MOLAYAKKARUKATH PUTHIYAPURAYIL MAMMOO Vs. CHULLIYODAN PADUVAN VELAPPIL ABDU

JUDGEMENT

(1.) The original petition is filed for a direction to respondents 5 and 6 to afford protection to the lives of the petitioners and the properties of Ainul Huda Madrassa of Padappengad Muslim Jumath from the threat of respondents 1 to 4 and also to quash Ext. P4 order of the District Collector, Cannanore passed under S.27 of the Kerala Police Act. The petitioners are the President, Secretary and Treasurer of the Jumath Committee. The said committee was unanimously elected according to the petitioner on 21-3-1990 and they took charge on 1-4-1990. The committee is constituted under the bye-laws of the society. It runs a Madrassa and is also in charge of administration of the Society. I am concerned with this petition only the Madrassa and its administration. According to the petitioner for the past several years the Madrassa was following the syllabus prescribed by Samastha Kerala Muslim Vidyabyasa Board and the Madrassa was teaching its students syllabus prescribed by the Board. While so on 14-5-1990 respondents 1 to 4 and their men trespassed into the Madrassa and intimidated the teachers appointed by the petitioners and obstructed them from teaching. At that time, on the basis of the petitioners' complaint to the police, the police called respondents 1 to 4 and their men and warned them not to enter in the building or trespass into the property. On a second occasion on 28-5-1990 respondents 1 to 4 tried to trespass the property but there was no trouble caused and no further report has been made to the police. But stating that respondents 1 to 4 and their men are indulging in illegal activities and committing trespass the petitioners approached the Munsiff's Court, Thaliparamba by way of O.S. 131/1990 to restrain respondents 1 to 4 and their men from entering into the property and trespassing to create trouble to the petitioners in running the Madrassa. There was an interim application, LA 960/1990 for temporary injunction against respondents from trespassing into the property. That was ordered on 2-6-1990 by the Munsiffs Court. This matter was reported to the police as well. In violation of the injunction order respondents 1 to 4 trespassed into the Madrassa and assaulted the members of the teaching staff. That was on 4-6-1990. The petitioner immediately reported the matter to the 5th respondent and sought police protection. Ext. P3 is the request for police protection. The police also registered a crime against respondents 1 to 4. Thus it will be seen that whenever the matter was brought to the notice to the police officers action was taken by the police officers on the specific incident reported to them. But that was not sufficient. By Ext. P3 the petitioner wanted to extend police protection to see that the injunction order of the Munsiffs Court is not violated. Petitioner also requested to prevent unlawful obstruction caused by respondents 1 to 4 and their men. Since it is found that there is a fight between two factions popularly known as E.K. Aboobacker Musaliar Group and AP. Aboobacker Musaliar Group, the police wanted proper safeguard in the matter. A police picket is posted near the Madrassa to prevent breach of peace. That was subsequent to 4-6-1990 when there was an open clash using bricks, sticks etc. by the two factions. The situation became worse subsequent to the above incident as stated in Para.10 of the counter affidavit filed on behalf of respondent No.5. It is stated that any attempt by any group to open the Madrassa will lead to violent clashes and grave disturbance of the peace at Padeppengad. If the Madrassa is left in the hands of any group there is likelihood of grave disturbance of the public peace. Hence the District Magistrate will have to be approached. It is thereafter the District Magistrate passed an order under S.27 of the Kerala Police Act. In the order of the District Magistrate dated 8-6-1990 it is stated that he is satisfied from the report of the Superintendent of Police, Cannanore dated 7-6-1990 that a grave disturbance of peace is likely to take place at Pedappangad in Kooveri Village between persons belonging to two groups of Muslim Community falling within the Taliparamba Police Station limit and further in order to prevent disturbance and breach of peace, it is necessary to exclude all persons from and to prohibit entry to all persons to the said Madrassa. He passed an order under S.27 excluding all persons from the building and prohibiting entry to the said building for a period of 14 days from 8-6-1990. This was extended subsequently and still in operation and it is submitted by the Government Pleader that it is extended upto 16-8-1990. It is in the above circumstances the writ petition is filed for police protection.

(2.) The petitioners have already approached the Munsiffs Court by way of O.S.No.131/1990 and interim injunction has been obtained and if the petitioners want protection to implement the said order it is for them to approach that court for appropriate relief under O.39 R.2A and S.151 of the Code of Civil Procedure. That court has adequate power to give protection and enforce its order with police aid if needed. The Division Bench of this Court held that the suit is an alternative remedy and another Division Bench of this Court also held in Kunhahammad Haji v. State of Kerala, 1960 KLT 930 that if the petitioner already availed an alternative remedy then the extraordinary jurisdiction under Art.226 of the Constitution will not be available to him. Therefore having availed an alternative remedy the petitioner cannot avail remedy under Art.226 of the Constitution. Hence I decline jurisdiction to give direction to respondents 5 and 6 to enforce the interim order.

(3.) The next question is whether Ext. P4 is vitiated by any illegality or irregularity. Under S.27 of the Act in order to prevent any grave disturbance of peace the District Magistrate can temporarily direct to close an establishment and also include any person on such terms and conditions as the District Magistrate deems fit. The petitioner referred to the decision reported in N. Chellappan v. The District Collector and Additional Magistrate (Independent) Kozhikode, ILR 1970 (1) Kerala 146 to show that the order is vitiated for improper exercise of power. But in that case there was no reason to apprehend any breach of peace. There was also no situation involving the likelihood of rioting or grave disturbance of peace existing at the dam-site warranting action being taken under S.27 of the Police Act. This Court said that: