LAKSHADWEEP,KAVARATTI-682555. 4. S.V.P.POOKOYA,S/O.SAYED KOYA,AGED 69 YRS SHAIKINTE VEEDU,PADIPPURA,ANDROTH, LAKSHADWEEP-682551. SC SRI.S.RADHAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21305 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : THE TRUE COPY OF THE APPLICATION DATED 30.6.09 SUBMITTED BEFORE THE 3RD RESPONDENT EXT.P2 : THE TRUE COPY OF THE APPLICATION IN W.C.NO.1/2010 DATED 23.12.2009 EXT.P3 : TRUE COPY OF THE ORDER DATED 31.7.09 IN S.A.698/1999 EXT.P4 : THE TRUE COPY OF THE JUDGMENT DATED 17.12.09 IN S.A.698/1999 EXT.P5 : THE TRUE COPY OF THE JUDGMENT DATED 17.2.2010 IN W.P.(c). 1071/2010 EXT.P6 : THE TRUE COPY OF THE JUDGMENT DATED 2.3.2010 IN W.A.359 OF 2010 EXT.P7 : THE TRUE COPY OF THE INTERIM ARRANGEMENT MADE BY THE 3RD RESPONDENT EXT.P8 : THE TRUE COPY OF THE ORDER DATED 9.4.2010 IN W.P.(c).12353 OF 2010 EXT.P9 : THE TRUE COPY OF THE ORDER DATED 9.4.2010 IN W.P.(C).12353 OF 2010 EXT.P10 : THE TRUE COPY OF THE JUDGMENT DATED 25.5.2010 IN WAKF O.P.1/2010 OF THE WAKF TRIBUNAL, LAKSHADWEEP EXT.P11 : THE TRUE COPY OF THE ORDER DATED 13.8.2010 IN CRP 299 OF 2010 EXT.P12 : TRUE COPY OF THE JUDGMENT DATED 27.10.2010 IN W.P.(C).32703 OF 2010 EXT.P13 : TRUE COPY OF THE JUDGMENT DATED 31.1.2011 IN W.P.(C).1487 OF 2011 EXT.P14 : THE TRUE COPY OF THE APPLICATION DATED 30.7.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXT.P15 : TRUE COPY OF THE DIRECTION DATED 1.8.2011 OF THE 1ST RESPONDENT //TRUE COPY// P.A TO JUDGE ANTONY DOMINIC, J .............................................. W.P.(C).21305/2011 .............................................. Dated this the 5th day of August, 2011 JUDGMENT The issue raised in this writ petition is regarding the validity of Ext.P15, an order passed by the Executive Magistrate, Androth Island, regulating the manner in which a group led by the petitioner and another group led by the fourth respondent are to conduct the Holy Ramzan prayers. 2. The case of the petitioner is that Ext.P15 order of the the Executive Magistrate is against Ext.P7 order of the Wakf Board, Ext.P10 order of the Wakf Tribunal and Ext.P11 order passed by a Division Bench of this Court, which according to the petitioner, recognized his exclusive right to conduct prayers in the Ujra Mosque, Androth Island. 3. On the other hand, the learned counsel for the fourth respondent would contend that Ext.P7 order was modified by the Wakf Tribunal in Ext.P10, which was confirmed in Ext.P11 and that therefore, Ext.P15 order of the Executive Magistrate, does not call for any interference. W.P.(C).21305/11 2 4. Ext.P7 is an order passed by the Wakf Board on 5.4.2010 which shows that an interim arrangement was made by which the petitioner and the fourth respondent were appointed as Joint Muthawallies of the Mosque in question. Condition Nos.1 and 3 of Ext.P7 order, being relevant are extracted below for reference. 1. The Board appoint Haji S.V.Cheriyakoya Thangal the Respondent and S.v.P.Pookoya the first respondent as joint Muthawalli to the mosque Ujra and to its properties of Androth Island. They are directed to function as Joint Muthawallies and a report there on shall be submitted to the Wakf Board within Seven days of the receipt of this order. If any one of the Muthawalli failed to report within the stipulated period of time, his appointment as Joint Muthawalli shall stand terminated to function as joint muthawalli to the mosque Ujra and its properties of Androth Island. 3. The conduct of Uroos, Ratheeb and Khatham are to be carried out and performed by the defacto Shaik and Muthawalli Haji S.V.Cheriyakoya Thangal and such functioning of Shaik is to be continued till the final disposal of the case. The income and expenditure statement of such conduct of religious functions shall be submitted to the Wakf Board for verification and record. W.P.(C).21305/11 3 5. Condition No. 3 extracted above shows that a special privilege was conferred in favour of the petitioner to conduct the three items of prayers. The fourth respondent challenged Ext.P7 order before this Court in W.P.