Shanavas M. v. Kanniyakulangara Muslim Jama-ath and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** # **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** **WP(C).No.16338 of 2019** **PETITIONER:** **SHANAVAS M.,S/O.MOHAMMED KUNJU, THENGUVILAYAIL,KANYAKULANGARA, VEMBAYAM.P.O., THIRUVANANTHAPURAM DISTRICT,PIN:695 615** **BY ADV. SRI.K.P.SUJESH KUMAR** ## **RESPONDENTS:** - **1 KANNIAKULANGARA MUSLIM JAMA-ATH KANNIAKULANGARA, VEMBAYAM P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT,PIN-695 615, REPRESENTED BY ITS SECRETARY.** - **2 KERALA STATE WAQF BOARD, ERNAKULAM, PIN-682 017, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.** - **3 WAQF BOARD,DIVISIONAL OFFICE, ARTLEE COMFORT, NALANDA ROAD, P.M.G., VIKASBHAVAN P.O., THIRUVANANTHAPURAM,PIN:695 033, REPRESENTED BY ITS DIVISIONAL OFFICER.** - **4 KHALEEL KOYA THANGAL, S/O. FAKHARUDHEEN KOYA HANGAL, SYED BUNGLOW, KANNIAKULANGARA,VEMBAYAM P.O., THIRUVANANTHAPURAM DISTRICT,PIN:695 615.** WP(C) No.16338 of 2019 2 **5 A.YOUSUF,SHEEJA NIVAS, KANNIAKULANGARA, VEMBAYAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN:695 615** **R1 BY ADV.SRI.M.R.SASITH R4 & R5 BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB R2 & R3 BY ADV.SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.16338 of 2019 3 ## **A.HARIPRASAD & SHIRCY V., JJ.** **-------------------------------------W.P.(C) No.16338 of 2019 -------------------------------------Dated this the 19[th] day of July, 2019** ## **JUDGMENT** ## **Hariprasad, J.** Heard the learned counsel for the petitioner and respondents 1, 4 and 5. Learned Standing Counsel appearing for respondents 2 and 3 is also heard. 2. Writ petitioner has approached this Court seeking the following reliefs: _“(i) issue a writ of certiorari or any other appropriate writ, direction or order calling upon the records leading to Exhibits P7 order issued by the second respondent and quashing the same_ _(ii) issue such other further reliefs as this Honourable Court deem fit and proper to grant in the circumstances of the case.”_ 3. Petitioner is a member and beneficiary of 1[st] respondent Jamaath and interested in its welfare. Ext.R4(e) is the bye-law governing the Jama-ath. As per Clause 9(ii) of Ext.R4(e), the term of elected committee is three years from 1[st] April of every three years. It is the case the petitioner that on 31.03.2018, the tenure of the earlier committee expired and without WP(C) No.16338 of 2019 4 complying with formalities in the bye-law, especially the provisions in Clause 10, a mock election was conducted and some persons claimed to have been elected. They attempted to assume management of the waqf. It is seen that two suits are pending before the Waqf Tribunal (Exts.P1 and P3). Ext.P2 interim order passed in Ext.P1 suit shows that any election to the waqf will be subject to the decision of the Tribunal. 4. Ext.P7 impugned order is passed by the Waqf Board on 18.05.2019. As per Ext.P7, as directed by this Court in W.P.(C) No.42477 of 2018, a Returning Officer was appointed for conducting the election to the 1[st] respondent as per bye-law and he started functioning. 5. It is seen from the counter affidavit filed by the Waqf Board that the Returning Officer has prepared a voters list. The steps taken by the Returning Officer are narrated in paragraphs 4 to 6 of the counter affidavit. Paragraphs 4 to 6 read as follows: _“4. It is humbly submitted that the Returning Officer has submitted a report dated 26.06.2019 before these respondents. A true copy of the same is produced and marked as Exhibit.R2(A). In the said report, it is stated that, he had taken charge in the waqf on 07.06.2019 after giving proper notice to concerned waqf. He had also submitted that, even though as per bye-law it is the duty of the Managing Committee of the waqf to prepare the Voter's list as they had not prepared the same and also there exist some disputes between the_ WP(C) No.16338 of 2019 5 _members of the jama ath, the Returning Officer himself had prepared the voters list._ _5. It is also submitted that the Returning Officer had prepared and published the election notification dated 13.06.2019 and also provided time for receiving objections and for entering of new names in the draft voters list on 18.06.2019 and 19.06.2019._ _6. It is further submitted that the Returning Officer had completed all the necessary procedure for completing the election and the said election was scheduled on 07.07.2019. It is also submitted that, all the actions taken by these respondents are in accordance with the direction of this Hon'ble Court in WPC 42477/18. Further, the undue delay in the conduct of election will adversely affect the situation in the waqf.”