P. M. Abdulla Haji v. District Registrar, Kasaragode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** ## **WP(C).No. 1053 of 2019** ## **PETITIONER/S:** **P.M.ABDULLA HAJI AGED 50 YEARS S/O.MUHAMMED POYYAYIL, SECRETARY, NECHIPADAPPU MOHIYUDHEEN PALLI COMMITTEE, REGN. NO.230/2012, P.O. ALAMPAD, KASARAGODE DISTRICT.** **BY ADV. SRI.R.RAMADAS** ## **RESPONDENT/S:** **1 THE DISTRICT REGISTRAR KASARAGODE, OFFICE OF THE DISTRICT REGISTRAR, CIVIL STATION, KASARAGODE, PIN-671123. 2 ABOOBACKER B.A., S/O.ABDULLA, NECHIPADUPPA, ALAMPADI P.O., KASARAGODE DISTRICT, PIN-671123.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER FOR R1, SRI.K.M.FIROZ FOR R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 1053 of 2019 ================== Dated this the 18[th] day of January, 2019 ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“a) Call for the records of the case leading upto Ext.P-7 and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction._ - _b) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to reconsider Ext.P-7 by conducting fresh hearing in the matter with due notice to the petitioner herein._ - _c) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to keep in abeyance Ext.P-7 order till a fresh decision is taken in the matter after hearing the petitioner regarding the list of members submitted by the petitioner for the period 2018-19._ - _and_ - _d) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.”_ 2. Heard Sri.R.Ramadas, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for R-1 District Registrar and Sri.K.M.Feroz, learned counsel appearing for contesting respondent No.2. 3. According to the petitioner, he is the duly elected Secretary of Nechipaduppu Mohiyudheen Palli Committee, a society registered under the Societies Registration Act, 1860, with registration No.230/2012. Further that the election to the said Palli committee was conducted as per the registered bye-laws of the year W.P.(C).1053/19 - : 3 :- 2018-19 and thereafter, to comply with the mandate of Sec.4 of the abovesaid Act, the list of members of the elected committee and its office bearers has been submitted by the petitioner before the 1[st] respondent District Registrar (notified Registrar under the abovesaid Act) on 10.8.2018, which is discernible from Ext.P-1 certificate dated 10.2.2018 issued by the 1[st] respondent District Registrar. That subsequently, contesting respondent No.2 herein had submitted another rival list of members before the 1[st] respondent claiming that he is the duly elected Secretary of the said society, but the 1[st] respondent had refused to accept the said list submitted by the 2[nd] respondent for the period 2018-19, as the list of members of the society for the period 2018-19 as duly filed by the petitioner was already taken on record and acted upon by the 1[st] respondent. That the 2[nd] respondent, without disclosing the said material fact that the list of office bearers submitted by the petitioner was already accepted and acted upon by the 1[st] respondent, had approached this Court by filing W.P.(C).No.31753/2018 claiming that he is the Secretary of the society and praying that direction should be given to the 1[st] respondent to act upon the list of members of the committee filed by him and also for a direction to 1[st] respondent to consider and take decision on the representation filed by him as per Ext.P-3 therein. W.P.(C).1053/19 - : 4 :- When the matter was taken up for consideration on 28.9.2018, this Court had dispensed with issuance of notice to contesting respondent No.3 therein (the petitioner herein) as the limited relief that was sought for by the petitioner therein was only for a direction to the 1[st] respondent to consider the request in Ext.P-3 therein and to pass orders thereon after hearing the rival parties concerned. The learned Government Pleader had specifically submitted on behalf of the 1[st] respondent during the disposal of that Writ Petition that the list of members of the committee submitted by the 3[rd] respondent therein (the petitioner herein) has already been accepted by the District Registrar and then he will not have jurisdiction to go into the merits any further in respect of the grievance projected by the petitioner therein (R-2 herein) and the remedy of the petitioner therein/R-2 herein would be then to approach the competent civil court concerned, etc. 4. This Court without getting into the merits of the controversy had only directed the respondent District Registrar to afford reasonable opportunity of being heard to the petitioner therein/R-2 herein and the 3[rd] respondent therein (petitioner herein) and then to pass orders on the representation as per Ext.P-3 therein in accordance with law. Since the direction was issued without W.P.