High Court of KeralaDivision BenchOriginal petition is allowed, with the Wakf Tri...

OP (WAKF) NO. 19 OF 2024

Case / Petition Number:OP (WAKF) NO. 19 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Amit Rawal
  • Easwaran S. Thurday
Judgment Date
2024-07-18
Court Decision / Holding
Original petition is allowed.
Final Disposition
Original petition is allowed, with the Wakf Tribunal’s interim order set aside; petition remains open for revision under law if desired.

Parties to the Case

Appellants / Petitioners

  • Thevalakkara Shareeful Islam Jama-ath Mottaikal
  • Ashraf Inchakkal
  • Ansar C.S.
  • I. Muhammed Kunju
  • Ibrahimkutty
  • Akber
  • Abdul Samad
  • Unaiz Basheer
  • Abdul Wahab
  • Ismail Kunju
  • Hashim Kuttippurath

Respondents

  • Ameer B.
  • Abdul Kalam
  • M. Ibrahim Kutty
  • Kerala State Wakf Board

Legal Representation & Advocates

Counsels for Petitioners

  • • T.K. Sreekala
  • • S. Parvathi
  • • Athira Prasad
  • • Anand Geo
  • • K. I. Mayankutty Mather (Sr.)

Counsels for Respondents

  • • Jamsheed Hafiz

Case Synopsis & Summary

OP(WAKF) No. 19 of 2024 before the Kerala High Court challenges a Wakf Tribunal order dated 04.07.2024 appointing an interim Muthavally in the dispute concerning Thevalakkara Shareeful Islam Jama-ath. The matter stems from an AGM held on 11.05.2024 electing a 70-member Jama-ath Council and contemplated the election of a Chairman and Secretary, with contention over quorum requirements for those elections. The Tribunal found the quorum insufficient for the meetings convened and, as an interim measure, appointed a Muthavally to oversee day-to-day administration. The petitioners sought to restrain the new officers from acting and to enable the pre-11.05.2024 council to conduct affairs until resolution of the suit; they argued there was no mandatory quorum for the initial appointment of office bearers and that interim governance should be avoided. The respondents contended that bye-laws do not require a quorum for the initial appointment and urged that the matter be resolved through the Wakf Act’s revised remedy under Section 83(9) and the revisional powers of the High Court, while also citing Article 227 of the Constitution as a fallback. The High Court, applying principles from Surya Dev Rai, Radhey Shyam and Shalini Shyam Shetty, held that there is an alternative statutory remedy and limited supervisory interference; the interim order was a miscarriage of justice under the bye-laws, and the petition was allowed, setting aside the Tribunal’s order with scope for revision under law.

Provisions of Law Cited

Wakf Act, 1995Section 83(9) (Proviso to sub-section 9)Order VI Rule 17 of the CPCArticle 227 of the Constitution of India

Legal Doctrines & Maxims

  • Where there is an appropriate or equally efficacious remedy the Court should keep its hands off (K.K. Shrivastava v. Bhupendra Kumar Jain)
  • High Courts cannot, at the drop of a hat, interfere with the orders of tribunals inferior to it (Shalini Shyam Shetty)
  • Alternative statutory remedy operates as restraint on supervisory powers (Shalini Shyam Shetty)
  • Supervisory jurisdiction under Article 227 should be exercised with caution; not as an appeal (Shalini Shyam Shetty)
  • Per incuriam (term used to criticize an earlier judgment for not considering binding authority)
  • Surya Dev Rai v. Ram Chander Rai & Ors; Radhey Shyam & Anr. v. Chhabi Nath & Ors (affirmation of supervisory/revisional principles)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Clause IV to Chapter 2 of the bye-laws does not create a quorum requirement for appointing the Chairman and Secretary; AGM decisions to elect council members on 11.05.2024 should stand with the 70-member council; subsequent meetings required quorum to proceed, but two consecutive meetings with no quorum could allow the third to be held with fewer members; interim Muthavally appointed by the Wakf Tribunal was contrary to bye-laws and settled law; there is an alternative remedy under Section 83(9) proviso and the High Court should avoid supervisory interference when a statutory remedy exists; therefore the petition should be allowed and the interim order set aside, with a direction to pursue revision as appropriate.

