Hidayathul Muslimeen Sangham v. Kerala State Waqf Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** ## **CRP(WAKF).No. 692 of 2018** **OA 3/2018 of WAKF TRIBUNAL, KOZHIKODE DATED 10-08-2018** ## **REVISION PETITIONERS/APPLICANTS/RESPONDENTS 1 & 2** **1 HIDAYATHUL MUSLIMEEN SANGHAM REPRESENTED BY PRESIDENT, P.P. ALVI MOULAVI, S/O. KUTTIRAYIN HAJI, PARAMMAL PILATHOTTATHIL HOUSE, KAKKOVU, VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673 633** **2 P.P. ALAVI MOULAVI AGED 1 YEARS** **S/O. KUTTIRAYIN HAJI, PRESIDENT, HIDAYATHUL MUSLIMEEN SANGHAM, PARAMMAL PILATHOTTAHIL HOUSE, KAKKOVU, VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673 633** **BY ADVS. SRI. K. JAJU BABU (SR.) SRI. BRIJESH MOHAN SMT. M.U. VIJAYALAKSHMI** ## **RESPONDENTS/RESPONDENTS/PETITIONERS & 3RD RESPONDENT:** - **1 THE KERALA STATE WAKF BOARD VIP ROAD, KALOOR, KOCHI, PIN-682 017, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER** - **2 BASHEER** **S/O. KUTTIRAYIN HAJI, PRESIDENT, HIDAYATHUL MUSLIMEEN SANGHAM, PARAMMAL PILATHOTTATHIL HOUSE, KAKKOVU, VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN 673633** **CRP(WAKF).692/2018** 2 - **3 P.C. ABDUL GAFOOR S/O. MUHAMMED, PALLARUTU CHAKKAMBALAM, KOTTUPADAM, POST VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673633** - **4 MUHAMMED ASHARAF P.K** - **S/O. ALAVI, PARAMMAL KOLLERI HOUSE, KAKKOVU, POST VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673 633** - **5 ABDUL NAZER P.K S/O. SAIDALAVI, KOTTUPADAM, KAKKOVU, POST VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673 633** - **6 JAFER S/O. ABDRURAHIMAN, PARAMMAL, PULAPPRATHODI HOUSE, KAKKOVU, POST VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673 633** - **7 K.V. ABDURAHIMAN S/O. POCKKER ALI, SECRETARY, HIDAYATHUL MUSLIMEEN SANGAM, KANDANKULAVAN, VADAKKECHALIL HOUSE, KOKKOVU, POST VAZHAYOOR EAST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673633.** - **8 P.K. SHIHABUDHEEN OMANOOR ADVOCATE, BAR ASSOCIATION, MANJERI, MALAPPURAM DISTRICT, PIN-676 121** **BY ADV. SRI. R. RAMADAS SC SRI.T.P.SAJID** **THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 11.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRP(WAKF).692/2018** 3 ## **ORDER** Ravikumar, J. 1. This Revision Petition is directed against the order dated 10.8.2018 passed by the Waqf Tribunal, Kozhikode in O.A.3/2018. As per the same, the Tribunal confirmed the order dated 29.1.2018 passed by the Kerala State Waqf Board in O.P.No.293/2015. The petitioners herein were the applicants before the Tribunal and were respondents 1 and 2 before the Waqf Board. Respondents 2 to 6 herein were the petitioners before the Waqf Board. They approached the Waqf Board by filing O.P.293/2015 seeking for appointment of an Advocate Commissioner for conducting election to the office bearers of the Hidayathul Muslimeen Sangham, which is a society registered under the Societies Registration Act and mutawalli of Masjidul Hidaya Jama-ath Mosque in Kakkov desom. The said Mosque is an ancient Waqf. As noticed hereinbefore, accepting the contentions of respondents 2 to 6 herein, the Waqf Board passed an order appointing **CRP(WAKF).692/2018** 4 Adv.Shihabudheen P.K., Koonummal House, Oomanoor (PO), Malappuram-673645, as Returning Officer to conduct election to the first petitioner Sangham. Evidently, the Board directed the Advocate Commissioner to conduct election in accordance with the terms of the bye-law of the Sangham. It is feeling aggrieved by the said order passed by the Waqf Board that the revision petitioners filed O.A.3/2018 before the Tribunal. Tribunal declined to accept the contentions and ultimately dismissed the O.A. 2. The grievance of the petitioners is that instead of directing to conduct the election in tune with the provisions of the bye-laws of the Sangham, the Tribunal ought to have directed to conduct the election in tune with Ext.B2 agreement. Before proceeding further it is relevant to note that there is absolutely no dispute with respect to the position that Masjidul Hidaya Juma-ath is a waqf and also that Sangham got an approved bye-law dated 12.2.1982. So also, it is an admitted fact that the Sangham **CRP(WAKF).692/2018** 5 is registered under the Societies Registration Act (for short 'the Act') and there are more than 2500 members in the Sangham. The waqf properties consists of 13 acres of land wherein one Mosque and two Madrasas, namely, Darul Hikam Madrassa and Darul Hikam Sunni Madrassa situate. It is their case that difference of opinion between the members of Sunni group led to the formation of two groups and one Madrassa is managed by one faction and the other is by the other faction. Owing to the friction between the said factions, law and order problem were created and subsequently a settlement was arrived at before the Deputy Superintendent of Police, Malappuram. As per the said agreement dated 20.11.2004, reached in the presence of the representatives of both factions properties were identified separately and described as A and B schedule properties excluding the Mosque and surrounding properties. A schedule is in possession of one group and B schedule is in possession of the other group. We are of the considered view that we need not go into such **CRP(WAKF).692/2018** 6 aspects as the management of the madrasas was not at all a subject matter in O.P.293/2015. As noticed hereinbefore, it was filed seeking for appointment of an Advocate Commissioner for conducting election to the office bearers of the Sangham and the main question posed for consideration and decided by the Tribunal as per the impugned order was whether election to the Hidayathul Muslimeen Sangham is to be conducted as per its bye-law or as per Ext.B2 agreement. 3. There is absolutely no dispute with respect to the position that the Sangham is registered under the Act and for the Sangham there is an approved bye-law. The approved bye-law, admittedly contains provision for conducting the election. When once it is found that an approved byelaw is available for the Sangham which is registered under the Act and its approved byelaw contains provisions for conducting election the question is whether election could be regulated by an agreement without any amendment to the relevant provision in the approved bye- **CRP(WAKF).692/2018** 7 law. With respect to the enforcibility of Ext.P2 agreement, there is difference of opinion. According to the petitioners, the election has to be conducted in terms of Ext.B2 agreement dated 20.11.2004. However, Respondents 2 to 6 would contend that the said agreement was only a temporary arrangement to overcome the law and order issue which arose due to certain disputes and at any rate, it cannot be acted upon in place of the approved bye-laws for conducting election. Even if it is ratified by the General Body with respect to a Sangham which is registered under the Act and when its bye-law got approval of the Registrar unless the bye-law is amended, election could be conducted only in tune with the provisions of the Act, it is further contended. 4. In the contextual situation it is appropriate to refer to a Division Bench decision of this Court in Hassainar Musliar v. Kodakkadu Nasrathul Islam Mahallu Committee (2017 (4) ILR (Kerala) 15) . In that case ignoring the provisions in the **CRP(WAKF).692/2018** 8 bye-laW mandating for election to the working committee in every three year election was being conducted on yearly basis. This court held that :- “when Ext.P2 byelaw of the 1[st] plaintiff Mahallu Committee makes specific provision regarding the term of the elected Working Committee as three year, the mere fact that during the period from 2010 to 2016 office bearers of the Working Committee were elected every year, as discernible from the list of office bearers forwarded to the District Registrar, would not entitle the plaintiffs to contend that election to the Working Committee in the month of January every year has become the custom and practice in the 1[st] plaintiff Mahallu Committee”. 5. In this case also despite the existence of the provisions in the byelaws for some decade election was not conducted in tune with the provisions thereunder and according to the petitioners, it was being conducted in tune with the agreement. In the light of the decision in Hassainar Musliar 's case, merely because for some period election was conducted without adhering to the provisions in the bye-laws, that by itself cannot be a reason to the petitioners to contend that election to the Managing Committee should be conducted only without **CRP(WAKF).692/2018** 9 giving due regard to the provisions under the approved bye-laws and it has to be conducted in tune with the agreement. After considering various contentions, the Waqf Board came to the conclusion that the mediation which culminated in the agreement was made only for the purpose of overcoming the law and order situation occurred at a particular point of time and therefore it could only be treated as a temporary arrangement. The same view was virtually endorsed by the Tribunal. Such findings, which is in tune with the decision Hassainar Musliar 's case (supra) cannot be interfered with in exercise of the revisional jurisdiction. In such circumstances taking into account the fact that there is absolute absence of dispute regarding the fact that the Sangham was registered under the Act and it is having approved byelaw dated 12.2.1982 we do not find any reason at all to interfere with the order passed by the Tribunal and to upturn the orders passed by the Waqf Board which was confirmed by the Tribunal. We make it clear that we have not **CRP(WAKF).692/2018** 10 made any observation touching the manner in which the Madrasas are to function. On perusing the impugned order passed by the Tribunal it is clear that appropriate directions have already been issued by the Tribunal to ensure a fair and free election in a democratic manner. In such circumstances adhering to such directions, election has to be conducted by the Advocate Commissioner who is appointed as Returning Officer. Hence, with the said direction the revision petition is disposed of. Sd/- C.T.RAVIKUMAR JUDGE Sd/- A.M.BABU JUDGE Mrcs/12.9. /True copy/ P.S.To Judge