Kodakkad Nusrathul Islam Mahallu Committee v. Hassainar Musliar, Kasim Saqafi and Kerala State Waqf Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939 RP.No. 1068 of 2017 IN OPWT. 42/2017 ........ AGAINST THE JUDGMENT IN OP (WAKF) 42/2017 of HIGH COURT OF KERALA DATED 20-06-2017 REVIEW PETITIONERS/RESPONDENTS 1 TO 3/PETITIONERS IN THE I.As./PLAINTIFFS 1 TO 3 IN THE SUIT. 1 KODAKKAD NUSRATHUL ISLAM MAHALLU COMMITTEE PRESIDENT P.K. IMBICHIKOYA THANGAL, AGED 52 YEARS, S/O LATE POOKUNJUKOYA THANGAL, PONNANIKUNNATH HOUSE, KODAKKADU P.O., MANNARKAD TALUK, PALAKKAD DISTRICT-678 583. 2 K. ABDU HAJI, AGED 65 YEARS, S/O AHAMMED KUTTY,KARUNIAN HOUSE, KODAKKAD P.O.,VICE PRESIDENT, KODAKKAD NUSRATHUL ISLAM MAHALLU COMMITTEE, KODAKKAD-678 583. 3 V. ABOO, AGED 56 YEARS, S/O KUNJAPPU,VENNAKKATTU HOUSE, KODAKKAD P.O.,SECRETARY, KODAKKAD NUSRATHUL ISLAM MAHALLU COMMITTEE, KODAKKAD-678 583. BY ADVS.SRI.P.CHANDRASEKHAR SRI.P.SREEKUMAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.P.A.MOHAMMED SHAH SMT.V.A.HARITHA SMT.P.M.MAZNA MANSOOR RESPONDENT(S)/PETITIONERS/RESPONDENTS/ DEFENDANTS 1 AND 2 IN THE SUIT AND WAKF BOARD: 1. HASSAINAR MUSLIAR, AGED 65 YEARS, S/O KOYA, PARACKAL HOUSE, KODAKKADU P.O., PALAKKAD DISTRICT-678 583. 2. KASIM SAQAFI, AGED 38 YEARS, S/O. MOIDU, MELETHIL HOUSE, KODAKKADU P.O., MANNAFKADU, PALAKKAD DISTRICT. 3. THE KERALA STATE WAKF BAORD VIP ROAD, KALOOR, ERNAKULAM, 682 017, REP. BY. ITS CHIEF EXECUTIVE OFFICER. R1 & 2 BY SRI.K.PAUL KURIAKOSE R3 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dsn ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------Review Petition No.1068 of 2017 in O.P.(Waqf)No.42 of 2017 -------------------------------------------------DATED THIS THE 7[th] DAY OF MARCH, 2018** ## **ORDER** ## **ANIL K. NARENDRAN, J.** The review petitioners are respondents 1 to 3 in O.P.(Wakf) No.42 of 2017. The said original petition was one filed under Article 227 of the Constitution of India against a common order of the Waqf Tribunal, Ernakulam dated 2.5.2017 in I.A.No.11 and 12 of 2017 in W.O.S.No.1 of 2017. Respondents 1 and 2 herein are the defendants in that suit. By the judgment dated 20.6.2017, O.P. (Wakf)No.42 of 2017 was allowed by setting aside Ext.P8 order passed by the Tribunal in I.A.Nos.11 and 12 of 2017, thereby dismissing the aforesaid I.As. Considering the facts and circumstances of the case, this Court imposed a cost of Rs.15,000/on the petitioners herein, who are the President, Vice President and 'Working Secretary' of the Mahallu Committee and it was also made clear that the said amount has to be deposited within the time stipulated in the said order from their own pockets. Paragraphs 33 to 40 and the operative portion of the judgment read thus: R.P.No.1068 of 2017 -2- “33. In the instant case, in Ext.P6 counter affidavit the defendants have raised a specific contention that the plaintiffs have approached the Tribunal with unclean hands, suppressing material facts, inasmuch as, the very fact that the defendants are the elected General Secretary and Secretary respectively of the 1[st] plaintiff Mahallu Committee is suppressed in Ext.P1 plaint as well as in the affidavit accompanying to Exts.P4 and P5 interlocutory applications. As we have already noticed, as per the cause tittle of Ext.P1 plaint and Exts.P4 and P5 interlocutory application, the defendants are sued in their individual names, without disclosing the fact that they are the elected office bearers of the 1[st] plaintiff Mahallu Committee, which is nothing but a calculated attempt made by the plaintiffs to suppress material facts from the notice of the Tribunal. However, the Tribunal has not even adverted to the said aspect of the matter while granting the order of interim injunction as sought for in I.A.No.11 of 2017. Since the plaintiffs had approached the Tribunal with unclean hands, suppressing material facts from the notice of the Tribunal, they are not entitled for an order of interim injunction as sought for in the said interlocutory application. For the above reasons, the order of interim injunction granted by the Tribunal in I.A.No.11 of 2017 cannot be sustained in law and the same is hereby set aside. R.P.No.1068 of 2017 -3- 34. In I.A.No.12 of 2017, the plaintiffs sought for an order to appoint a Returning Officer for conducting fair and proper election to the 1[st] plaintiff Mahallu Committee by secret ballot. The said interlocutory application was filed based on an averment that the next election to the Working Committee of the 1[st] plaintiff Mahallu Committee is due on 15.1.2017 and that, as per clause (9) of Ext.P2 bye-law, election to the Working Committee of the Jama-ath should be conducted every year during the month of January and it has become a custom and practice in the Jamaath. In Ext.P7 counter affidavit filed to Ext.P5 interlocutory application, the specific stand taken by the defendants was that they were elected in the General Body of the 1[st] plaintiff Mahallu Committee held on 15.1.2016 and as per the provisions under Ext.P2 bye-law the term of the present Committee will expire only on 15.1.2019. 