Contentions of Respondents

The respondents submitted that the 70-member council’s election faced quorum issues and the Tribunal’s interim order was justified to prevent misgovernance; they argued that the bye-laws permit interim management and that there is a statutory remedy under Wakf Act Section 83(9) along with revisional power; Article 227 of the Constitution should be invoked only if no effective statutory remedy exists; the case law (Surya Dev Rai, Radhey Shyam, Shalini Shyam Shetty, Muhammed Ashraf K) supports limited supervisory intervention and adherence to the statutory remedy; the High Court should not substitute its own view where an equally efficacious remedy exists.

Cited Precedents (5)

Case NameCitationTreatmentExplanation
Surya Dev Rai v. Ram Chander Rai & Ors(2003) 6 SCC 675PositiveCited to support that the High Court has supervisory powers in appropriate circumstances and that its supervisory role is not entirely excluded when reviewing tribunal orders.
Radhey Shyam & Anr. v. Chhabi Nath & Ors(AIR) 2015 SC 3269PositiveAffirms Surya Dev Rai’s principles, used to reinforce the scope of revisional/supervisory jurisdiction in the context of Wakf Act proceedings.
Shalini Shyam Shetty v. Rajendra Shankar Patil(2010) 8 SCC 329PositiveCited for the principle that where an alternative statutory remedy exists, the High Court should exercise restraint under Article 227 and not act as a court of appeal.
K.K. Shrivastava v. Bhupendra Kumar Jain & Ors(AIR) 1977 SC 1703PositiveProverbial doctrine that where an equally efficacious remedy exists, the court should keep its hands off.
Muhammed Ashraf K v. Islamic Preaching Trust & Ors(2018 (2) KHC 150)PositiveUsed to discuss revisional remedy under Wakf Act Section 83(9) and interact with Division Bench’s view, highlighting the proper remedy before revisional jurisdiction.