(C).1053/19 - : 5 :- touching the merits of the controversy in any manner and as it had only directed the 2[nd] respondent therein to hear both sides and then to pass orders on the said representation in accordance with law, this Court deemed it appropriate that there is no necessity to issue notice to contesting respondent No.3 therein, as none of the matters affecting the merits of the matter was touched or commented upon by this Court in the said judgment. 5. Pursuant to the directions issued by this Court in Ext.P-3 judgment in W.P.(C).No.31753/2018, it appears that the 1[st] respondent District Registrar had issued notice of personal hearing to the 2[nd] respondent herein as well as the petitioner herein and hearing was fixed on 21.11.2018. That since the 3[rd] respondent happened to be the President of the said society and as he had to urgently attend to the case listed on the same day before the Wakf Tribunal, he was not in a position to personally attend the hearing before the 1[st] respondent and had duly authorised the petitioner herein, who is the Secretary of the said society. The petitioner herein in his capacity as the Secretary had appeared before the 1[st] respondent on 21.11.2018 and that according to him, he had made submissions on behalf of the society, but the 1[st] respondent took the stand that he will have to personally hear the 3[rd] respondent in Ext.P-3 W.P.(C)., who has W.P.(C).1053/19 - : 6 :- claimed to be the President of the said society. Then the petitioner had informed that the matter may be suitably adjourned so that the said President could personally attend in the personal hearing. The 1[st] respondent had not informed the petitioner as to the next posting date when the matter will be taken on the next occasion. Thereafter, it appears that the 1[st] respondent had issued Ext.P-5 notice dated 24.11.2018 directing the President of the society to personally appear on 28.11.2018. The specific case of the petitioner is that the said Ext.P-5 notice sent by registered post was received only on 30.11.2018, as evident from Ext.P-6 letter dated 5.12.2018 issued by the post master concerned. In those circumstances, the said person was not in a position to personally attend the hearing and the 1[st] respondent has unilaterally taken a decision without hearing the said President and based on the versions submitted by the 2[nd] respondent, the 1[st] respondent has passed Ext.P-7 order dated 30.11.2018 that his previous action in accepting the list submitted by the petitioner on 10.8.2018 will stand cancelled and that the rival list submitted by the 2[nd] respondent regarding the list of members of the committee and the office bearers has been accepted. It is this order at Ext.P-7 that is under challenge. 6. The learned Senior Govt. Pleader was specifically W.P.(C).1053/19 - : 7 :- requested to get instructions as to whether the petitioner had personally appeared on 21.11.2018 and has sought for an adornment and as to whether the next posting date was informed to him then and about the service of notice as per Ext.P-5, etc. Now it appears that the petitioner had actually appeared before the 1[st] respondent on 21.11.2018 and the 1[st] respondent had insisted that he can hear the person who claims to be the President of that faction, etc. This Court has no hesitation to hold that when the party concerned had duly authorised the petitioner as the Secretary of the society to personally appear and to make submissions before the 1[st] respondent, he was then obliged to have heard the petitioner as the authorised representative of the President, as well as the 2[nd] respondent herein and then should have taken a considered decision. On the other hand, the 2[nd] respondent insisted that he should necessarily hear the person who claims to be the President. If that be so, at least the next posting date should have been informed to the petitioner. Even that was not done. On the other hand, Ext.P-5 notice 24.11.2018 was sent by the 1[st] respondent by registered post, which evidently was received by the petitioner only on 30.11.2018 as evident from Ext.P-6 letter dated 5.12.2018 issued by the post office concerned. In view of the delayed receipt of notice, it was impossible for the person concerned to have W.P.