IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 4698 of 1999(H)
1. PATTAKKAL SAYED AHAMED KOYA THANGAL
... Petitioner
Vs
1. ADMINISTRATOR UNION TERRITORY OF LAKSHAD
... Respondent
For Petitioner :SRI.M.M.ABDUL AZIZ (SR.)
For Respondent :SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :20/10/2009
O R D E R
S. SIRI JAGAN, J
...............................................
O.P. No.4698 of 1999
.................................................
Dated this the 20th day of October, 2009
J U D G M E N T
In this original petition, the petitioner, who aspires to be
the Kazi of the Andrott Island, challenges Ext.P4 order of the 1st
respondent – Administrator of the Union Territory of
Lakshadweep, by which he appointed the 3rd respondent as the
Kazi of Andrott Island.
2. Ext.P4 order was passed pursuant to a selection process
initiated by the 1st respondent by Ext.P1 notification dated
23.6.1997, inviting applications for appointment as Kazi of the
Juma Masjid, on the death of the existing Kazi, one Pattakal
Pookoya Thangal. The petitioner challenged the notice before
this court, in O.P. No. 11211 of 1997, contending that, the
deceased Kazi and the petitioner being members of the Pattakal
family, and the position of Kazi being hereditary to be appointed
only from among the members of the family, the petitioner is
entitled to function in place of the deceased Kazi and therefore
there is no reason to issue Ext.P1 notice. Alternately, the
O.P. No.4698 of 1999 -2-
petitioner also contended that a Kazi under the Kazis’ Act, 1880
can be appointed only when “any considerable number of
Muhammadans resident in any local area desire that one or more
Kazis should be appointed for such local area” and such selection
can only be “after consulting the principal Muhammadans of
such local area”, which procedures have not been complied with
before issuing Ext.P1 notification. A learned single Judge of this
court, by Ext.P2 judgment repelled the contention of the
petitioner that the office of Kazi is hereditary in nature. It was
further held therein that “even if the petitioner’s contention that
he succeeds to the deceased Kazi, the position being hereditary
in nature, is accepted, that will not prevent the Administration
choosing a Kazi in terms of the Kazis Act” and that “appointment
of Kazi made under the Act shall not be deemed to prevent any
person discharging any of the functions of the Kazi as per
Section 4 of the Act.” The contention that considerable number
of Muhammadans had not expressed their desire that a Kazi
should be appointed was also repelled, holding that when the
administration has issued Ext.P1, naturally it has to be presumed
that there was desire expressed by considerable number of
Muhammadans. Regarding the contention that there was no
O.P. No.4698 of 1999 -3-
consultation with principal Muhammadan residents of the local
area, the learned Judge held that the question of such
consultation arises only after the interview committee selects a
suitable candidate. Accordingly the original petition was
dismissed upholding the validity of Ext.P1. The petitioner
challenged Ext.P2 judgment in W.A. No. 1558 of 1997. By Ext.P3
judgment, the writ appeal was dismissed affirming Ext.P2
judgment. But it was directed therein that the petitioner’s
application for appointment as Kazi also be considered, if he
applied within three weeks. Pursuant thereto the 1st respondent
continued the process of selection which culminated in Ext.R1
selection by the 4th respondent of the 3rd respondent and the
petitioner in that order of merit and Ext.P4 order appointing the
3rd respondent as Kazi. It is under the above circumstances the
petitioner has filed this original petition challenging Ext.P4
order.
3. Although the counsel for the petitioner initially tried to
raise a contention that in view of the decision of another Division
Bench of this court in Pattakal Cheriya Koya & others V
Aliyathammuda Beethathebiyyappura and others [2008(1)
KHC 683 (DB)], the office of Kazi is hereditary and a member of
O.P. No.4698 of 1999 -4-
Pattakal family is entitled to be the Kazi by succession, the
counsel for the petitioner himself did not press that contention,
since in the petitioner’s own case a Division Bench held to the
contrary, which decision has become final and the petitioner has
not taken that contention in this original petition. The petitioner
was prompted to abandon that contention also because this court
expressed the view that if the conflict between the two decisions
has tobe resolved the matter has to be referred to a Division
Bench and then a Full Bench. The petitioner now challenges
Ext.P4 only on the ground that before selecting the 3rd
respondent, the principal Muhammadans of the area was not
consulted.
