CRP(WAKF) Nos.11 & 12 of 2019

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE C.S. SUDHA`** ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 ``` ``` CRP(WAKF) NO. 11 OF 2019 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 06.10.2018 IN O.S.(WAKF) 28/2013 OF WAKF TRIBUNAL, KOLLAM ``` ## **`PETITIONERS:`** - `1 KOLLAM POLAYATHODU PAREEDIYA MASJID MUSLIM JAMA-ATH POLAYATHODU, KOLLAM-10, REPRESENTED BY FASSAL RAHMAN, THOPPIL HOUSE, VIKAS NAGAR-153, POLAYATHODU, KOLLAM-21.` - `2 FASSAL RAHMAN, S/O.ABDUL AZEEZ, THOPPIL HOUSE, VIKAS NAGAR-153, POLAYATHODU, KOLLAM-21.` - `3 H.ABDUL RASHEED, S/O.HAMEED KANNU, DILKUSH, THEKKEVILA, KOLLAM, PIN- 690524.` - `4 ADV.SHAJI P.AZEEZ, S/O.AZEEZ, ADHITHYA NAGAR-77, POOKUTTATHU, MADANNADA, KOLLAM- 10.` - `5 A.M.RAFI, S/O.ABDUL MAHABOOD, KURUMBELI HOUSE, POLAYATHODU, KOLLAM-21.` - `6 SHAMNAD ALI, S/O.ALIYARKUNJU, PUTHEN NANGLAVU, MUNDAKKAL EAST, KOLLAM-1.` ``` BY ADV T.R.RAJAN ``` ## **`RESPONDENTS:`** - `1 MUHAMMED RAFEEK, AGED 62 YEARS S/O.MYTHEENKUNJU, ACHUMADATHIL, K.T.NAGAR-77, B.MUNDAKKAL VILLAGE, KOLLAM, PIN- 691010 (MUTHAVALLI, KOLLAM POLAYATHODU, PAREEDIYA MASJID MUSLIM JAMA-ATH).` ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -2- ``` - `2 MUHAMMED HASHIM, AGED 80 YEARS S/O.MYTHEENKUNJU, ACHU MADAM, GARDENS PEOPLES NAGAR-9, FIRE STATION ROAD, KOLLAM, PIN- 691001.` - `3 SANEER, NATIONAL NAGAR-85, VAYALILTHOPPE, POLAYATHODU, PIN- 691021.` - `4 M.THAJUDEEN, S/O.MYTHEENKUNJU, SINI MANZIL, VADAKKEVILA, KOLLAM, PIN- 691010.` - `5 M.HASHIM, S/O.ABDUL RASHEED, PERATHIL PARAMBU, ERAVIPURAM, KOLLAM, PIN- 691011.` - `6 NIYAS AHAMMED, S/O.ABDUL AZEEZ, THOPPIL HOUSE, PANTHRANDU MURI, THATTAMALA, KOLLAM, PIN- 691020.` - `7 BASHEER K.A., S/O.KOYA, RIYAS MANZIL, ADITHYA, NAGAR-85, VADAKKEVILA, KOLLAM, PIN- 691010.` - `8 NAJEEB.S, S/O.SHAMSUDEEN, AJEEB MANZIL, NEW ISWARYA NAGAR-82, POLAYATHODU, KOLLAM, PIN- 691021.` - `9 A.M.SHERIEF, S/O.ABDUL MAJEED, NATIONAL NAGAR-139, POLAYATHODU, KOLLAM, PIN- 691021.` - `10 M.K.SAJEEB, S/O.MUHAMMED KUNJU, RAZI MANZIL, PATTATHANAM, KOLLAM PIN- 691021.` - `11 K.ANZARI, S/O.KAMAL, NATIONAL NAGAR, POLAYATHODU, KOLLAM, PIN- 691021.` ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -3- ``` - `12 MUHAMMED SHAFI, S/O.MUHAMMED RASHEED, VARU PURAYIDOM, THEKKEVILA, KOLLAM, PIN- 691021.` ``` 13SHAHUL HAMEED, (BABU), S/O.MAJEED, KURUMBELIL HOUSE, POLAYATHODU, KOLLAM, PIN- 691021. *14M.M.SHERIEF,(DELETED) S/O.MUHAMMED ISMAIL, NATIONAL NAGAR-200, POLAYATHODU, KOLLAM, PIN- 691021. (DELETED FROM PARTY ARRAY AS PER ORDER DATED 17.1.2022 IN IA 2/2021) ``` - `15 THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, V.I.P ROAD, ERNAKULAM, PIN- 682017.` ``` BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.JAMSHEED HAFIZ, SC, WAQF BOARD SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN ``` ``` THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 12.10.2023, ALONG WITH CRP(WAKF) NO. 12 OF 2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -4- ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA ``` ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, ``` ``` 1945 ``` ## **`CRP(WAKF) NO. 12 OF 2019`** ``` AGAINST THE ORDER/JUDGMENT OSWAK 28/2013 OF WAKF ``` ``` TRIBUNAL, KOLLAM ``` ## **`REVISION PETITIONERS/1ST TO 6TH COUNTERCLAIM PLAINTIFFS:`** - `1 KOLLAM POLAYATHODU PAREEDIYA MASJID MUSLIM JAMA-ATH, POLAYATHODU, KOLLAM-10 REPRESENTED BY FASSAL RAHMAN, THOPPIL HOUSE, VIKAS NAGAR-153, POLAYATHODU, KOLLAM-21` - `2 FASSAL RAHAMAN S/O.ABDUL AZEEZ, THOPPIL HOUSE, VIKAS NAGAR153, POLAYATHODU, KOLLAM-21.