(C).1053/19 - : 8 :- attended personal hearing, which was scheduled on 28.11.2018. In these circumstances, there has been flagrant violation of principles of natural justice and fairness. In this regard, this Court has to observe that specific submission was made on behalf of the 1[st] respondent as recorded in Ext.P-3 judgment that in case the list submitted by the 3[rd] respondent therein had already been accepted by the 1[st] respondent, then the 1[st] respondent will not have jurisdiction to examine the present controversy and in such a case, an aggrieved person like the petitioner therein/2[nd] respondent herein should approach the civil court. This submission was made on behalf of the 1[st] respondent on the basis of the legal principles laid down by a Division Bench of this Court in _**C.M.Z.Musliar v. Aboobacker**_ reported in 1998(1) KLT 136 (D.B) para 10, which was affirmed by the Apex Court in the decision in _**A.P.Aboobacker Musaliar v. District Registrar (G)**_ , reported in 2004 (11) SCC 247. 7. It is pointed out by Sri.K.M.Ferose, learned counsel appearing for the 2[nd] respondent that after the rendering of Ext.P-3 judgment by this Court on 28.9.2018, the 2[nd] respondent herein had filed a civil suit as O.S.No.75/2018 before the Wakf Tribunal, Kozhikode, wherein the petitioner and other persons in his faction have been arrayed as defendants and the relief sought in the said suit W.P.(C).1053/19 - : 9 :- is for grant of injunction to injunct the defendants therein from managing the affairs of the abovesaid Palli committee (society). 8. It is pointed out by Sri.R.Ramadas, learned counsel appearing for the petitioner that so far the Wakf Tribunal has not passed any interim orders on the application filed by the 2[nd] respondent herein, and further that since none other than the 2[nd] respondent himself had filed a civil suit and that too, after rendering of Ext.P-3 judgment on 28.9.2018, then the said matter should have been duly brought to the notice of the 1[st] respondent and then in the light of the submission made on his behalf, as reflected in Ext.P-3 judgment and in the light of the legal principles laid down by the Division Bench of this Court in _**C.M.Z.Musliar v. Aboobacker**_ reported in 1998(1) KLT 136 (D.B) and that of the Apex Court in _**A.P.Aboobacker Musaliar v. District Registrar (G)**_ , reported in 2004 (11) SCC 247, it was incumbent on the 1[st] respondent to have totally desisted from interfering with the matter after having accepted the list of the petitioner and should have relegated the parties to seek appropriate orders from the civil court. 9. This Court need not examine the above aspects of the matter and it is for the parties to present these aspects before the 1[st] respondent appropriately. W.P.(C).1053/19 - : 10 :- 10. Without getting into the merits of the controversy in any manner, it is only to be held that the impugned Ext.P-7 proceedings is vitiated by violation of principles of natural justice and procedural fairness. On that count alone, the impugned order is liable to be interdicted. Accordingly, it is ordered that the impugned Ext.P-7 proceedings will stand set aside and all consequential actions done in pursuance of Ext.P-7 will also stand cancelled and rescinded. Consequentially, it is ordered that the representation of the 2[nd] respondent herein as per Ext.P-3 as produced in W.P.(C).31753/2018 will stand remitted to the 1[st] respondent for consideration afresh and for decision to be rendered in accordance with law, after hearing the petitioner and the 2[nd] respondent. In that regard it is made clear that there is no necessity for the 1[st] respondent to insist that the person, who claims to be the president/R-3 in Ext.P-3 W.P.(C)., should necessarily appear for personal hearing and if the petitioner, who claims to be the Secretary of the said society, is duly authorised, then certainly he can attend the personal hearing and make necessary submissions in the matter. Orders in this regard should be duly passed by the 1[st] respondent without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. Needless to say, the state of affairs that existed W.P.(C).1053/19 - : 11 :- immediately prior to the passing of Ext.P-7 proceedings will continue until orders are passed by the 1[st] respondent as directed herein above. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C).1053/19 - : 12 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 10/8/2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE LIST OF MEMBERS OF THE NECHIPADUPPU MOHIYUDHEEN PALLI COMMITTEE FOR THE PERIOD 2018-19** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 28/9/2018 IN WP(C) NO.31753/2018 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 21/11/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 24/11/2018 ISSUED BY THE 1ST RESPONDENT TO THE PRESIDENT A.M.ABOOBACKER, S/O.MAHIN KUNJU.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 5/12/2018 ISSUED BY THE POSTMASTER, ALAMPADI RECEIVED BY THE PRESIDENT A.M.ABOOBACKER.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30/11/2018 ISSUED BY THE 1ST RESPONDENT.**