4. Counter affidavits have been filed on behalf of the first
respondent and by the 3rd respondent disputing the contentions
of the petitioner. The 1st respondent states that the Board
constituted under the Samastha Kerala Jem-Iyyathul Ulama
(SKJIU for short) conducted the written test and interview in
which the 3rd respondent and the petitioner participated and by
Ext.R1 dated 17.11.98 the SKJIU informed the 1st respondent
that the 3rd respondent was placed first and the petitioner
second. It is also stated that the 1st respondent received Ext.R2
O.P. No.4698 of 1999 -5-
mass memorandum dated 12.4.1998 from the principal
Muhammadan residents and others of Andrott Island requesting
to appoint the most competent from the selected candidates
excluding the petitioner and accordingly by Ext.P4, the 3rd
respondent, being the only other candidate apart from the
petitioner, was appointed. It is further stated that wide publicity
was given about the appointment of the 3rd respondent
throughout Andrott Island and the Executive Magistrate of
Andrott had by Ext.R3 message dated 20.1.99 intimated the
District Magistrate of Kawaratti that the Idul-Fitre prayers in the
Juma Mosque of Andrott was conducted under the leadership of
the 3rd respondent Kazi peacefully and about 3500 persons
assembled for the prayer. According to the first respondent
there are two groups of Muslims in the island called Jama -Athe
Himanayathe Sheriyathul Islamiya (the JHSI) and the
Lakshadweep Sheriyathil Pravarthaka Sambarka Samithi (the
LSPSS). When the former Kazi, Pattakal Pookoya Thangal was
out of the island in May 1986, the petitioner who is the nephew
of the said Pookoya Thangal acted as the Kazi and under his
leadership the JHSI passed a resolution excommunicating the
followers of LSPSS, proclaiming them as un-islamic and denying
O.P. No.4698 of 1999 -6-
them right to enter the mosque and other religious and public
institutions. This resulted in a major law and order problem in
the island and a litigation, leading to the decision Attakoya
Thangal v. Union Territory of Lakshadweep 1987 (1) KLT 762,
laying down certain principles for the guidance of the authorities
who have to tackle the law and order situation. Thereafter the
petitioner and his group JHSI were conducting prayers in a
separate mosque protesting against the then Kazi, Pattakal
Pookoya Thangal permitting the other group, LSPSS, to
participate in the Juma prayers at the Juma mosque.
5. In an affidavit accompanying C.M.P. No.30386/2002 for
receiving Ext.R3(a) and for taking note of subsequent events, the
3rd respondent would contend that the petitioner is not even
eligible to be considered for the post of Kazi, since, at the time of
application he was an accused in C.C. No. 7 of 1991 of the
Judicial Magistrate of the I class, Andrott, in which the petitioner
and others were charged with offences under Section 143, 144,
145, 147, 148, 188, 332, 353 and 506(2) read with Sections 149
of the Indian Penal Code, in which by Ext.R3(a) judgment dated
8.5.2001, the petitioner was convicted under Sections 143 and
188 of the I.P.C., but was released under Section 4 of the
O.P. No.4698 of 1999 -7-
Probation of Offenders Act. According to him, the position of
Kazi under Mohammedan law is that of a Judge or Judicial officer
who should have an untainted character and hence the petitioner
who has been convicted in a criminal case is not eligible to be
appointed as a Kazi.
6. The petitioner has filed a reply affidavit to the counter
affidavit of the 1st respondent, questioning Ext.R2 and relying on
Ext.P7 memorandum dated 12.2.1998, allegedly issued by
prominent members of the Island requesting the administration
to recognise the petitioner as the Kazi of the Andrott Island. But
no reply affidavit is filed disputing the averments in the affidavit
of the 3rd respondent referred to above.