(C).12353/2010. In that writ petition, this Court passed Ext.P8 order, declining to interfere with Ext.P7 and relegating the parties to work out their remedies before the Wakf Tribunal. Subsequently the writ petition itself was closed by Ext.P9 judgment. 6. Accordingly, appeal was filed by the fourth respondent and three others before the Wakf Tribunal as O.P.1/2010. In that O.P, the Tribunal passed Ext.P10 judgment, which shows that on 20.4.2010, condition No.3 of Ext.P7 order which is extracted above, was modified by the Tribunal. The details of this Order are stated in paragraph 7 of Ext.P10, which reads as under:- “After hearing the counsel for the petitioners by order dated 20.4.2010, this Court modified condition No.3to the limited extent of allowing the 1st petitioner also to conduct Uroos, Ratheeb and Khatham as Shaik in the mosque. The 2nd respondent/1st petitioner was allowed to perform such function in alternate weeks, allotting first week to the 2nd respondent. Aggrieved by that arrangement, the 2nd respondent entered appearance W.P.(C).21305/11 4 and pressed for an order permitting him to conduct the Uroos on 28.4.2010. He also produced certain documents to say that after the death of S.V.Pookoya Thangal, the 1st defendant in the suit, he is performing the functions of the Shaik, it is a special rite, which could be performed only by persons specially trained, that he was ordained as Shaik in special ceremonies couducted in Kundapuram etc. After hearing counsel for the 2nd respondent and taking into account the fact that, conduct of such ceremonies may give rise to law and order problems, this court restrained both parties from performing Uroos in the mosque on 28.4.2010. However, they were allowed to perform the functions of Muthawalli as per the earlier arrangement dated 20.4.2010.” 7. Finally the Tribunal disposed of the O.P., with the following directions:- I have already made a temporary arrangement for performing duties of the Muthawalli. But as far as performance of ceremonies of Uroos, Ratheeb and Khatham are concerned, as it is certain that it is likely to affect the peace and tranquility of the area, such rites should not be conducted in the Mosque till such time the Board enters its finding. Points are found accordingly. W.P.(C).21305/11 5 In the result, the petition is disposed of, directing the parties to address the Wakf Board on the question of jurisdiction regarding the nomination of Shaik. The Board shall dispose of the matter within the stipulated time limit, untrammelled by the observations made this Court. Till the matter is disposed of, the interim arrangement will continue and special ceremonies like Uroos, Ratheeb and Khatham shall not be conducted in the premises of the Mosque.” (Emphasis supplied) 8. This order therefore shows that the Tribunal relegated the parties to the Wakf Board and directed that the interim arrangement ordered by the Tribunal will continue in the meanwhile. Thus, as a result of the Tribunal's intervention evidenced by Ext.P10 judgment, both the petitioner and the fourth respondent stood appointed as Joint Muthawallies and the Special privilege conferred on the petitioner as per clause 3 of Ext.P7 order stood recalled. 9. Ext.P10 was the subject matter of C.R.P.299/2010 which was disposed of by the Division Bench of this Court as per Ext.P11order. A reading of this order shows that this Court confirmed the order passed by the Tribunal and left the parties to get the matter agitated by the Wakf W.P.