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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S. THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 OP (WAKF) NO. 19 OF 2024** ## **PETITIONER(S)/RESPONDENT 1,2, 4 TO 12/DEFENDANTS 1,2, 4 TO 12:** - **1 THEVALAKKARA SHAREEFUL ISLAM JAMA-ATH MOTTAIKKAL, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM - 690 524, REP. BY ITS COUNCIL CHAIRMAN - ASHRAF INCHAKKAL, S/O. ABDUL RAZAK, AGED 65 YEARS, INCHAKKAL HOUSE, MULLIYIKKALA, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM., PIN - 690524** - **2 ASHRAF INCHAKKAL AGED 65 YEARS** - **S/O. ABDUL RAZAK, AGED 65 YEARS, INCHAKKAL HOUSE, MULLIYIKKALA, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM., PIN - 690524** - **3 ANSAR C.S. AGED 46 YEARS** - **S/O. SULAIMAN KUNJU, CHERIYA CHALIL HOUSE, THEVALAKKARA, KOYIVILA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM., PIN - 691590** - **4 I. MUHAMMED KUNJU AGED 55 YEARS** **S/O. ISMAIL, , KOCHUMANGALAM HOUSE, MULLIYIKKALA, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690524** - **5 IBRAHIMKUTTY AGED 62 YEARS** - **S/O. MUHAMMED KUNJU, KANIYANTE KIZHAKKETHIL, MOTTAIKKAL, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690524** ## **6 AKBER** - **AGED 55 YEARS** - **S/O. THANGHAL KUNJU, AMINA MANZIL, MULLIYIKKALA, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM., PIN – 690524** **OP (WAKF) NO. 19 OF 2024** **2** - **7 ABDUL SAMAD AGED 44 YEARS** **S/O. MUHAMMED KUNJU, APS MANZIL, MULLIYIKKALA, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM., PIN - 690524** - **8 UNAIZ BASHEER AGED 40 YEARS** - **S/O. BASHEER, AS MANZIL (THANDATH), MULLIYIKKALA, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM., PIN - 690524** - **9 ABDUL WAHAB AGED 56 YEARS** **S/O. MAITHEEN KUNJU, PULLIKKATTIL (KANNEL), MOTTAIKKAL, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690524** - **10 ISMAIL KUNJU AGED 68 YEARS** - **S/O. ABDUL RAHMAN KUNJU, KOTTAPPALLIL HOUSE, MULLIYIKKALA, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690524** - **11 HASHIM KUTTIPPURATH AGED 44 YEARS** - **S/O. SHOUKATH, KUTTIPPURATH HOUSE, ARINALLOOR, THEVALAKKARA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690524** **BY ADVS. T.K.SREEKALA S.PARVATHI ATHIRA PRASAD ANAND GEO** **K.I.MAYANKUTTY MATHER (SR.)** **OP (WAKF) NO. 19 OF 2024** **3** ## **RESPONDENT(S)/PETITIONER AND RESPONDENTS 3, 13 AND 14/PLAINTIFF AND DEFENDANTS 3, 13 AND 14:** - **1 AMEER B.** - **S/O. BASHEER KOYA, AR MANZIL, THEVALAKKARA, KOYIVILA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY, KOLLAM, PIN - 691590** - **2 ABDUL KALAM** - **AGED 58 YEARS, S/O. SHAHUL HAMEED, KOTTAKKAKATH KIZHAKKETHIL HOUSE, THEVALAKKARA, KOYIVILA P.O., THEVALAKKARA VILLAGE, KARUNAGAPPALLY, KOLLAM (COUNCIL SECRETARY THEVALAKKARA SHAREEFUL ISLAM JAMA-ATH), PIN - 691590** - **3 M. IBRAHIM KUTTY AGED 65 YEARS, ADVOCATE & NOTARY, REG. NO. K/34/86, MASJID BUILDING, ADVOCATE LINE, KARUNAGAPPALLY P.O., KOLLAM., PIN - 690518** - **4 KERALA STATE WAKF BOARD REP. BY CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, KOCHI., PIN - 682017** ## **BY ADV Jamsheed Hafiz** ## **OTHER PRESENT:** ## **SR.ADV.K.I.MAYAN KUTTY MATHER** ## **RAKESH K. R1-2,JAMSHEED HAFIZ SC R4** **THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (WAKF) NO. 19 OF 2024** **4** ## JUDGMENT ## Amit Rawal, J. 1. Present OP(Wakf) is directed against the order dated 4.7.2024 passed in I.A No.451 of 2024 in W.O.S No.31 of 2024 preferred by the 1[st] respondent, one of the members of Thevalakkara Shereeful Islam Jama-ath whereby in a pending W.O.S seeking the following reliefs, while disposing of the interim application, an interim Muthavally has been appointed. A. To direct the 13th defendant - Returning Officer to convene an urgent meeting of the 70 member Council of the 1st defendant who were elected in the election held on 11.05.2024 and conduct a secret ballot election to elect Council Chairman, Council Secretary and four members of the governing body as per Chapters 4,5,6 and 7 of the byelaw of the 1st defendant, failing which an Advocate Commissioner be appointed by this Hon'ble Court to conduct such election. B. Issue a permanent prohibitory injunction prohibiting defendants 2, 4 to 12 to act as the new Council Officers or Governing Body Officers and undertake such duties or take any decisions until the Council of the 1st defendant elects the office bearers and Members of the Governing Body. C. Direct the Council Officers or Governing Body Officers prior to 11.05.2024 of the 1st defendant to conduct the day to day affairs until the Council is convened and new members of the Council and the Governing Body is elected; D. Grant such other reliefs as may be prayed by the plaintiff during the pendency of this litigation as this Court may deem fit. 2. Succinctly, the facts in brief are as under: The aforementioned jama-ath has its own bye-laws. Chapter 2 of the same defines the Administration viz-a-viz General body, Ordinary **OP (WAKF) NO. 19 OF 2024** **5** general body meeting, Extra ordinary general body meeting and Annual general body meeting. Chapter 3 defines the members of the jama-ath much less their powers. On the basis of aforementioned provisions of the bye-laws, election of the jama-ath was held on 11.5.2024 and 70 members were elected. The decision to hold election is provided in the AGM. As per clause IV of Chapter 2 of bye-law, 101 Jama-ath members are required for the purpose of holding election. 