OP(WT) No. 62 of 2017 & CRP (Wakf) No. 68 of 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940 OP (WT).No. 62 of 2017 AGAINST THE ORDER/JUDGMENT IN IA NO.536/2017 IN OS 43/2016 of WAKF TRIBUNAL, KOLLAM DATED 28/10/2017 ## PETITIONER(S) 1 A.HAMMED KUTTY, AGED 77,S/O.LATE ASSANARUKUNJU,THUNDIL VEEDU, PALLISSERICKAL.P.O,SASTHAMCOTTA-690521. 2 (MUHAMMED KUNJU.K), AGED 64,S/O.LATE.KHADEER KUNJU,KALLATHUVILAYIL(PUTHENPURAYIL), PALLISSERICKAL.P.O,SASTHAMCOTTA-690521. ( ***EXPIRED)** ## ADDL.3RD PETITIONER IMPLEADED 3. SATHAR, AGED 37, S/O LATE MUHAMMED KUNJU K. KALLATHUVILAYIL (PUTHENPURAYIL), PALLISSERICKAL PO, SASTHAMCOTTA 690521. (THE PETITIONER IN IA NO.62/18 WHO IS THE PROPOSED ADDL.11TH RESPONDENT IN IA NO.12/18 IS TRANSPOSED AS ADDL.THIRD PETITIONER AS PER ORDER DATED 4/4/18 IN IA NO.62/18 IN OP(FC)). BY ADVS.SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE ## RESPONDENT(S): 1. SALIM A, AGED 43 YEARS,S/O.MYTHEENKUNJU,PUTHENVILA THEKKATHIL, (PINARUVILA),PALLISSERICKAL.P.O,SASTHAMCOTTA-690521. 2. SYAM.M.A, AGED 28 YEARS,BHARANIKKATTAYATHU,PALLILSSERICKAL.P.O, SASTHAMCOTTA-690521. 3. PALLISSSERICKAL MUSLIM JUMA-ATH, RETURNING OFFICER,ADVOCATE M.A.RASHEED, CITY LAW CHAMBERS,NEAR COLLECTORATE, KOLLAM-690521. 4. HANEEFA, AGED 54 YEARS,S/O.ABDUL KHADER KUNJU, THUNDIL THEKKATHIL,PALLISSERICKAL.P.O, SASTHAMCOTTA VILLAGE,KOLLAM-690521. |OP(WT) NO.62/17|OP(WT) NO.62/17|-2-| |---|---|---| |5.|ABDUL RAHIM,|| ||AGED 57 YEARS,S/O ABDUL RAHUMAN KUNJU,|| ||THAZHE KOTTUVILAYIL,PALLISSERICKAL.P.O,|| ||SASTHAMCOTTA-690521.|| |6.|ABDUL RAHIM,|| ||AGED 54 YEARS,S/O POOKUNJU,THAZHE,M.R.S.VILLA,|| ||PALLISSERICKAL.P.O,SASTHAMCOTTA-690521(PLAINTIFF)|| |7.|ADVOCATE A.SHANAVAS,|| ||AGED 55 YEARS,S/O.ASSANARUKUTTY,|| ||KUTTIYIL VEEDU,PALLISSERICKAL.P.O,|| ||SASTHAMCOTTA VILLAGE,KOLLAM-690521.|| |8.|NASSAR,|| ||AGED 55 YEARS,S/O HAMEEDKUTTY,SAFAYARIL,|| ||PALLISSERICKAL.P.O,SASTHAMCOTTA VILLAGE,|| ||KOLLAM-690521.|| |9.|KERALA STATE WAKF BOARD,|| ||KALOOR.P.O,KOCHI-17.|| |*ADDL.RESPONDENTS 10 TO 15 IMPLEADED||AS ADDL.RESPONDENT 10 TO 14 EXCEPT| |ADDL.RESPONDENT.11 WHO IS TRANSPOSED AS ADDL.3RD PETITIONER.||| |10.|AISHA KUNJU, W/O LATE MUHAMMED KUNJU K.,|| ||AGED 60, KALLATHUVILAYIL (PUTHENPURAYIL),|| ||PALLISSERICKAL PO, SASTHAMCOTTA 690521.|| |11.|SHAKEELA, W/O SHAJAHAN,|| ||MEDATHIL HOUSE, PALACKAL,|| ||THEVALAKKARA PO, KOLLAM.|| |11.|SALEENA, W/O SAKEER, KOTHETHA, PALACKAL,|| ||THEVALAKKARA PO, KOLLAM.|| |12.|SAJEEDA, W/O ASIR, PUTHENPURAYIL,|| ||PALLISSERICKAL, SASTHAMKOTTA.|| |14.|SAMEEDA, W/O ANSARI,|| ||KIDANGANAZHIKAM, KOOTTIKKADA PO,|| ||KOLLAM -20|| (*ADDL.RESPONDENTS 10 TO 15 IMPLEADED AS ADDL.R10 TO R14 AS PER ORDER IN IA NO.12/18 DATED 4.4.2018 EXCEPT R11 MENTIONED IN THE IA, WHO IS TRANSPOSED AS THE THIRD PETITIONER AS PER ORDER IN IA NO.62/18 DATED 4/4/18) R7 & 8 BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI R4,R5,R6 BY ADV. SRI.K.P.BALAGOPAL R9 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD THIS OP (WT) HAVING BEEN FINALLY HEARD ON 26-03-2018, ALONG WITH CRP (WAKF) NO.68/2018, THE COURT ON 04/04/2018 DELIVERED THE FOLLOWING: OP (WT).No. 62 of 2017 (R) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 COPY OF THE BYELAW PUBLISHED IN THE YEAR 2008 EXHIBIT P2 COPY OF THE COMMUNICATION DATED 20.09.17 FROM THE KERALA STATE WAKF BOARD STATING THAT THE BYELAW IS AVAILABLE IN ITS FILE EXHIBIT P3 COPY OF THE ORDER DATED 17.10.16 - EXHIBIT P4 COPY OF THE ORDER DATED 03.11.16 EXHIBIT P5 COPY OF THE PLAINT IN O.S.43/2016 - EXHIBIT P6 COPY OF THE WRITTEN STATEMENT IN RESPONDENTS 1 AND 2. EXHIBIT P7 COPY OF THE ELECTION NOTIFICATION DATED 25.02.2007 EXHIBIT P8 COPY OF THE ORDER DATED 29.08.2017 IN I.A.NO.8/17 IN O.S.43/16 APPOINTING ADVOCATE M.A.RASHEED AS COMMISSIONER - EXHIBIT P9 COPY OF THE NOTICE DATED 20.10.2017 PUBLISHED BY THE ADVOCATE COMMISSIONER EXHIBIT P10 COPY OF THE I.A.NO.536/17 FILED BY RESPONDENTS 1 AND 2. - EXHIBIT P11 COPY OF THE PETITIONR TO ADVANCE THE CASE - EXHIBIT P12 COPY OF THE ORDER DATED 27.10.2017 - EXHIBIT P13 A COPY OF THE B DIARY IN O.S.43/16 - EXHIBIT P14 COPY OF THE PLAINT IN O.S.6/17 - EXHIBIT P15 COPY OF THE APPLICATION FOR INTERIM