_ 6. On hearing the learned counsel appearing for all the parties, we understand that everyone wanted a free and fair election to the 1[st] respondent. It is asserted by the learned counsel for the petitioner and respondents 4 and 5 that the present persons in management of 1[st] respondent were not properly elected and, therefore, a change in the management is required. Having regard to this submission, we find no reason to interfere in the Waqf Board proceedings. In this regard, learned counsel for respondents 4 and 5 relied on two Division Bench decisions of WP(C) No.16338 of 2019 6 this Court in **Rasheed A.P.A. v. N.N.Khalid Haji and another (2011 (3) KHC 379)** and **Abdul Latheef C.K. and others v. Adv. K.M.Haneefa and others (2015(3) KHC 844)** , which would fortify our reasoning that the Waqf Board is competent to take appropriate measures for a free and fair election. We find no infirmity in Ext.P7 order. Therefore, the prayer to quash Ext.P7 order cannot be allowed as the Waqf Board has correctly initiated the legal proceedings in this matter. However, it is made clear that all the parties interested in the welfare of the 1[st] respondent Jama-ath are free to participate in the election and the Returning Officer will publish another date, in accordance with the bye-law, for conducting the election. Returning Officer shall ensure a free and fair election. It is made clear that the election said to have been held on 31.03.2018 will have no legal effect. 7. After dictating the judgment in open court on 18.07.2019, but before signing it, at the request of the learned counsel for the petitioner, we posted the matter to be spoken to on 19.7.2019. The request made by the learned counsel for the petitioner to withdraw the writ petition is stoutly opposed by the learned counsel for the respondents. We also do not deem it fit to grant a permission to the petitioner to withdraw the writ petition. Then, the learned counsel for the petitioner sought indulgence of this Court to appoint an Observer at the time of election. As per the judgment in W.P. (C) No. 42477 of 2018, a Returning Officer was appointed and he has taken steps to take the election forward. The election has to happen on a date as notified in accordance with the bye-law. To alleviate the apprehension in the WP(C) No.16338 of 2019 7 minds of all the parties, it is appropriate that an independent Observer shall oversee the election process to ensure a free and fair election. Adv. Abdul Raoof Pallipath is appointed as Observer. The Returning Officer shall intimate the date of election well in advance to the Observer so that he can be present on the date of election and oversee conduct of the election. A sum of Rs.25,000/- shall be paid by the first respondent Committee to the Observer as remuneration. The writ petition is disposed of accordingly. All pending interlocutory applications will stand closed. **A.HARIPRASAD, JUDGE.** **SHIRCY V., JUDGE.** ## **cks** WP(C) No.16338 of 2019 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE PLAINT IN O.S.NO 2/2018 ON THE FILE OR THE WAQF TRIBUNAL, KOLLAM DATED 20.03.2018** **EXHIBIT P2** - **TRUE COPY OF THE INTERIM ORDER PASSED BY THE WAQF TRIBUNAL, KOLLAM IN IA NO.70/2018IN O.S.NO 2/2018 ON THE FILE OF THE WAQF TRIBUNAL, KOLLAM DATED 20.03.2018** - **EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S.NO 34/2018 ON THE FILE OR THE WAQF TRIBUNAL, KOLLAM DATED 28.07.2018** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY RESPONDENTS 4 AND 5 BEFORE THE SECOND RESPONDENT, DATED 31/10/2018** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO.424767/2018 ON THE FILE OF THIS HONOURABLE COURT, DATED 3/01/2019** - **EXHIBIT P6 TRUE COPY OF THE OBJECTION SUBMITTED BY THE FIRST RESPONDENT BEFORE THE THIRD RESPONDENT,DATED 2/06/2019** - **EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT,DATED 18/05/2019** - **EXHIBIT P8 TRUE COPY OF THE NOTICE ISSUED BY THE Returning Officer, DATED 4.06.2019.** - **EXHIBIT P9 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE SECOND RESPONDENT IN WOS NO.314/2019 ON THE FILE OF THE WAQF TRIBUNAL, KOZHIKODE, DATED 15.5.2019.** **RESPONDENTS' EXHIBITS:** **EXT.R2(A) TRUE COPY OF REPORT OF RETURNING OFFICER DATED 29/6/2019** **EXT.R4(a) TRUE COPY OF THE COMMUNICATION DATED 27/02/2019 ISSUED BY THE 3RD RESPONDENT** WP(C) No.16338 of 2019 9 **EXT.R4(b) TRUE COPY OF THE PROCEEDINGS DATED 18/05/2019 ISSUED BY THE 3RD RESPONDENT** **EXT.R4(c) TRUE COPY OF THE ELECTION NOTIFICATION DATED 13/06/2019 ISSUED BY THE Returning Officer** **EXT.R4(d) TRUE COPY OF THE NOTICE DATED 14/06/2019 ISSUED BY THE Returning Officer** **EXT.R4(e) TRUE COPY OF THE BYE LAW OF THE 1ST RESPONDENT.** WP(C) No.16338 of 2019 10