(C).21305/11 6 Board. Paragraph 17 and 18 of Ext.P11 read as under:- The Wakf Tribunal while disposing the matter has not interfered with the interim arrangement made by the Board. A slight modification made with respect to conduct of certain religious functions warrants no interference since such modification is made considering maintenance of peace in the functions of the mosque. Therefore we are of the considered opinion that challenge against the impugned judgment based on the question of jurisdiction of the Wakf Board need not be entertained in this revision petition. The temporary arrangements made by the Board is only for the proper administration of the mosque pending final disposal of the matter. We feel that any unsettlement of the interim arrangement may also lead to vulnerable situations and disturbance of peace in the mosque, which will eventually lead to law and order situation. Therefore we are not persuaded to bring any modification to the impugned judgment of the Tribunal. It is left open for the parties to agitate the issue before the Wakf Board, as observed above. Considering the interest of justice we feel that an expeditious disposal of the matter by the Wakf Board is necessary.” 10. Although there were subsequent litigations between the parties, W.P.(C).21305/11 7 resulting in Exts.P12 and P13 judgments of this Court, those orders may not be of relevance for resolving the dispute now raised in this writ petition. While the matter stood thus, in view of Ramzan and the prayers that are to be conducted, it appears that the petitioner filed Ext.P14 application before the Executive Magistrate where he made the following request. “Hence I as defacto Shaik & Muthawally of the Mosque may be allowed to perform prayers and special namaz during Ramzan. If that is not possible, it is earnestly requested that a peaceful and conducive atmosphere in and around the mosque may be ensure and nobody should be allowed to do anything during the Ramzan.” 11. It is seen from Ext.P15 order, that the Executive Magistrate, summoned both sides, considered their respective views and passed the following order. “On a perusal of order dated 5.4.2010 of Lakshadweep State Wakf Board and order dated 25.5.2010 of the Wakf Tribunal and suggestion and request and petitions and also considering law and order situation and incidents happened during the last Ramzan W.P.(C).21305/11 8 period, I direct the both S/Shri.S.V.Cheriyakoya Thangal and S.V.P.Pookoya to perform Ramzan night Namas (Thraveeh) as times noted below during Ramzan period or till out coming of the decisions in W.C.1/2010 of the Lakshadweep State Wakf Board which ever is earlier. 1. Shri.S.V.Cheriyakoya Thangal from 8.30 pm to 9.30 pm 2. Shri.S.V.P.Pookoya from 9.40 pm to 10.40 pm The above timing will be changed subject to depend upon the inconvenience to a group on a valid reasons. 12. It is now brought to the notice of this Court by the learned counsel for the fourth respondent that subsequent to passing of Ext.P15, on the request made by both groups, the Executive Magistrate passed order dated 2.8.2011. A fair copy of this order was made available, which reads as under:- “In continuation to the order dated 1.8.2011, the timing fixed therein is modified as noted as suggested by both Group with effect from 2.8.2011. 1. Shri.S.V.Cheriyakoya Thangal from 8.30 pm to 9.45 pm 2. Shri.S.V.P.Pookoya from 9.55 pm to 11.10 pm W.P.(C).21305/11 9 13. As already seen, the case of the petitioner is that in passing Ext.P15 order, the Executive Magistrate has unsettled the position as settled by Exts.P7, which was allegedly confirmed in Exts. P10 and P11. 14. From the facts as noted above, it is clear that by Ext.P10 order of the Wakf Tribunal, Ext.P7 order of the Wakf Board was modified and that the order of the Tribunal was confirmed by this Court in Ext.P11. Thus, both sides have equal rights. It is this equal right which is now recognized by the Executive Magistrate as per Ext.P15. This order also shows that the Executive Magistrate has made the arrangement to ensure that law and order and peace is maintained in the area in question. I do not think that on the materials available, there is any reason to think that the Executive Magistrate travelled beyond his jurisdiction or committed any illegality in the matter, warranting interference by this Court. The writ petition is dismissed. ANTONY DOMINIC, Judge mrcs