Abdulla Haji v. Kerala State Wakf Board and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 27TH DAY OF SEPTEMBER 2019 / 5TH ASWINA, 1941** **CRP(WAKF).No.48 OF 2019** **AGAINST THE JUDGMENT IN OA NO.18/2019 IN OP 251/2017 OF WAKF TRIBUNAL, KOZHIKODE DATED 26-03-2019** ## **REVISION PETITIONER/PETITIONER/1ST RESPONDENT:** **ABDULLA HAJI, AGED 63 YEARS S/O MOOSA HAJI, PRESIDENT, KALLIDUKKU MAHALLU MUSLIM-JAMA-ATH, CHERUPARAMBA PO, KANNUR DISTRICT - 670 693.** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.P.C.ANIL KUMAR SMT.P.SREESHA SRI.MANU.M.THOMAS** ## **RESPONDENTS/RESPONDENTS/PETITIONERS & 2ND RESPONDENT:** |**1**|**KERALA STATE WAQF BOARD,**| |---|---| ||**REP BY CHIEF EXECUTIVE OFFICER,**| ||**REGIONAL OFFICE, EROTH CENTRE,**| ||**BANK ROAD, KOZHIKODE - 673 001.**| |**2**|**P MOHAMOOD, AGED 37 YEARS,**| ||**S/O. MOOSA HAJI,**| ||**PARAMBACHERIYIL HOUSE,**| ||**POYILOOR PO..,**| ||**KANNUR DISTRICT - 670 693**| |**3**|**K.P. MAHAMOOD,**| ||**AGED 30 YEARS,**| ||**S/O ABDULL KADER,**| ||**PARAMBACHERIYIL HOUSE,**| ||**CHERUPARAMBA PO,**| ||**KANNUR DISTRICT - 670 693**| CRP(WAKF).No.48 OF 2019 2 **4 R. HARIS, AGED 30 YEARS, S/O ABDULLA, KAVULLATHIL H, CHERUPARAMBA PO, KANNUR DISTRICT - 670 693** **5 YOUSAF C H, AGED 66 YEARS, S/O PAKE HAJI, GENERAL SECRETARY, KALLIDUKKU MAHALLU MUSLIM JAMA-ATH, CHAMMOTIL H, CHERUPARAMBA PO, KANNUR DISTRICT - 670 693** **6 ADV. ANSAR ADVOCATE COMMISSIONER/RETURNING OFFICER, THALLASSERY BAR ASSOCIATION, COURT COMPLEX, THALLASSERY - 670 101.** ## ***ADDL R7 IMPLEADED** - **7 ADV.MUHAMMED ANEEF.P ADVOCATE COMMISSIONER,ADVOCATE, TALIPARAMBU,KANNUR,670142,** **IS IMPLEADED AS ADDL.R7 AS PER ORDER DATED 23/09/2019 IN IA 5/2019.** **R2-4 BY ADV. SRI.R.RAMADAS R5 BY ADV. SRI.MUHAMMED ASIF ABDULLA R5 BY ADV. DR.PAULY MATHEW MURICKEN R7 BY ADV. SRI.M.MUHAMMED SHAFI R1 BY T.P.SAJID, SC FOR WAKF BOARD** **THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 27.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRP(WAKF).No.48 OF 2019 3 ## _**ORDER**_ ## **Harilal, J** The revision petitioner herein is the petitioner in O.A.No.18/2019 of the Wakf Tribunal, Kozhikode and the first respondent in O.P.No.251/2017 of the Kerala State Wakf Board, Divisional Office, Kozhikode. Respondents 2 to 4 herein are the petitioners in O.P.No.251/2017 before the Kerala State Wakf Board. The aforesaid original petition was filed with a prayer to appoint an advocate commissioner-returning officer to prepare voters list and for conducting election to the committee of Kallidukku Mahallu Muslim Jama-ath. The revision petitioner herein and others resisted the said original petition and after considering the CRP(WAKF).No.48 OF 2019 4 rival pleas and documents produced by both the parties, the Wakf Board allowed the application and appointed an advocate commissioner/returning officer to conduct the election to the Mahallu Committee. The revision petitioner herein challenged the said order by filing O.A.No.18/2019 before the Wakf Tribunal, Kozhikode and after considering the counter statement filed by the respondents herein the Wakf Tribunal also concurred with the findings of the Wakf Board and dismissed the aforesaid O.A. by Annexure-A2 order. This revision petition is filed, under Section 83(9) of the Wakf Act, 1995 read with Section 115 of the Code of Civil Procedure, challenging the legality, correctness and propriety of the determination made by the CRP(WAKF).No.48 OF 2019 5 Wakf Tribunal in the impugned order. 2. Heard Sri.K.Gopalakrishna Kurup, the learned Senior counsel appearing for the revision petitioner, the learned counsel appearing for respondents 2 to 4, the learned counsel appearing for the 5[th] respondent, Sri.Muhammed Shafi, the learned counsel appearing for the additional 7[th] respondent and Sri.T.P.Sajid, the standing counsel for the 1[st] respondent. 3. At the outset, we find that the scope and extent - of consideration in this revision petition are confined to the legality, correctness and propriety of the determination, whereby the Wakf Tribunal confirmed the order passed by the Wakf Board and dismissed the O.A. 4. Going by the averments in the O.A., we find that CRP(WAKF).No.48 OF 2019 6 the said O.A. was filed mainly on the ground that there is no practice of conducting election properly in a transparent manner, according to the byelaw, when the term of office expires. The term of office of the managing committee is two years and the present members of the managing committee were elected on 27.06.2016, on a common consensus of the members of the general body. In view of the antecedents, there is no possibility to conduct election and, unless a returning officer/advocate commissioner is appointed by the Wakf Board and a direction is issued, no election will be conducted in accordance with the byelaw, when the term expires on 27.06.2016. 5. The revision petitioner herein resisted the said CRP(WAKF).No.48 OF 2019 7 contention and stated that no direction need be issued, as the term expires only on 27.06.2016. So the original petition itself is a premature one. The term of office of the managing committee is of two years and in the previous year the office bearers were elected unanimously on a common consensus of the members of the general body; so there was no purpose for conducting an election. In the previous years general body was conducted to elect office bearers of the Mahal after proper service of notice to all the members of the general body and the office bearers were elected unanimously. Nobody has filed any petition before the Wakf Board challenging the earlier elections, so far. It is further contended that when the period of the committee is not CRP(WAKF).No.48 OF 2019 8 over, no application can be filed seeking a direction to appoint an advocate commissioner/returning officer. The present committee has the power to conduct election in accordance with the provisions under the byelaws and the appointment of an advocate commissioner/returning officer by the Wakf Board is not required for the same. The Wakf board has no power to appoint an advocate commissioner-returning officer or to interfere in the administration of a registered committee, under Section 32 of the Wakf Act. 6. The learned senior counsel appearing for the petitioner contends that the original petition itself was not maintainable before the Wakf board. Firstly, it is contended that the Mahal CRP(WAKF).No.48 OF 2019 9 committee is a registered society and the same was not impleaded as a party in any of the proceedings, which culminated into the impugned order. Secondly, it is contended that in exercise of the powers under Section 32 of the Wakf Act, the Wakf Board has no power to issue directions to conduct election or to appoint a returning officer to conduct elections. Thirdly, it is contended that the present returning officer is a lawyer, who issued notice to respondents 2 to 4 and filed a caveat for the 4[th] respondent in O.A.No.18/2019. The Wakf Board ought not have appointed such a person, who has issued notice for the parties to the _lis_ as returning officer. Therefore, proper and fair election cannot be expected from such a returning officer. Thus, the CRP(WAKF).No.48 OF 2019 10 proceedings are vitiated by lack of fairness and propriety. 7. Per contra the learned counsel for the respondents advanced arguments to justify the findings whereby the Wakf Tribunal passed Annexure-A2 order. According to the learned counsel appearing for respondents 2 to 4 the election proceedings has already commenced in accordance with Annexure-A5 on 06.09.2019 and the election is scheduled to be conducted on 29.09.2019. Where the election proceedings once commenced no court shall interfere with such proceedings. Therefore, there is no scope for any interference, in view of the subsequent events happened after passing the impugned AnnexureA2 order. In support of the said argument, the CRP(WAKF).No.48 OF 2019 11 learned counsel for the respondents has cited _**Abdul Latheef C.K. And Ors. v. K.M.Haneefa and**_ _**Ors.**_ **[2015 (3) KLT 299]** . 8. Let us examine the contentions raised by the learned counsel appearing for the revision petitioner. The learned counsel for the revision petitioner highlighted the point that the original petition is not maintainable as the Mahallu Committee, which was registered under the Societies Registration Act was not made a party in O.P.No.251/2017. According to the learned counsel for the revision petitioner, the office bearers alone are made parties in the proceedings and absence of the Mahallue Committee is fatal. 9. Going by the contentions raised by the revision CRP(WAKF).No.48 OF 2019 12 petitioner before the Wakf Board as well as the Wakf Tribunal, we find that no such contention was raised either before the Wakf Board or the Wakf Tribunal. Even if it is a legal point, the point requires consideration in revision only if factual foundations are made in the pleadings. We have examined the byelaw, which was produced as Annexure-A1 before the Wakf Tribunal. Ext.A1 does not show that the committee was registered under the Societies Registration Act, as contended by the learned counsel for the revision petitioner. That apart, no document has been produced before us, so as to arrive at a conclusion that the Mahallu Committee was registered under the Societies Registration Act or any other law for the time being in force. CRP(WAKF).No.48 OF 2019 13 Therefore, the said contention does not require consideration, in the absence of any pleadings or materials or any findings by the Wakf Board or Tribunal in this respect. 10. As regards the power of the Wakf Board to appoint an advocate commissioner/returning officer; we find that Section 32 of the Wakf Act confers wide powers to the Wakf Board, in respect of the supervision and control of the Wakf. When the Wakf Board examined the previous conduct of elections, in exercise of that power, it came to the notice of the Wakf Board that in the previous years, no election to the Mahal committee was conducted in accordance with the byelaw. The Wakf Board has ample powers to interfere with the administration of the CRP(WAKF).No.48 OF 2019 14 Mahal committee, in such a situation, and to issue direction to conduct election and to appoint an advocate commissioner/returning officer for the same. 11. It is further contended that the original petition itself was a premature one, as the term of office was not expired at the time of filing of the original petition. Going by the pleadings, we find that the petitioner and respondents 2 to 4 contended before the Wakf Board as well as the Wakf Tribunal that there was no practice of conducting election in the Mahal in the previous years and after the commencement of byelaw in the year 2005, no election was conducted through ballet paper and office bearers were elected only on a common consensus of the CRP(WAKF).No.48 OF 2019 15 general body. We are of the opinion that the said contention itself is sufficient to justify the filing of an original petition, before the expiry of the term of office. If there was no such practice of conducting election, in accordance with the democratic procedure, the respondent can be justified in approaching the Wakf Board, in advance, anticipating the absence of a free and fair election, as occurred earlier. However, we further find that the impugned order was passed on 10.07.2018 after the expiry of the term of the present committee on 27.06.2018. In short, at the time of passing of the impugned order by the Wakf Board, the term of office stood expired. Therefore, we do not find any reason to interfere with the findings, whereby the Tribunal rejected CRP(WAKF).No.48 OF 2019 16 ## the said contention. 