` - `3 H.ABDUL RASHEED, S/O.HAMEED KANNU, DILKUZH, THEKKEVILA, KOLLAM PIN-690524.` - `4 ADV.SHAJI.P.AZEEZ, S/O.AZEEZ, ADHITHYA NAGAR-77, POOKUTTATHU, MADANNADA, KOLLAM-10.` - `5 A.M.RAFI, S/O.ABDUL MAHABOOB, KURUMBELI HOUSE, POLAYATHODU, KOLLAM-21.` - `6 SHAMNAD ALI, S/O.ALIYARKUNJU, PUTHEN NANGLAVU, MUNDAKKAL EAST, KOLLAM-1` ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -5- ``` ``` BY ADV T.R.RAJAN ``` ## **`RESPONDENTS/COUNTER CLAIM DEFENDANTS & 7TH COUNTERCLAIM`** ## **`PLAINTIFF ADN 8TH TO NINETEENTH DEFENDANTS:`** - `1 MUHAMMED RAFEEK, AGED 62 YEARS S/O.MYTHEENKUNJU, ACHUMADATHIL, K.T.NAGAR 77, B MUNDAKKAL VILLAGE, KOLLAM, PIN 691010(MUTHAVALLI, KOLLAM POLAYATHODU, PAREEDIYA MASJID MUSLIM JAMA-ATH)` - `2 MUHAMMED HASHIMM AGED 80 YEARS` - `S/O.MYTHEENKUNJU, ACHU MADAM, GARDENS PEOPLES NAGAR-9, FIRE STATION ROAD, KOLLAM PIN-691001.` - `3 SANEER NATIONAL NAGAR-85, VAYALILTHOPPE, POLAYATHODU, PIN-691021.` - `4 M.THAJUDEEN, S/O.MYTHEENKUNJU, SINI MANZIL, VADAKKEVILA, KOLLAM, PIN-691010` - `5 M.HASHIM, S/O.ABDUL RASHEED, PERATHIL PARAMBU, ERAVIPURAM, KOLLAM, PIN-691011.` - `6 NIYAS AHAMMED, S/O.ABDUL AZEEZ, THOPPIL HOUSE, PANTHRANADU MURI, THATTAMALA, KOLLAM, PIN-691020.` - `7 BASHEER.K.A. S/O.KOYA, RIYAS MANZIL, ADITHYA, NAGAR-85, VADAKKEVILA, KOLLAM PIN-691010.` - `8 NAJEEB.S. S/O.SHAMSUDEEN, AJEEB MANZIL,` ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -6- ``` ``` NEW ISWARYA NAGAR-82, POLAYATHODU, KOLLAM, PIN-691021. ``` - `9 A.M.SHERIEF, S/O.ABDUL MAJEED, NATIONAL NAGAR-1398, POLYATHODU, KOLLAM, PIN-691021.` - `10 M.K.SAJEEB, S/O.MUHAMMED KUNJU, RAZI MANZIL, PATTATHANAM, KOLLAM.` - `11 K.ANSARI, S/O KAMAL/NATIONAL NAGAR,POLAYATHODU, KOLLAM.PIN 691 021` - `12 MUHAMMED SHAFI S/O MUHAMMED RASHEED,VARU` ``` PURAYIDOM,THEKKEVILA,KOLLAM.PIN 691 021 ``` - `13 SHAHUL HAMMED,(BABU) S/O MAJEED ,KURUMBELIL HOUSE,POLATHODU,KOLLAM PIN 691021.` - `*14 M.M SHERIEF, (*DELETED) S/O MUHAMMED ISMAIL, NATIONAL NAGAR200,PALAYATHODU,KOLLAM,PIN 691 021.` - `(*DELETED FROM PARTY ARRAY AS PER ORDER DATED 17.01.2022 IN IA 2/2021)` - `15 THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD,` - `V.I.P.ROAD, ERNAKULAM.PIN 691 017` ``` BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.JAMSHEED HAFIZ, SC, WAQF BOARD SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN ``` ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` **==> picture [23 x 9] intentionally omitted <==** ``` THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 12.10.2023, ALONG WITH CRP(WAKF) NO. 11 OF 2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -8- ``` ## **`JUDGMENT`** ## **`[CRP(WAKF) Nos.11/2019, 12/2019]`** ## **`AMIT RAWAL, J.`** 1. CRP(Wakf) Nos.11 and 12 of 2019 have been preferred against the judgment dated 06.10.2018 of the Wakf Tribunal, Kollam in O.S. (Wakf) No.28 of 2013 allowing the suit of the respondents and rejecting the counter claim of the petitioners. The suit essentially was filed by plaintiffs who are respondents in the present Revision Petitions firmly on the ground that both are the members of the Kollam Polayathodu Pareediya Masjid Muslim Jama-ath and the first plaintiff was appointed as a Muthavalli by the second plaintiff. The bye-laws of 2010 were in force and sought prohibitory injunction restraining the petitioners who are arrayed as respondent Nos.2 to 18 from taking any policy decisions of the Jama-ath, also not convene a Special General Meeting as per the amended bye laws, prohibitory injunction from any other acts necessary for day to day ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -9- ``` administration by allowing the suit. In the aforementioned suit petitioners had also set up a counter claim that the bye-laws of 2014 had the force as they were registered. Since the parties were at variance learned Tribunal framed the following issues: “i. Whether plaintiff is entitled to a decree of permanent prohibitory injunction restraining defendants 2 to 18 from taking any policy decisions relating 1[st] defendant. ii. Whether plaintiffs are entitled to a decree of declaration declaring that defendants 2 to 18 are not entitled to convene a special general body meeting of 1[st] defendant without informing the muthavalli and his nominees for amendment of the bye-law. iii. Whether plaintiffs are entitled to a decree of permanent prohibitory injunction restraining the defendants 2 to 18 from doing any thing other than what is necessary for the day to day administration of 1st defendant Jama-ath.? iv. Whether the defendants are entitled to a decree of declaration that election of defendants to the committee of 1[st] defendant Jama-ath in the general body on 29.5.2011 is legal and valid? ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` ``` -10- ``` v. Whether defendants are entitled to a decree of declarationdeclaring that 1[st] plaintiff is not the muthavalli of 1[st] defendant Jama-ath? vi. Whether defendants are entitled to a decree of declaration that the bye-laws registered by the defendants as deed No. 125/2014 before SRO Kollam is the bye-law of 1[st] defendant Jama-ath and that the bye-law of the year 2010 is not legal and valid ? vii. Whether the defendants are entitled to a decree of prohibitory injunction restraining the plaintiffs from doing anything obstructing defendants from administering the Jama-ath and from doing anything in accordance with the 2010 bye-law.? viii. Reliefs and costs.” 2. On the basis of the aforementioned issues parties led respective evidence and brought on record various documents. Suit was decreed by issuing prohibitory injunction restraining petitioners who were arrayed as defendant Nos.2 to 18 from taking any policy decisions or any other thing on the basis of the amended bye-laws. The counter claim set up by the petitioners ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` **==> picture [29 x 9] intentionally omitted <==** who were contesting defendant Nos.2 to 18 was also rejected. However after passing of the judgment dated 06.10.2018 Wakf Board appointed an administrator during the pendency of the CRPs i.e., almost in the year 2022. 