35. As discernible from sub-clause (a) of clause (7) of Ext.P2 bye-law, the term of the elected Working Committee shall be 3 years and the said committee may be re-elected or a new committee be elected in the next General Body convened on the expiry of the said term. Sub-clause (a) of clause (9) of the said bye-law provides that, every General Body convened on the expiry of the term of the Working Committee for electing a new Working Committee, shall be R.P.No.1068 of 2017 -4- convened in the month of January of that year. A combined reading of the aforesaid provisions would make it explicitly clear that, the term of the elected Working Committee is 3 years and that, every General Body convened on the expiry of the said term for electing a new Working Committee shall be convened in the month of January of that year. 36. In Para.10 of Ext.P8 order, the Tribunal rightly found that sub-clause (a) of clause (9) of Ext.P2 byelaw does not mandate election to the Jama-ath Committee every year and the contention to that effect made by the plaintiffs is not supported by any provisions of the said bye-law. The Tribunal has also noticed that as per the provisions under the Waqf Act, 1995 the Jama-ath Committee shall be allowed to function till it is superseded by the Waqf Board as provided under the said Act. 37. When Ext.P2 bye-law of the 1[st] plaintiff Mahallu Committee makes specific provision regarding the term of the elected Working Committee as 3 years, 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 officer 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 R.P.No.1068 of 2017 -5- 1[st] plaintiff Mahallu Committee. In view of the provisions under sub-section (1) of Section 67 of the Waqf Act, 1995 the elected Working Committee shall continue to function until it is superseded by the Waqf Board or until the expiry of its term as may be specified by the waqf, whichever is earlier. Since the term of the present committee, which was elected on 15.1.2016, will expire only on 15.1.2019, the Tribunal went wrong in appointing an Advocate Commissioner as the Returning Officer to conduct election to the Working Committee of the 1[st] plaintiff Mahallu Committee. In that view of the matter, the order of the Tribunal in I.A.No.12 of 2017 appointing an Advocate Commissioner as the Returning Officer to conduct election to the Working Committee of the 1[st] plaintiff Mahallu Committee cannot be sustained in law and the same is hereby set aside. 38. In **Dhananjay Sharma v. State of Haryana [(1995) 3 SCC 757]** the Apex Court held that filing of false affidavits or making false statement on oath in courts aims at striking a blow at the rule of law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving R.P.No.1068 of 2017 -6- of false statements and fabricating false evidence in a court of law. The relevant portion of paragraph 38 of the said verdict reads as follows : “ **38.** Section 2(c) of the Contempt of Courts Act 1971 (for short the Act) defines criminal contempt as the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to candalise or lower or tend to lower the authority of any Court; (2) prejudice or interfere or interfere or tend to interfere with the due course of judicial proceedings; or (3) interfere or tend to interfere with, or obstruct or tend to obstruct the administration of justice in any other manner. Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceeding amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceeding not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or R.P.No.1068 of 2017 -7- even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the Rule of Law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving of false statements and fabricating false evident in a court of law. The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial proceedings or the administration of justice. In **Chandra Shashi v. Anil Kumar Verma [(1995) 1 SCC 421 : 1994 AIR SCW 4994]** the respondents produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interference with the administration of justice. Brother Hansaria, J. R.P.No.1068 of 2017 -8- speaking for the Bench observed: (at p.4995, of AIR) “the stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitaility to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceeding; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.” 39. In **Muthu Karuppan V. Parithi Ilamvazhuthi [(2011) 5 SCC 496]** the Apex Court expressed the view that filing of a false affidavit should be effectively curbed with a strong hand. In **Sciemed Overseas Inc. Vs. BOC India Ltd. [(2016) 3 SCC 70]** , the Apex Court observed that though the observation in **Muthu Karuppan's case (supra)** was made in the context of contempt of court proceedings, the view R.P.No.1068 of 2017 -9- expressed must be generally endorsed to preserve purity of judicial proceedings. 