INJUNCTION IN O.S.6/17. - Rp ## //TRUE COPY// PS TO JUDGE ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== OP(W.T.) No.62/2017 & CRP (Wakf) No. 68 of 2018 =============================== Dated this, the 4[th] day of April, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ Original petition as well as the CRP has been filed challenging Ext.P12 order [produced in OP(WT) No.62/17] by which the Wakf Tribunal has passed an order in IA No.536/2017 in OS No.43/2016 directing the returning officer to prepare separate voters' list of Jama ath members based on the voters' list to be prepared in terms of 1957 bye law and 2008 bye law and to conduct election in two separate ballet boxes and thereafter to produce the same before Court in sealed cover and further directing that the result of the election will be declared subject to the decision in the suit. 2. OS No.43/2016 has been filed seeking for a direction that the election of the Jama ath is to be conducted on the basis of the existing bye law. In the plaint, a copy of which is produced as Ext.P5, it is contended that the plaintiffs are the members of the first plaintiff Jama ath. The Jama ath had been registered with the OP(W.T.) No.62/2017 & CRP (Wakf) No. 68 of 2018 ## -:2:- Wakf Board and Jama ath is functioning pursuant to bye law approved and registered as Q 610/2008 (hereinafter referred to as the 2008 bye law). As per the bye law, the Committee is elected for a period of three years and the tenure of the committee expired on 1/6/2016. Though a General body was convened on 2/10/2016, on account of certain issues made by defendants 2 and 3, the meeting could not take place. Taking into account the aforesaid factual situation, the suit came to be filed seeking for a direction to conduct an election through an Advocate Commissioner and for other ancillary reliefs. 3. The 7[th] defendant in his written statement has taken a contention that the 1957 bye law still holds the field and that the 2008 bye law cannot be accepted. The defendant has also contended that the right of members to vote in the meeting as per 1957 bye law had been substantially reduced which is not conducive to the members of the Jama ath. It is also mentioned that a suit as OS No.6/17 had been filed for a declaration that the bye law of the Jama ath continues to be the 1957 bye law which is also pending consideration. 4. It is in the background of these facts that an application came to be filed which was disposed of as per the impugned OP(W.T.) No.62/2017 & CRP (Wakf) No. 68 of 2018 ## -:3:- order. 5. In the impugned order, the Tribunal has considered the respective contentions of the parties and has observed that in the 1957 bye law and the 2008 bye law, there is substantial difference in the number of members to exercise their franchise. It is in the said circumstances that the impugned order had been passed. 6. Heard the learned counsel appearing on either side. 7. The learned counsel for the petitioners had brought to the notice of this Court judgment of the Apex Court in _**Supreme Court Bar Association v. B.D.Kaushik**_ [(2011) 13 SCC 774]. The proposition in the above judgment is that the Courts normally do not interfere with the internal management of an association. Said matters are to be decided by the association and its members. It shall be open for them to frame a particular bye law, rule or regulation which may provide for eligibility and or qualification for the membership or any limitations thereof, exercise of right by and as a member of the said association. 8. Yet another judgment relied upon is _**Zoroastrian Cooperative Housing Society Ltd. and another v. District Registrar, Cooperative Societies (Urban) and others**_ OP(W.T.) No.62/2017 & CRP (Wakf) No. 68 of 2018 ## -:4:- [(2005) 5 SCC 632]. In that case, the Apex Court had explained the principles relating to formation of co-operative societies especially voluntary associations. We do not think it necessary to go into the details of the judgments relied upon at this stage of the proceedings. 