7. As I have already stated, although the petitioner tried to
raise the contentions regarding hereditary Kaziship, and absence
of desire of considerable numbers of Muhammadans, in view of
Exts.P2 and P3 judgments, the petitioner ultimately confined
himself to only one contention viz. want of consultation with the
principal Muhammadans of the local area before issuing Ext.P4.
Even otherwise in Ext.P2 judgment, which was affirmed by the
Division Bench in Ext.P3 Judgment and has become final, it has
been held that the petitioner cannot challenge the appointment
O.P. No.4698 of 1999 -8-
of Kazi on the first two grounds. But in those judgments it has
been held that the question of consultation with principal
Muhammadans, as stipulated in Section 2 of the Kazis Act, arises
only after selection. The petitioner now contends that there was
no consultation with the principal Muhammadans of the area.
The 1st respondent contends that in view of Ext.R2, submitted by
the principal Muhammadans of the local area, no further
consultation was called for and in any event, since out of the two
persons selected, the petitioner had rendered himself unfit to
hold the post of Kazi by his own conduct, further consultation
was not called for. The 3rd respondent contends that the
petitioner, at the time of selection, being an accused in a
criminal case in which later he was convicted, is not eligible for
appointment. He also submits that this court may not exercise its
discretionary jurisdiction under Article 226 of the Constitution of
India in favour of such a person.
8. I have considered the contentions of both sides in detail.
9. At the outset I note that the petitioner has not chosen to
dispute Ext.R3(a) judgment in C.C. No. 7 of 1991 of the Judicial
First Class Magistrate’s Court, Andrott, in which he was
convicted of offences under Sections 143 and 188 of the Indian
O.P. No.4698 of 1999 -9-
Penal Code. Those Sections read thus:
“143. Punishment – Whoever is a member of an
unlawful assembly, shall be punished with imprisonment
of either description for a term which may extend to six
months, or with fine, or with both.
188 – Disobedience to order duly promulgated by
public servant.- Whoever, knowing that, by an order
promulgated by a public servant lawfully empowered to
promulgate such order, he is directed to abstain from a
certain act, or to take certain order with certain property
in his possession or under his management, disobeys
such direction,shall, if such disobedience causes or tends to cause
obstruction, annoyance or injury, or risk of obstruction,
annoyance or injury, to any person lawfully employed, be
punished with simple imprisonment for a term which may
extend to one month or with fine which may extend to
two hundred rupees, or with both;
and if such disobedience causes or trends to cause
danger to human life, health or safety, or causes or tends
to cause a riot or affray, shall be punished with
imprisonment of either description for a term which may
extend to six months, or with fine which may extend to
one thousand rupees, or with both.”
10. I note that the criminal case itself arose in relation to
the affairs of the mosque to be presided over by the Kazi
selected pursuant to Ext.P1 itself. The petitioner is the kind of
person who, in order to defy the then Kazi, whom he aspires to
succeed, was prepared to lead an unlawful assembly even
defying lawful orders of a public servant. His unlawful act
resulted in a riot and loss of lives of innocents. In Ext.R3(a)
judgment in C.C. No. 7/91, wherein the petitioner was the first
O.P. No.4698 of 1999 -10-
accused it is held thus:
“From the conclusions on point No.1 (paragraph 92)
and point No.3 (paragraph 100) it is found that the 1st
accused formed into an unlawful assembly alongwith
others on the afternoon of 23.4.1990 and knowingly
disobeyed an order lawfully promulgated under Section
144 Cr.P.C. resulting in loss of life and property and riot
and affray and thereby committed offences punishable
under section 143 and 188 IPC. The first accused is
found guilty under section 143 and 188 IPC and is
convicted accordingly.”
