|
Abkari Shops Disposal Rules 2002 (Kerala), Rr. 2(l) & 7( 2) - Thycavu where prayers are offered by Muslims comes within the definition of Mosque - Prohibition in R. 7( 2) applies.
Summary: Question raised is whether a Thycavu where prayer is offered by Muslims, comes within the definition of Mosque and a toddy shop can be run within prohibited distance from Thycavu; Court held that Thycavu cannot be regarded as a structure on the road side, pavement or in a compound of a private building and is a pucca mosque and the object is to prohibit location of toddy shop within prohibited distance of a place where Muslim offer prayers whether it is called Wakf-alal-Aulad, Mosque, Madrassa or Niskara palli and if muslims offer prayers in any of the four types of religious places, it would come within the definition of mosque.
Held: Thycavu cannot be regarded as a structure on the road side, pavement or in a compound of a private building, but it is a pucca mosque which is for everybody to see. Regarding the distinction sought to be drawn by the petitioner on the basis of Ext. R3(f) wherein the 4th respondent is shown as a 'Niskara palli', I am of opinion that description of the 4th respondent as a 'Niskara palli' for the purpose of registration by the Wakf Board cannot be imported into the definition in R. 2(l) of the Rules. The d efinition has to be construed taking into account
@page-KLT543#
the object of R.7(2). The object is to prohibit location of toddy shop within the prohibited distance of a place where Muslims offer prayers whether it is called Wakf-alal-Aulad, Mosque, Madrassa or Niskara palli. If Muslims offer prayers in any of the four types of religious places, it would come within the definition of mosque is my view of the matter. In so far as it is proved beyond doubt that Muslims offer prayers in the particular place, I have no hesitation to hold that the same is a mosque as defined under R.2(l). (para. 8)
K.P. Satheesan (Dr.), K.K. Gopinathan Nair,
M.R. Jayaprasad & P. Mohandas (Ernakulam) For Petitioner
D. Somasundaram, K.A. Manzoor Ali,
M.M. Saidu Mohamed & M.R. Sabu (Government Pleader) For Respondents
JUDGMENT
The petitioner is a licensee of Toddy Shop No. 15 of Narakkal Excise Range. He has been a licensee from 1998-1999 onwards. The toddy shop is functioning in Building No. II/230 of Edavnakkad Panchayat. According to the petitioner, the original owner of the building was one Sankaran, who is no more. He had 4 sons and a daughter. The 4 sons together without the junction of the daughter of Sankaran sold the property to one K.K. Parameswaran. The daughter challenged the sale deed in O.S.No. 124/2001 of the Sub Court, Kochi. The Sub Court set aside the sale in so far as the share of the daughter is concerned. Execution was taken out in which the said K.K.Par ameswaran was made a party. The said Parameswaran sought exclusion of the area comprised of the toddy shop for the purpose of allotting share to the daughter, which was allowed by the execution court. It was challenged in C.R.P. No. 63/2008, which was dismissed confirming the allotment of shares, by Ext. P20 judgment of this Court. Accordingly, Parameswaran became the owner of the shares of the sons of Sankaran. With the consent of the said Parameswaran, the petitioner is stated to have applied for licence for the toddy shop in the building in question situated in the property allotted to him. Accordingly, the petitioner has been conducting the toddy shop.
2. The 3rd respondent herein raised an objection to the effect that the said toddy shop is functioning within the prohibited distance from a mosque, namely, Ismail Sait Thycavu. The dispute came up before this Court in W.P(C) No. 21953/2007. By Ext. P5 judgment, this Court directed the 2nd respondent to consider the complaint filed by the 3rd respondent and others and to take appropriate decision in accordance with law. Pursuant thereto, the 2nd respondent issued Ext. P6 recommending to the 1st respondent to cancel the licence of the petitioner on the ground that it is within the prohibited distance from a mosque. That was challenged by the petitioner by filing W.P(C) No.28200/2007, in which this Court directed the 1st respondent to consider the matter. Accordingly, after hearing, the 1st respondent passed Ext. P7 order holding that since the toddy shop is located within the prohibited distance from Ismail Sait Thycavu, which is a mosque as defined in R. 2(l) of the Abkari Shops Disposal Rules, 2002, the licence is liable to be cancelled. Accordingly, the licence issued to the petitioner has been cancelled. The petitioner is challenging Ext. P7 order in this Writ Petition.