9. Learned counsel for the petitioners and revision petitioner submits that the 2008 bye law had been framed based on the decision taken in a General Body of the members of the Jama ath and elections were being held to the Jama ath Committee based on the said bye law during the last several years after the said bye law had been framed. Under such circumstance, merely for the reason that there is a challenge by certain faction of the members to the 2008 bye law, until their legal rights are established and the bye law is found to be against any statutory provision or is illegal in any manner, it was not proper on the part of the Tribunal to have directed two separate elections to be conducted based on both the bye laws and the result be kept in abeyance till the disposal of the suit. 10. On the other hand, learned counsel appearing for the contesting respondents contended that petitioners are not party to the proceedings and therefore they are not entitled to OP(W.T.) No.62/2017 & CRP (Wakf) No. 68 of 2018 -:5:- challenge the impugned order. In fact OP (WT) No.62/17 was filed by two persons who were respondents 6 and 7 in IA No.536/2017 and Revision Petition has been filed by son of the Secretary, who was a party to the suit. It is stated that he had already filed an application to implead before the Court below which is pending consideration. 11. In so far as any person aggrieved can prefer a revision before this Court and an original petition is also filed by the parties, we do not think that the case has to be dismissed on the ground of _locus standi_ . 12. Coming to the merits of the contentions, learned counsel for the respondents contended that the members of Jama ath, who were aged 18 years and above were given voting rights as per the 1957 bye law whereas as per the present bye law, such rights had been restricted and only the senior most male member of a family can exercise franchise. 13. We do not think it necessary for us to go into the merits of the contentions raised especially when the suit is pending. What is to be considered is whether the Tribunal was justified in directing two sets of election and to keep in abeyance the declaration of the election results until the suit is finally decided. OP(W.T.) No.62/2017 & CRP (Wakf) No. 68 of 2018 ## -:6:- 14. It is brought to the notice of this Court that already two elections had been held on the basis of 2008 bye law. The bye law is being challenged only after several years and that too after creating an obstruction during a meeting and it is the former managing committee who had come forward to prefer a suit seeking for directions to conduct the election on the basis of 2008 bye law. That apart, another suit has been filed only in the year 2017 for a declaration that the 1957 bye law remains in force. 15. _Prima facie_ , we are of the view that when two elections have already been held based on the 2008 bye law and the managing committee has been continuing without an election since 2016, it is only appropriate that an election be conducted based on 2008 bye law. Of course, the continuance of the committee elected based on the said election would depend upon the final result of the suit. We are of the view that directing an election to be conducted based on the 1957 bye law as well as 2008 bye law at this point of time may create unrest among the members of the Jama ath and it is only appropriate that a reasonable approach is taken in the matter. 16. In the said circumstances, we are of the view that the impugned order requires modification. OP(W.T.) No.62/2017 & CRP (Wakf) No. 68 of 2018 -:7:- Accordingly, OP(W.T.) No.62/17 and CRP (Wakf) 68/2018 are disposed of as under:- (i) Impugned order dated 28/10/2017 in IA No.536/17 in OS No.43/2016 is hereby set aside and the following directions are issued:- (a) The Returning officer shall conduct election after preparing a voters' list based on the 2008 bye law and the election should be held complying with the terms of the said bye law. (b) That the elected committee shall be entitled to continue in office, which of course will be subject to the final outcome of the suit pending before the Tribunal. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge