Jasu Bukhari and others v. Nettoor Mahallu Muslim Jama-ath and others (OP(Waqf) No.16 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941** **OP (WAKF).No.16 of 2019** ## **PETITIONERS:** **1 JASU BUKHARI,AGED 42 YEARS S/O.LATE BUKHARI, MANGALASSERY PARAMBU, NETTOOR P.O., ERNAKULAM DISTRICT- 682040. 2 SANU NAVAS,AGED 44 YEARS S/O.LATE HUSSAIN, VADAKKEVEETTIL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT- 682040.** **3 P.M.SAFARULLA,AGED 63 YEARS S/O.LATE V.P.MUHAMMED KOYA, PUTHIRI HOUSE, (PURAKKELIPARAMBU), NETTOOR P.O., ERNAKULAM DISTRICT- 682040.** **BY ADVS. SHRI.ESM.KABEER SMT.C.SHEEBA SMT.K.M.AMINABEEVI** ## **RESPONDENTS:** **1 NETTOOR MAHALLU MUSLIM JAMA-ATH, REPRESENTED BY ITS PRESIDENT SAYED IMBICHI KOYA THANGAL, AGED 57 YEARS, S/O.SAYED CHERIYAPOOKKOYA THANGAL, NADUVILE VEETTIL, NETTOOR P.O., ERNAKULAM DISTRICT- 682040.** - **2 P.M.ABDUL KARIM,AGED 59 YEARS S/O.MUHAMMED, PERINGATTUPARAMBIL, NETTOOR P.O., ERNAKULAM DISTRICT- 682040.(SECRETARY) NETTOOR MAHALLU MUSILM JAMA-ATH.** 2 O.P.(Waqf) No.16 of 2019 **3 KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P. ROAD, KALOOR P.O., COCHIN- 17.** **R1 & R2 BY ADVS. SRI.MOHAMED YOUSEFF T.M. (SENIOR ADVOCATE) SMT.ASHIFA YOUSEFF SMT.M.KABANI DINESH SRI.C.M.EBRAHIM SRI.SHOUKATH HUSAIN** **R3 BY ADV.SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD** **THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(Waqf) No.16 of 2019 ## **A.HARIPRASAD & SHIRCY V., JJ. -------------------------------------O.P.(Waqf) No.16 of 2019 -------------------------------------Dated this the 11[th] day of July, 2019** ## **JUDGMENT** ## **Hariprasad, J.** Heard the learned counsel for the petitioner and the learned senior counsel appearing for respondents 1 and 2. Learned Standing Counsel for Waqf Board is also heard. 2. Reliefs sought for in the petition read thus: _“(i) To call for the records realizing the Exhibit P1 to_ _P3 and issue a writ of mandamus or any other writ or direction directing the 3[rd] respondent to consider and dispose of Exhibit P3 representation on 13/4/2019 in the next Board meeting itself._ _(ii) To issue a writ of mandamus or any other writ or order directing the respondents 1 and 2 not to conduct the election on 19-04-2019 pursuant to Exhibit P2 notice till the 3[rd] respondent consider Exhibit P3 representation._ _(iii) To issue any order or direction directing the 3[rd]_ 4 O.P.(Waqf) No.16 of 2019 _respondent to conduct the election to the 1[st] respondent Jama-ath by appointing a Returning Officer and through secret ballot after following the procedures._ _(iv) Any other reliefs also may be granted in order to meet out justice considering the circumstances of the case.”_ 3. Petitioners are members and beneficiaries of Nettoor Muslim Jama-ath, a waqf registered with the Kerala State Waqf Board. It is the case that the waqf was established more than 300 years before. Petitioners would contend that there are about 1500 families as beneficiaries of the waqf. Ext.P1 is the extract of byelaw regarding the administration of waqf. Ext.R1(a) is the full version of the byelaw. Term of the members elected for administration of waqf is only one year. It is the case of the petitioners that last year election was conducted on 31.12.2018. Without publishing a notice as provided for in the byelaw, the respondents took hasty steps to convene a general body on 19.04.2019. Referring to Clause 10A of the byelaw, it is stated by the petitioners that seven days clear notice should be given for conducting the election. It is also the grievance of the petitioners that no membership register or voters list was prepared for the purpose of election. It is therefore their apprehension that the respondents may stage-manage the election process. 4. The contesting respondents filed a counter affidavit opposing the allegations in the petition. According to them, the general body meeting and election were conducted so far without any problem. Annual accounts 5 O.P.