11. Kazi is a spiritual leader of the community. He guides
the people of the community in spiritual and temporal matters so
as to promote peace and harmony, not only in the community,
but also in the society of which the community is a part. A Kazi
must be a person acceptable to all in the community. He cannot
be a person who is a spokesman of one faction of the community,
that too a belligerent faction. Factionalism breeds enmity
between two sections of the community. Kazi has to look after
the welfare of all sections of the community. The petitioner is a
person, who, when he had the chance to act temporarily as Kazi
in the absence of the Kazi, who was none other than his own
uncle, excommunicated a whole section of the community and
later led an uprising against the Kazi on the ground that the Kazi
allowed that section to pray in the mosque, where peace and
tranquility should prevail. He led an unlawful assembly and
O.P. No.4698 of 1999 -11-
defied orders of the District Magistrate, unmindful of the safety
of the people, which ultimately led to loss of lives, and his being
convicted by a criminal court for offences against the society
punishable under the Indian Penal Code. I have absolutely no
doubt in my mind that such a person is not even fit to be
considered for the office of Kazi. In this connection I find it apt
to quote here two paragraphs of Ext.R3(a) judgment, regarding
the teachings of Hazrath Ubaidulla, the spiritual leader of the
Muslims in Lakshadweep who converted the earlier inhabitants
of the island to Islam. The same reads thus:
“119. The matter will not be complete unless what
Hazrath Ubaidulla has to say in this matter is also
considered. He is revered by the community not only in
this island but through out the world else. It was he who
brought the religion in to this island and it was his
Makhbara in respect of which the dispute centres round.
It was he who founded the Pattakal family and the wakf
of the Juma Masjid. His words are available in the form
of his book ‘Futhuhathul Jazayeer’. This court can refer
to it as an historical piece of evidence and resort to the
relevant book as per section 57 of the Indian Evidence
Act, 1872.
120. It shows that he was a person capable of
bringing quakes and tigers in to the island both unknown
here. He left Amini to Andrott in the dead of night when
a mob planned to finish him off, not in fear, but to
purchase peace. While he visited Kavaratti he advised
his followers that the lord is with the tolarant and told
them about the greatness of tolarance, when his
followers found the assault from the inhabitantsO.P. No.4698 of 1999 -12-
unbearable. Towards the ends of his ‘Futhuhathul
Jazayeer’ he viewed that he wont make any one greater
than any one (
……) vide page 28 of Hazrath
Ubaidullayum Lakshadweepum”by Dr. N. Muthukoya.”
It appears that the petitioner was unable to imbibe and
assimilate the noble teachings of this reverred ancestor and
leader, and acted contrary to his teachings to bring discord in
the community, which is not what is expected of a person who
aspires to become a Kazi, who is to guide the people of the
community.
12. Further the selection of Kazi itself was conducted by
the Samastha Kerala Jem-Iyyathil Ulama, a body consisting of
principal Muhammadans of the local area. They selected the 3rd
respondent giving him the first place among the two candidates,
in a selection between the 3rd respondent and the petitioner.
Further, as is evidenced by Ext.R2, 355 Muhammadans of the
area had objected to the appointment of the petitioner as Kazi.
Ext.P7 only supports the candidature of the petitioner and does
not dispute the eligibility of the 3rd respondent in any manner.
The 1st respondent submits that for the last ten years, the 3rd
respondent is peacefully and competently administering the
office of Kazi, without complaints from anybody. In view of the
O.P. No.4698 of 1999 -13-
tumultous past history of the mosque as evidenced by Ext.R3(a)
judgment, it is not desirable to disturb the present tranquility of
the mosque and the island by undoing the appointment made by
the first respondent, who presently appears to be acceptable to
all.
In the above circumstances, I am not inclined to exercise
my discretionary jurisdiction under Article 226 of the
Constitution of India to interfere with Ext.P4 appointment of the
3rd respondent as Kazi by the first respondent, at the instance of
the petitioner. Accordingly the original petition is dismissed.
S. SIRI JAGAN, JUDGE
rhs