3. We asked the counsel for the parties as to whether the term of the Managing Committee is over or not, both the counsel answered in affirmative. Now new elections have to be held. Question involved is whether the elections can be held as per the amended bye laws of 2010 or 2014. 4. Before we could dispose of the CRPs in view of the supervening facts counsel representing the petitioners had brought to a notice an order dated 31.10.2017 in O.A.No.3 of 2014 whereby the decision of the Chief Executive Officer granting accord to the bye laws of 2010 was set aside and it has been informed that no fresh orders have been passed, nor the order of the ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` **==> picture [29 x 9] intentionally omitted <==** Tribunal was challenged before this Court. 5. In O.S.No.8 of 2014 Chief Executive Officer of the Wakf Board was directed to convene the General Body meeting of the Jama-ath with sufficient notices to all the members and dispose of the matters pending before the authority regarding the bye laws of the first jama-ath within a period of one month. 6. Learned counsel for the petitioner in CRP(Wakf) Nos.11 and 12 of 2019 cited a judgment pointed out that a muthavally cannot order contrary to the Wakf deed by appointing another muthavalli and prayed that question with regard to the locus standi of plaintiff No.1 bringing himself to be a muthavalli on the basis of an order passed by the duly appointed muthavalli be left open despite the decree as, the Tribunal failed to notice the contents of the deed of muthavalli. 7. On the other hand learned counsel appearing ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` **==> picture [29 x 9] intentionally omitted <==** on behalf of the contesting respondents - plaintiffs submits that the delegation of the muthavalli by the second plaintiff in favour of the first plaintiff was affirmed in O.S.No.4 of 2012 Ext.A5 and there is no challenge to Ext.A5. In this view of the matter the question with regard to the delegation of muthavalli by the second plaintiff duly appointed muthavalli in favour of first plaintiff need not be pondered. Even otherwise the second plaintiff duly appointed muthavalli had already died and the question of devolvement on the basis of the succession would not also arise. 8. We have been further informed that said directions could not be adhered on account of the appointment of the administrator. We are of the considered view that it would be farcical exercise for us to ponder upon the merits and demerits of the orders of the Tribunal in view of the subsequent events. We leave it open for the Board to take a call on the acceptability or non applicability of 2010 or 2014 bye-laws before taking ``` CRP(WAKF) Nos.11 & 12 OF 2019 ``` **==> picture [29 x 9] intentionally omitted <==** a call on holding the elections of the Jama-ath and decide it on merits in accordance with law. The Board shall also be at liberty to take a call on this question before declaring the election. Parties will be at liberty to produce all the documents taking their claims qua muthavalli. With the aforementioned observations the CRPs are disposed off. Sd/- ## **`AMIT RAWAL JUDGE`** ## **`Sd/-`** ``` C.S. SUDHA JUDGE ``` ``` vv ```