(Waqf) No.16 of 2019 are presented before the general body with audit report after getting audited it by efficient members selected by the general body. According to the contesting respondents, the petition itself has become infructuous as the general body meeting as prescribed under Rule 10A of the byelaw was scheduled on 19.04.2019 and it was conducted as per the directions in the interim order dated 17.04.2019 passed by this Court. Observer appointed by the 3[rd] respondent was present. Ext.P4 report of the observer will show that the election had happened as prescribed in the byelaw. Ext.R1(c), extract of the minutes of the general body, would show that on 30.03.2018 the 68[th] general body meeting was also conducted in a proper manner. There is no irregularity or illegality in the publication of voters list and conduct of election. 5. Learned Standing Counsel for the Waqf Board submitted that the observer's report would clearly show that the election was not in a proper manner and there was pandemonium in the general body preceding the election. 6. Learned senior counsel for the contesting respondents would contend that as per the terms of byelaw, especially Clause 18, there is no prescribed manner in which the election has to be held. In fact, the election process was done in the same way as it was conducted in the previous years. Observer's report showing that after the election, there was a pandemonium may not affect the valid election already done in the jamaath. It is also pointed out that the grounds urged in the petition are 6 O.P.(Waqf) No.16 of 2019 unsustainable and it is only an attempt to stall the election process. 7. Learned counsel for the petitioners would contend that Ext.P4 observer's report clearly shows the illegal manner in which the election was conducted. According to him, petitioners were not permitted to file nomination papers and they were literally prevented from participating in the election and they were forced to boycott election. It is seen from the records that the quorum of general body is 100. But as per the report of the observer, 266 persons attended the general body, out of which 72 boycotted. Learned senior counsel pointed out that even then there is no shortage in the prescribed quorum. 8. Learned Standing Counsel for the Wakf Board pointed out that the byelaw needs serious revamping since there are so many missing links regarding the manner as to how the election should be conducted. After hearing the learned counsel on both sides and on perusal of the records, we are of the view that the reliefs claimed in the petition cannot be granted as such because the election has happened despite the pandemonium occurred thereafter. Reliance is placed by the learned senior counsel on **Abdul Latheef C.K. and others v. Adv. K.M.Haneefa and others (2015 (3) KHC 844)** to contend that courts shall be loathe to interfere in the election process. Therefore, the petitioner's remedy is only to approach the appropriate authority for making requisite changes in the byelaw, if they feel so in order to ensure proper maintenance of 7 O.P.(Waqf) No.16 of 2019 membership register and voters list. As there is no illegality pointed out in publishing and conduct of election this year, we do not feel it proper to interfere in the matter. Without prejudice to the right of the petitioners to approach the appropriate authority, we dismiss the petition. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** **SHIRCY V., JUDGE.** **cks** 8 O.P.(Waqf) No.16 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE BYELAWS.** **EXHIBIT P2** **TRUE COPY OF THE NOTICE TO CONDUCT GENERAL BODY AND ELECTION DATED 08.04.2019.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE WAKF BOARD SIGNED BY 117 MEMBERS DATED 13.4.2019.** **EXHIBIT P4 TRUE COPY OF THE REPORT OF THE OBSERVER APPOINTED BY THE 3RD RESPONDENT DATED 2204-2019.** **RESPONDENT'S/S EXHIBITS:** ## **EXHIBIT R1(a)** TRUE COPY OF THE BYELAW OF THE NETTOOR MAHALLUR MUSLIM JAMA-ATH **EXHIBIT R1(b)** COPY OF THE MINUTES OF THE ANNUAL GENERL BODY METTING HELD ON 19/4/2019 **EXHIBIT R1(c)** COPY OF THE EXTRACT OF THE MINUTES OF THE 68TH GENERAL BODY MEETING CONDUCTED ON 30/3/2018 **EXHIBIT R1(d)** COPY OF EXT.P3 ALLEGED TO HAVE FILED ON 13/4/2019 AND PENDING BEFORE THE 3RD RESPONDENT WITH THE ORDERS OF THE CHIEF EXECUTIVE OFFICER OF THE KERALA STATE WAQF BOARD **EXHIBIT R1(e)** COPY OF THE ALLEGED MAS PETITION DATED 31/12/2018 SUBMITTED BY THE PETITIONERS **EXHIBIT R1(f)** COPY OF THE EXTRACT OF THE MINUTES OF THE 67TH ANNUAL GENERAL BODY MEETING HELD ON 14/4/2017.