@page-KLT544#
3. The contention of the petitioner is that the Thycavu is not a mosque as defined in the Kerala Abkari Shops Disposal Rules, 2002. The petitioner would submit that it is only a Thycavu, which is excluded from the purview of the definition of a mosque by virtue of the proviso to R. 2(l) of the Rules and therefore Ext. P7 order is unsustainable. In support of his contention, the petitioner submits that the name of the establishment itself is Ismail Sait Thycavu. He points out that in ordinary parlance, Thycavu in Travancore area does not mean a mosque, but only an “ Hm¯p]Ån “. He also relies on Ext. R3(e) application submitted by the Thycavu before the Kerala Wakf Board for registration, in which it is specifically stated that it is only a Thycavu. He further points out that in Ext. R3(f), which is the extract from the register of the wakf of the Kerala Wakf Board, the additional 5th respondent is shown as a “Niskara Palli”. According to him, the Wakf Board itself distinguishes among Mosque, Madrassa and Niskara Palli as is clear from column no. 4 of Ext. R3(f), which requires the class of wakf to be nam ed as “Walf-alal-Aulad/Mosque/Madrassa/ Niskara palli.” When the Wakf Board itself classifies this only as a Niskara palli as distinct from a mosque, according to the petitioner, this is not clearly a mosque coming within the definition in R. 2(l) of the Rules. He also points out that in Ext. R3(f) also, the additional 4th respondent is only shown as a Thycavu. The petitioner therefore submits that the finding that the additional 4th respondent is a mosque is clearly unsustainable and consequently Ext. P7 order is also unsustainable.
4. The 3rd respondent and additional respondents 4 and 5 stoutly oppose the claim of the petitioner. According to them, as is evident from Ext. P8, the additional 4th respondent is a place where Muslims offer prayer five times daily. They further point out that in Ext. R3(e), it is specifically stated that the same is a mosque. According to them, the fact that in Ext. R3(f), the additional 4th respondent is described as a 'Niskara palli' does not take the same away from the definition of mosque in the Kerala Abkari Shops Disposal Rules. They would submit that the classification as Niskara palli in the Wakf Board's registers is purely for internal purpose for distinguishing various kinds of mosques, which is generally described in the Rules as 'mosque' and therefore there is no merit in the contention of the petitioner that since in Ext. R3(f) the additional 4th respondent is shown as Niskara palli, the same is not a mosque. They also point out that in Ext. R3(h), which is the extract from the Panchayat Property Tax Assessment Register also, the additional 4th respondent is shown as a mosque (apÉnw]Ån). The additional 5th respondent also contends that from 1961-1962 onwards, the Muslims have been offering prayers in this place and after renovation of the same in 1997, juma prayers are also offered there.
5. I have considered the rival contentions in detail.
6. At the outset, I may note that it is not disputed before me that the distance between the additional 4th respondent-establishment and the toddy shop is within the prohibited distance as per the Abkari Shops Disposal Rules. It is also not disputed before me that if the additional 4th respondent answers the definition of 'mosque' in the Rules, the continued
@page-KLT545#
existence of the toddy shop in the particular site is objectionable. Therefore, the only question I am called upon to decide is as to whether the additional 4th respondent is a 'mosque' as defined in R. 2(l) of the Kerala Abkari Shops Disposal Rules.
7. R. 2(l) of the Rules reads thus:
“(l) “Mosque” means a public place where prayer is offered by Muslims:
Provided that any structure on the road side, pavement or in a compound of a private building with or without a deity shall not be considered as a “Mosque”;”
It is too late in the day for the petitioner to contend that Muslims are not offering prayers in the additional 4th respondent's place. In fact, Ext. R3(d) photogr aphs, which are not disputed by the petitioner, show that it is in a pucca building in the shape of a mosque. The Wakf Board, which is a statutory authority under the Wakf Act has, by Ext. P8, certified that that is a place where Muslims offer prayers. Therefore, the only other question that has to be considered is whether in view of the proviso to R. 2(l), the 4th respondent should be excluded as a mosque for the purpose of the Rules.
8. On a perusal of Ext. R4(d) photographs, I am satisfied that the 4th respondent cannot be regarded as a structure on the road side, pavement or in a compound of a private building, but it is a pucca mosque which is for everybody to see. Regarding the distinction sought to be drawn by the petitioner on the basis of Ext. R3(f) wherein the 4th respondent is shown as a 'Niskara palli', I am of opinion that description of the 4th respondent as a 'Niskara palli' for the purpose of registration by the Wakf Board cannot be imported into the definition in R. 2(l) of the Rules. The definition has to be construed taking into account the object of R. 7(2). The object is to prohibit location of toddy shop within the prohibited distance of a place where Muslims offer prayers whether it is called Wakf-alal-Aulad, Mosque, Madrassa or Niskara palli. If Muslims offer prayers in any of the four types of religious places, it would come within the definition of mosque is my view of the matter. In so far as it is proved beyond doubt that Muslims offer prayers i n the particular place, I have no hesitation to hold that the same is a mosque as defined under R. 2(l). That being so, I do not find any merit in the challenge against Ext. P7 order. Accordingly, the Writ Petition is dismissed. |
