O.P.(Wakf) No.30 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **OP (WAKF).No.30 OF 2019** **ORDER IN OP 108/2019 DATED 23-07-2019 OF KERALA WAKF BOARD, ERNAKULAM** ## **PETITIONERS/PETITIONERS 1 & 2:** **1 JAMAL A.A. AGED 54 YEARS S/O. ABDUL KHADER,ARACKA PARAMBIL (H), NETTOOR P.O, ERNAKULAM DISTRICT, PIN-682 040** **2 JASEER.N.A., AGED 32 YEARS S/O. ABDUL KHADER .V., NANGYARATHU PARAMBIL (H), NETTOOR P.O, ERNAKULAM DISTRICT, PIN-682 040** **BY ADVS. SRI.RENJITH B.MARAR SRI.SADCHITH.P.KURUP SMT.LAKSHMI.N.KAIMAL SMT.SINDHU K.S. SRI.C.P.ANIL RAJ** ## **RESPONDENTS/RESPONDENTS:** **1 THE CHIEF EXECUTIVE OFFICER KERALA STATE WAQF BOARD, ERNAKULAM, VIP ROAD, KALOOR, KOCHI-682 017** ## **O.P.(Wakf) No.30 of 2019** ## **:-2-:** - **2 NETTOOR MAHALLU MUSLIM JAMA-ATH,** - **NETTOOR P.O, ERNAKULAM DISTRICT, REPRESENTED BY ITS PRESIDENT SAYED IMBICHI KOYA THANGAL, AGED 57, NADUVILE VEETTIL,NETTOOR P.O, ERNAKULAM DISTRICT, PIN-682 040** - **3 P.M.ABDUL KARIM AGED ABOUT 59 YEARS** - **S/O.MOHAMMED, SECRETARY, NETTOOR MAHALLU MUSLIM JAMA-ATH, NETTOOR P.O., RESIDING AT PERINGATTUPARAMBIL, NETOOR P.O., ERNAKULAM DISTRICT-682 040** - **4 SAYED IMBICHI KOYA THANGAL, AGED 57 YEARS** - **NADUVILE VEETIL,NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **5 MOHAMMED JISWAN.N.K., AGED 55 YEARS, S/O NOT KNOWN NADUVILE VEEDU,NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **6 T.B.ABDUL KARIM, AGED ABOUT 57 YEARS** - **S/O. BEERANKUTTY, THANAPPARAMBIL HOUSE,NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **7 MUHAMMEDKUTTY.K.M., AGED ABOUT 58 YEARS, FATHER'S NAME NOT KNOWN TO THE PETITIONERS, KALLUTHANI PARAMBIL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **8 JAMAL.K.M., AGED ABOUT 53 YEARS,FATHER'S NAME NOT KNOWN TO THE PETITIONERS, KALLUKATTU HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT-682 040** ## **O.P.(Wakf) No.30 of 2019** ## **:-3-:** - **9 MOHAMMED KUTTY C.A., AGED ABOUT 52 YEARS S/O. ABDUL KHADER, CHATHENKERIL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **10 MOHAMMED SHAFI.K.P., AGED ABOUT 56 YEARS, FATHER'S NAME NOT KNOWN TO THE PETITIONERS, VALIYAVEETTIL PARAMBU, NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **11 SHAMSUDHEEN.V.K., AGED ABOUT 59 YEARS, FATHER'S NAME NOT KNOWN TO THE PETITIONERS, VETTIKATTU HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **12 ARSHAD.A.K., AGED ABOUT 42 YEARS S/O. KUNJU MUHAMMED, AZHIKKAKATHU HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **13 JALAL.K.M., AGED ABOUT 45 YEARS S/O.M.MAMMU,KANOTHU PARAMBIL (H),NETTOOR P.O., ERNAKULAM DISTRICT-682 040** - **14 KERALA STATE WAQF BOARD, ERNAKULAM VIP ROAD, KALOOR, KOCHI-682 017 REPRESENTED BY THE CHIEF EXECUTIVE OFFICER** **BY ADV.T.P.SAJID, SC** **THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 06.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **O.P.(Wakf) No.30 of 2019** **==> picture [34 x 8] intentionally omitted <==** **==> picture [286 x 9] intentionally omitted <==** Heard the learned counsel for the petitioners and the learned counsel for the contesting respondents. 2. The petitioners approached the Kerala Wakf Board, Ernakulam, with O.P.No.108 of 2019 (Ext.P6), seeking the following reliefs; “a) To declare that the general body meeting of 1[st] respondent Jama-ath convened on 19/4/2019 as illegal and void and to order for convening a fresh general body meeting as is stipulated in the Byelaw of Jama-ath. b) to conduct the election of the managing committee of 1[st] respondent Jama-ath under the control and supervision of a returning officer so appointed by the board through secret ballot after preparing a voters list of eligible voters in the Jama-ath. c) to declare that the Election (Selection) of respondents 3 to 12 as the executive committee members to the 1[st] respondent Jama-ath in the general body meeting held on 19/4/2019 as ## **O.P.(Wakf) No.30 of 2019** ## **:-5-:** illegal and to prohibit them from interfering in the management and administration of the Jama-ath and to declare that their decisions and actions no way affecting dignity and freedom of the jama-ath and its members. d) to amend the Byelaw of the Jama-ath under the control and directions of this honourable Board so as to enable the future committees to manage the affairs of 1[st] respondent Jama-ath in a legal and proper way. e) to appoint an auditor for taking control of the accounts and records of the 1[st] respondent Jama-ath and to conduct Auditing of the books of accounts.” 3. The Chief Executive Officer of the Board as per Ext.P9 cryptic order, disposed of O.P.No.108 of 2019 in the following manner; “This petition is filed in respect of the validity of the election conducted to the Nettoor Mahallu Muslim Jama-ath, Nettoor P.O., Ernakulam District. The reliefs sought by the petitioners are to declare that the general body meeting of the respondent Jama-ath held on ## **O.P.(Wakf) No.30 of 2019** ## **:-6-:** 19-04-2019 as illegal and to order for convening a fresh general body meeting as per the bye-law. The petitioner also prayed to conduct the election under the supervision and control of a Returning Officer appointed by the Board. However, in this matter it is informed by office that OP(Wakf)No.16/2019 filed by some other beneficiaries of the same respondent Jama-ath before the Hon'ble High Court of Kerala, for the same reliefs was disposed by the Hon'ble High Court with an observation that there is no illegality in the election conducted for this year. In the said judgment dated 11-07-2019 the Hon'ble High Court also observed that the petitioners can approach the appropriate authority for making requisite changes in the bye-law to ensure proper maintenance of membership register and voters list in the future. Under these circumstances this OP is dismissed.” 4. Learned counsel for the petitioners contended that the order passed is legally unsustainable for myriad reasons. This Court had ## **O.P.(Wakf) No.30 of 2019** ## **:-7-:** occasion to consider a dispute relating to the same Nettoor Mahallu Muslim Jama-ath in O.P.(Wakf)No.16 of 2019 and disposed of the matter as per judgment dated 11.7.2019 (Ext.P5). After hearing both sides, the original petition was disposed in the following manner; “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 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 ## **O.P.(Wakf) No.30 of 2019** **==> picture [34 x 8] intentionally omitted <==** matter. Without prejudice to the right of the petitioners to approach the appropriate authority, we dismiss the petition.” Learned counsel for the petitioners contended that the Board is not justified in flouting the direction of this Court in Ext.P5 judgment and disposing of the matter as per Ext.P9 order. 5. Learned counsel for the contesting respondents submitted that nothing survives for consideration, in the light of Ext.P5 judgment. Learned Standing Counsel for the Board also supported the stand taken by the Chief Executive Officer of the Board. 6. Having regard to the facts and circumstances of the case, we do not find any legal justification for passing Ext.P9 order. It is also the grievance of the petitioners that two interlocutory applications filed along with Ext.P6 ## **O.P.(Wakf) No.30 of 2019** ## **:-9-:** original petition were not even numbered. It is also alarming to note that Ext.P9 order was passed on the date of filing of Ext.P6 original petition itself. It appears that there is clear travesty of justice. In the result, this original petition is allowed. Ext.P9 order is set aside. The State Wakf Board is directed to consider Ext.P6 (O.P.No.108 of 2019) and the interlocutory applications filed therein, with due notice to all the parties, as expeditiously as possible, at any rate within a period of three months. The parties shall appear before the Wakf Board on **19.8.2019** , the date on which the Board is said to be sitting. The interlocutory applications filed along with the original petition shall be disposed of within a period of two weeks from the date of appearance of parties. ## **O.P.(Wakf) No.30 of 2019** **:-10-:** All pending interlocutory applications are closed. Sd/- **A.HARIPRASAD JUDGE** Sd/- **SHIRCY V. JUDGE** ami/ ## **O.P.(Wakf) No.30 of 2019** ## **:-11-:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE EXISTING BYE LAW OF THE 2ND RESPONDENT JAMA-ATH** **EXHIBIT P2 TRUE COPY OF THE MASS PETITION DATED 13/4/2019 IS PREFERRED BY THE MEMBERS OF THE JAMA-ATH BEFORE THE 1ST RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 17.4.2019 IN O.P(WAKF) 16/2019** **EXHIBIT P4 TRUE COPY OF THE REPORT DATED 22/4/2019 EXHIBIT P5 TRUE COPY OF THE ORDER DATED 11/7/2019 IN O.P(WAKF) 16/19 PASSED BY THIS HON'BLE COURT** **EXHIBIT P6 TRUE COPY OF O.P.NO.108/2019 ON THE FILES OF KERALA STATE WAKF BOARD, ERNAKULAM** **EXHIBIT P7 TRUE COPY OF I.A. FOR THE DIRECTION TO CONTINUE RESPONDENTS 2 AND 3 AS THE MUTAVLLI** **EXHIBIT P8 TRUE COPY OF THE I.A. FOR THE DIRECTION NOT TO HANDOVER THE CHARGE AND BOOKS OF ACCOUNTS OF THE JAMA-ATH** **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 23/7/2019 IN O.P.NO.108/2019**