40. In the instant case, as we have already noticed, the fact that the 1[st] defendant is the elected General Secretary and the 2[nd] defendant is the elected Secretary of the 1[st] plaintiff Mahallu Committee, who were elected in the General Body held on 15.1.2016 is suppressed in Ext.P1 plaint as well as in the affidavit accompanying to Exts.P4 and P5 interlocutory applications. Though there is no provision in Ext.P2 bye-law to elect a Working Secretary to the Working Committee of the 1[st] plaintiff Mahallu Committe, in Para.1 of Ext.P1 plaint and Para.2 of the affidavit accompanying to Exts.P4 and P5 interlocutory applications, it is averred that the Mahallu Committee is represented by its President and the 2[nd] and 3[rd] plaintiffs are the Vice President and Working Secretary respectively of the 1[st] plaintiff Committee. Ext.P1 plaint also contains a 'verification clause' at the foot of it, signed by the plaintiffs as the President, Vice President and Working Secretary respectively of the said Committee. Moreover, as per the cause tittle of Ext.P1 plaint and Exts.P4 and P5 interlocutory applications, the defendants are sued in their individual names, without disclosing the fact that they are the elected office bearers of the 1[st] plaintiff Mahallu Committee, which is nothing but a calculated attempt made by the plaintiffs R.P.No.1068 of 2017 -10- to suppress material facts from the notice of the Tribunal. Therefore, considering the facts and circumstances of the case, we deem it appropriate to impose a cost of 15,000/- on the President of the 1₹ st respondent Mahallu Committee and also on the 2[nd] and 3[rd] respondents, namely, the Vice President and Working Secretary respectively of the said Committee, payable to the petitioners, namely, the defendants before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. They shall deposit the said amount before the Tribunal, within the time limit stipulated as above, from their own pockets, and on such deposit being made the Tribunal shall permit the petitioners/defendants to withdraw the said amount. In the result, this original petition is allowed as above by setting aside Ext.P8 order passed by the Tribunal in I.A.Nos.11 and 12 of 2017 and the said interlocutory applications stand dismissed.“ 2. Now the review petitioners are before this Court in this review petition filed under Order XLVII Rule 1, contending that there is error apparent on the face of record warranting review of the judgment dated 20.6.2017 in O.P.(Waqf)No.42 of 2017. 3. Heard the learned counsel for the petitioner, the learned R.P.No.1068 of 2017 -11- counsel for respondents 1 and 2 and also the learned Standing Counsel for the 3[rd] respondent Waqf Board. 4. The grounds raised in this review petition filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 read thus; “A. It is submitted that the judgment of this Honourable Court which is the subject matter of this Review Petition suffers from errors on the face of the record and is liable to be reviewed in the interest of justice and for ends of justice. B. It is submitted that the review petitioners have not suppressed any material fact or document. Admittedly, there are two factions of Kodakkad Nusrathul Islam Mahallu Committee following two factions one led by EK Abubacker Musaliar of Samastha Kerala Islam Matha Vidyabhyasa Board and another led by AP Abubacker Musaliar (Kanthapuram) of Samastha Kerala Sunni Vidyabhyasa Board. Both these factions are operating separately and are having separate Mahallu Committees. Which of the two is the committee entitled to administer the Madarassa is a matter of adjudication. C. The Sub Divisional Magistrate's order clearly indicates that the administration of the Madarassa R.P.No.1068 of 2017 -12- and the teaching in the Madarass have to be done as in the manner obtainable as on the date of the prohibitory order. As on that date the syllabi taught in the Madarassa was that of Samastha Kerala Islam Matha Vidyabhyasa Board. As such respondents 1 and 2 who belong to the faction following the directives of Samastha Kerala Sunni Vidyabhyasa Board cannot claim that they are in administration of the Madarass as on the date of the prohibitory order. D. From the aforesaid facts it can be clearly seen that the review petitioners have not suppressed any material fact and that it was respondents 1 and 2 who suppressed material fact. - E. It is submitted that judgment of this Hon'ble Court is liable to be reviewed in the interest of justice. - F. The order directing the review petitioners to pay Rs.15,000/- as cost is also liable to be reviewed and vacated in the interest of justice.” ## 5. In **Northern India Caterers (India) Ltd. v. Lt. Governor of** **Delhi [1980 (2) SCC 167]** the Apex Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. In **Thungabhadra Industries Ltd v. Government of Andra Pradesh [AIR 1964 SC 1372]** the Apex R.P.No.1068 of 2017 -13- Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. ## 6. In **Parsion Devi v. Sumitri Devi [1997 (8) SCC 715]** the Apex Court reiterated that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. Later, in **Lily Thomas v. Union of India [2006 (3) SCC 224]** the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Viewed in the light of the law laid down by the Apex Court in the decisions referred to above, none of the grounds raised in this review R.P.No.1068 of 2017 -14- petition falls within the scope of review jurisdiction of this Court under Order XLVII Rule 1 of the Code of Civil Procedure. In such circumstances, this review petition is devoid of merit and the same is accordingly dismissed. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** dsn True copy P.S. to Judge