3. The dispute arises with regard to holding of the meeting in respect of election/appointment of the Chairman and the Secretary either on 15[th] or 17[th] May 2024. As per the contention of the respondent-original plaintiff before the civil court, it was held on 17[th] May whereas as per the petitioner, on 15[th] May. As per clause IV of Chapter 3, the elected members can appoint Chairman and Secretary without any provision for quorum. The subsequent meetings too envisage a quorum of minimum 40 persons for day to day functioning of the jama-ath. 4. One of the members, respondent-plaintiff aggrieved of the action of elected body, filed a suit and also submitted an interim application with the following reliefs: A. Issue a temporary injunction prohibiting defendants 2, 4 to 12 to act as the new Council Officers or Governing Body Officers and undertake such duties or take any **OP (WAKF) NO. 19 OF 2024** **6** decisions until the Council of the 1 defendant elects the office bearers and Members of the Governing Body and to issue an ad interim injunction till the disposal of the suit; B. Issue a temporary injunction prohibiting defendants 2, 4 to 12 or the 3rd defendant in dispossessing the plaintiff being the present Council Secretary and to issue an ad interim injunction in this regard till the disposal of the suit; C. Issue a interim direction to permit the Council Officers or Governing Body Officers prior to 11.05.2024 of the 1 defendant to conduct the day to day affairs until the Council is convened and new members of the Council and the Governing Body is elected and to issue an ad interim injunction in this regard till the disposal of the suit. 5. The objections were filed by the elected body. However, the learned Tribunal vide impugned order, considering, the quorum was not complete for the purpose of election as there was a dichotomous opinion with regard to formation of the members, as an interim measure appointed an interim Muthavally. The said order is under challenge. 6. Learned counsel for the petitioners in support of the present petition raised the following submissions: 6.1 Clause IV to the Chapter 2 of the bye-law does not envisage any specific quorum for the purpose of appointment of the Chairman and the Secretary. 6.2 Respondent-plaintiff before the Tribunal has not challenged **OP (WAKF) NO. 19 OF 2024** **7** the holding of the AGM wherein it was decided to hold election on 11.5.2024. Of course, the subsequent meetings of the elected members is required to have a minimum quorum but with a caveat that, in case, for two consecutive meetings the quorum is not complete, third meeting can be held with less number of members without adhering to the quorum provided in the bye-laws. 6.3 The interim relief so granted tantamount to allowing the main case which is totally against the settled law. 6.4 The Tribunal should have called upon the parties to lead evidence and decide the matter on merits instead of laying focus on the interim application. 7. On the other hand, learned counsel for the respondent raised the objection qua maintainability of the OP(WAKF) by referring to the proviso to sub section 9 of Section 83 of the Wakf Act, 1995 wherein equal and efficacious remedy by way of revision petition has been provided to assail the order of Tribunal. In other words, submitted that, in the OP(WAKF) preferred under Article 227 of the Constitution of India, the court is refrained from exercising supervisory powers, therefore the present petition should be dismissed. In support of the contentions, relied upon the Division Bench judgment of this Court in Muhammed Ashraf K v. Islamic Preaching Trust & Ors (2018 (2) KHC 150) . It is further contended **OP (WAKF) NO. 19 OF 2024** **8** that all the proceedings of the committee members are nullified due to the absence of quorum. The elected members have not been able to pull on together with the 70 members elected in the election held on 11.5.2024 and in view of such dichotomy, alternative arrangements as has been done vide impugned order is fair and justified. It will prevent from taking any decision against the interest of the jama-ath. 8. In rebuttal, learned counsel for the petitioners cited the judgment of the Supreme Court in Surya Dev Rai vs Ram Chander Rai & Ors (2003 (6) SCC 675); reiterated in Radhey Shyam and Anr. v. Chhabi Nath and Orsl. (AIR 2015 SC 3269) to contend that the High Court is not denuded from exercising the supervisory powers against the orders of the Tribunal while exercising the powers under Article 227 of the Constitution of India. 