12. Lastly and mainly the learned Senior counsel contended that the proceedings of the election is vitiated by lack of fairness and propriety by the appointment of a lawyer, who issued notice to respondents 2 to 4 and the petitioner, for and on behalf of the 4[th] respondent in O.A.No.18/2019. Going by Annexure-A3 order passed by the Wakf Board, we find that, earlier, Adv. Ansar Thalassery was appointed as advocate commissioner/returning officer. Annexure-A4 further shows that, subsequently, when Adv.Ansar returned the appointment order, the present advocate commissioner/returning officer Adv.P.Muhammed Aneef was on appointed 09.07.2019 and Annexure-A5 shows that election CRP(WAKF).No.48 OF 2019 17 proceedings commenced on 06.09.2019. The returning officer/additional 7[th] respondent filed a counter statement, stating that notification was issued on 06.09.2019 and he visited the Mahal on 25.07.2019. The learned counsel appearing for the 5[th] respondent, the Secretary of the Mahal submits that the Secretary has handed over the list of members to the advocate commissioner/returning officer before AnnexureA5 notification. This revision petition was filed on 06.05.2019. The present advocate commissionerreturning officer was appointed, when this revision has been pending before this Court. The appointment of a new advocate commissioner/returning officer is brought to the notice of this Court in this C.R.P by the affidavit CRP(WAKF).No.48 OF 2019 18 dated 23.09.2019. Going by Annexure-A3, we further find that the present advocate commissioner-returning officer was appointed, after hearing the petitioner herein and other respondents. So, it could be presumed that no objection was raised against the appointment of the present advocate commissioner/returning officer. We are of the opinion that if the petitioner had no confidence in the present advocate commissioner/returning officer, certainly, he could have approached this Court or the Tribunal, challenging the appointment of the present advocate commissioner/returning officer, immediately after the appointment. When the election is scheduled to be conducted on 29.09.2019, the petitioner brought up the CRP, CRP(WAKF).No.48 OF 2019 19 before this Court, on 23.09.2019 only. The inordinate delay is fatal to the said contention, particularly when the election is scheduled to be conducted on 29.09.2019. 13. That apart, the allegation is that the advocate commissioner/returning officer, a lawyer issued notice to the revision petitioner, for and on behalf of the 4[th] respondent, informing the institution of a caveat in anticipation of O.A No.18/2019. It is not disputed that he did not appear for the 4[th] respondent in the O.A. and in the O.A. the 4[th] respondent was represented by another counsel by names Adv.K.P.Mayan and V.P.Narayanan. Even though notice was issued and a caveat filed, he did not appear for the 4[th] respondent. We are of the opinion that merely for CRP(WAKF).No.48 OF 2019 20 the reason that a lawyer issued notice to a party to intimate the institution of a caveat, in anticipation of a suit or any proceedings in a court, it cannot be said that the said lawyer is keeping allegiance to that client for ever, particularly, when he did not appear for that client, when the case was contested before the court. Further, we are of the opinion that the profession of a lawyer is an independent profession and lawyer takes brief on each and every case independently. Merely on the reason that a lawyer appeared for a client, it cannot be said that he is keeping allegiance to that client always in his professional life. 14. In the above view, at the fag end of the election proceedings, particularly when the CRP(WAKF).No.48 OF 2019 21 revision petitioner himself conceded to that appointment, for a long period after his appointment, we do not find any reason to interfere with the appointment of an advocate commissioner/returning officer at this stage. Hence this revision petition would stand dismissed accordingly. **Sd/- K.HARILAL, JUDGE** **sd/- N.NAGARESH, JUDGE** AMV/28/09/2019 CRP(WAKF).No.48 OF 2019 22 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A PHOTOCOPY OF THE INTERIM ORDER DATED 10.07.2018 IN OP 251/2017 OF THE KERALA WAQF BOARD, DIVISIONAL OFFICE, KOZHIKODE** **ANNEXURE A2 A CARBON COPY OF THE JUDGMENT DATED 26.03.2019 IN OA 18/2019 OF THE HON'BLE WAQF TRIBUNAL, KOZHIKODE** **RESPONDENTS EXHIBITS : NIL** **TRUE COPY P.A.TO JUDGE**