9. Learned counsel for the Wakf Board adopts the similar arguments as of the learned counsel for the petitioners. 10. We have heard the learned counsel for the parties and appraised the paper book. Proviso to sub Section 9 of Section 83 of the Wakf Act reads as under: 83(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal: Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other **OP (WAKF) NO. 19 OF 2024** **9** matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. 11. On perusal of the same, it is evident that no doubt, there is an alternative efficacious remedy provided for aggrieved party to assail the order of Tribunal in the High Court. Similar ratio has been culled out in the judgment cited on behalf of the learned counsel for the respondent. Paragraph 8 to 10 of the judgment Muhammed Ashraf K (supra) reads thus: 8. On a reading of the proviso to Sec.83(9) of the Waqf Act, it is seen that the High Court is given the power, on the application of the aggrieved party, to call for and examine the record relating to 'any dispute', question or other matter which has been determined by the tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination. The expressions 'dispute' and 'determination' are not specifically defined in the Act . Therefore, general meaning provided in the dictionary can be taken for considering the scope and extent of the said expressions. In legal parlance, a dispute arises when one party asserts a thing or a matter and the other party denies it. According to the Oxford Advanced Learners Dictionary, 'dispute(n)' means disagreement and 'determination' means and includes the process of deciding something officially. It is pertinent to note that the expression 'any' is seen specifically prefixed before the expression 'dispute' so as to enlarge the extent of 'dispute'. Therefore, we are of the opinion that in a suit filed under the Waqf Act, before the tribunal, any decision taken by the tribunal on any dispute in that suit would be a determination falling under the revisional jurisdiction provided under the proviso to Sec.83 (9) of the Waqf Act. The above interpretation enlarging the scope and extent of revisional jurisdiction of this court is supported by the amendment brought by way of substitution, to Sec.83 of the Act, by Act 27 of 2013. Before the said substitution, the jurisdiction of the Tribunal was confined to determination of any dispute, question or other matter **OP (WAKF) NO. 19 OF 2024** **10** relating to a Waqf or Waqf property under the Act only. Now by the said amendment by substitution the jurisdiction of the Tribunal stands extended to determination of any dispute, question or other matter relating to eviction of a tenant or determination of rights and obligations of the lessor and lessee of such property under the Act also. Therefore it cannot be held that revisional jurisdiction of this court under the proviso to Sec.83 (9) is confined to examination of records relating to any dispute or question on Waqf or Waqf property only. Therefore, any order passed by the Tribunal on any application filed by one party and objected by the other party can be challenged in revision provided under the proviso to Sec.83 (9) of the Waqf Act, before the High Court. We find that there is a determination on dispute in the order passed on an application filed under Order VI rule 17 of CPC and thereby such orders would fall under the proviso to Sec.83 (9) of the Waqf Act and revision is the proper remedy to challenge the said order. 9. The next question to be considered is, can the High Court interfere with the orders passed by the Courts and Tribunals inferior to it invoking supervisory jurisdiction under Article 227 of the Constitution of India, where a specific alternative statutory mode of redressal has been provided under the special enactment. We find that the answer to the above question is given by the apex court in (2010) 8 SCC 329 (Shalini Shyam Shetty vs Rajendra Shankar Patil). In this decision itself the Supreme Court has considered the scope and extent of supervisory jurisdiction under Article 227 of the Constitution of India and certain principles are formulated and enumerated as (a) to (n) in the said decision. Clause (c) of the said principles reads as follows: (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. 10. Further, in AIR 1977 SC 1703 (K.K.Shrivastava etc vs Bhupendra Kumar Jain & Ors) the apex court held that 'Where there is an appropriate or equally efficacious remedy the Court should keep its hands off'. Therefore in view of the legal position well settled by the apex court we find that **OP (WAKF) NO. 19 OF 2024** **11** when a specific alternative mode of redressal is provided to challenge an order passed on an application filed under Order 6 rule 17 of the Code of Civil Procedure, this Court is not inclined to exercise supervisory jurisdiction under Article 227 of the Constitution of India to examine the legality or correctness of that order, under law. Therefore we dismiss the original petition with a liberty to file revision in accordance with law if the petitioner so desires. 12. We beg to differ with the findings of the Division Bench by treating it to be per incuriam for the simple reason that the aforementioned judgment has not taken into consideration, the landmark judgment of the Supreme Court in Surya Dev Rai (supra) which is affirmed in Radhey Shyam (supra). In both the aforementioned judgments, Supreme Court had an occasion to ponder and decide the powers of the High Court of superintendence (supervisory powers) under Article 227 of the Constitution of India. 13. Considering the aforementioned ratio, we are of the view that the objection qua maintainability does not merit acceptance and hereby rejected. 14. As far as merit of the case is concerned, the relief as claimed in the main petition and the interim application leaves no manner of doubt that, if the impugned order is permitted to sustain, in our considered view, result into miscarriage of justice and irreparable loss much less travesty of justice. It is settled law that in case the interim relief sought for tantamount to granting the main relief, the court should circumspect in passing such orders. **OP (WAKF) NO. 19 OF 2024** **12** 15. Concededly, in the AGM the election was decided to be held on 11.5.2024. Clause IV of Chapter 2 pertaining to AGM reads as under: IV. Annual General Body meeting. Annual General Body meeting should be convened in the last week of December every year. Printed notice should be circulated in the mosque showing the place of meeting, time and agenda before one week After Juma prayers on Friday). In the said meeting the annual report of the committees, statement of accounts and budget for the next year (only approved by the JamaAth council) should be presented by the Secretary of the respective committee and should subject to discussion and approval in the general body. If there necessitate a voting the members of G the respective committees will not have voting right. Members who have defaulted the annual subscription amount will also not have the voting right. In this meeting apart from the agenda the resolution as provided by law permitted by the Chairman and other urgent matters shall be discussed and decision taken. In the unofficial resolutions there should be the membership and full address of the presenter and seconder. The right to elect the members to the JamaAth Council is vested in this meeting The quorum for this meeting is limited to 101 JamaAth members. However, if there is no quorum for two meetings taking the members present in the third meeting as quorum decisions shall be taken. The name and other details of the members present should be recorded in the minutes book and signature should be affixed by the Chairman. The decisions taken by the meeting in such a manner will be and shall be applicable to all members of this JamaAth. 16. Clause 1 of Chapter 3 provides the total number of elected members; minimum 55 and maximum as 70 members. The same reads thus: Members of the JamaAth Council shall be elected from the **OP (WAKF) NO. 19 OF 2024** **13** annual general body as described in para-4 of Chapter 2. In the above said Council there should be members not below 55 and not exceed 70 members. Moreover, from among the JamaAth Musayyils one shall be elected to the Council. 17. The power and duties of the councils are enumerated in clause IV of Chapter 3. The same reads as under: IV Powers and Duties of the Council. On completion of the election to the council members, under the chairmanship of one member from among them, council shall be convened and elect Chairman and Secretary. If possible all elections should be unanimous. If not possible, election should be conducted in a democratic manner through secret ballot under the supervision of a Returning Officer decided by the Council. All meetings thereafter should be presided over by the Chairman. After the General Body of this JamaAth is over the council shall be the supreme committee All administrative committees elected from this council shall be under the control of the Council. If the council satisfy that there is administrative stalemate in any administrative committee should give necessary direction to avoid the same; if necessary to remove the above said committee with the 2/3 majority and to that place a new committee shall be elected from that council itself. The statement of accounts, reports and budget for the next year should be passed by the respective committee and obtain approval by presenting in the Council. If the Council decide that the accounts shall be subject to audit, an audit committee consisting of three members should be elected from that council and audit committee should place the audit report in the Council within 15 days. In the light of the audit report, if action is to be taken, Council will have such powers. The council shall have the power to verify the accounts of any of the committee. The council will have and shall have the power to take decision in matters which cannot be resolved in the committees. 18. On perusal of clause IV, we are not in doubt to form an **OP (WAKF) NO. 19 OF 2024** **14** opinion that for the purpose of election of Chairman and Secretary, no quorum is provided but all meetings thereafter, should be presided over by the Chairman. For removal of the said committee, a majority of 2/3[rd] is required. The said remedy could have been resorted to if there had been 2/3[rd] majority challenging or disputing the election of the Chairman and the Secretary but cannot remain unmindful of the fact that only one person has chosen to come forward. Thus what could not be achieved as per the bye-laws is sought to be achieved in the manner and mode as discussed above. Learned Tribunal while rendering the findings, in paragraph 8 by appointing the Muthavalli held as follows: 8. The point: It is an admitted fact that a 70 member council was elected in the election conducted on 11.5.2024 wherein respondent No.13 has acted as the Returning Officer. It has also come to light that there were only 36 members present in the Jama-ath council meeting subsequently convened on 17.5.2024 Going by the facts and circumstances, it is evident that the council members who faced the election contested the said election as two separate panels. So the 70 member council is divided among themselves and it would appear that there is difficulty to get the quorum of the forty members in the council meeting. Whenever the meeting is convened, there will be only the presence of 35 or 36 members. As per the bye-law, the requirement of quorum is 40 council members. It is very difficult to attain the quorum, in the given circumstances. If that be so, there cannot be any proper administration and control of the Jama- ath and the institutions thereunder, by following the present system of election and the regulation regarding quorum. The issue is to be studied at its grass-root level and it has to be resolved finally. It will take time to resolve this issue and hence for the time being, it would appear to make some other **OP (WAKF) NO. 19 OF 2024** **15** arrangement as provided under the provisions of the Waqf Act, 1995, for the proper administration and management of the waqf and the institutions functioning under it. 19. We are of the considered opinion that the said findings basically reflects the action of holding the election without quorum which is not the factual position on record as noticed above. The Tribunal remained oblivious of the provisions of clause IV of Chapter 3 of the bye-laws. Had that provisions been taken, perhaps the order would not have been there. In view of the clause IV, the order of the Tribunal appointing the Interim Muthavally is wholly atrocious and fallacious and also miscarriage of justice. Original petition is allowed. Sd/- AMIT RAWAL JUDGE sab Sd/EASWARAN S. JUDGE **OP (WAKF) NO. 19 OF 2024** **16** ## **APPENDIX OF OP (WAKF) 19/2024** ## **PETITIONER EXHIBITS** **Exhibit P1** **TRUE EXTRACT OF THE RELEVANT PROVISIONS OF THE BYELAW OF THEVALAKKARA SHAREEFUL ISLAM JAMA-ATH ALONG WITH ITS TRUE ENGLISH TRANSLATION.** **Exhibit P2** **TRUE COPY OF THE ACKNOWLEDGMENT OF THE MEETING OBTAINED BY THE RETURNING OFFICER DATED 13.05.2024 ALONG WITH ITS TRUE ENGLISH TRANSLATION** - **Exhibit P3 TRUE COPY OF THE COMMUNICATION GIVEN BY THE COUNCIL TO THE WAKF BOARD DATED 21.05.2024 ALONG WITH ITS ENGLISH TRANSLATION** - **Exhibit P4 TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT EDUCATIONAL OFFICER, CHAVARA DATED 14.06.2024 ALONG WITH ITS ENGLISH TRANSLATION** - **Exhibit P5 TRUE COPY OF THE PLAINT IN O.S. NO. 31/2024 FILED BEFORE THE WAKF TRIBUNAL, KOZHIKODE DATED 19.05.2024 ALONG WITH ITS ENGLISH TRANSLATION.** - **Exhibit P6 TRUE COPY OF I.A. NO. 451/2024 DATED 19.05.2024 IN O.S. NO.31/2024 FILED BEFORE THE WAKF TRIBUNAL, KOZHIKODE ALONG WITH ITS ENGLISH TRANSLATION** - **Exhibit P7 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 12.06.2024 FILED BY THE PETITIONERS HEREIN (DEFENDANTS 1, 2 AND 4 TO 12) TO I.A. NO. 451/2024 ALONG WITH ITS ENGLISH TRANSLATION** - **Exhibit P8 TRUE COPY OF THE ABSTRACT OF THE PROCEEDINGS OF THE WAKF TRIBUNAL, KOZHIKODE DATED 04.07.2024 (B DIARY)** **Exhibit P9** **TRUE COPY OF THE ORDER OF THE WAKF TRIBUNAL, KOZHIKODE DATED 04.07.2024 IN I.A. NO. 451/2024 INW.O.S. NO. 31/2024**