T. H. Navas v. Kerala State Wakf Board & Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 WP(C) NO. 30215 OF 2022 ``` ## **`PETITIONER:`** ``` T.H. NAVAS, AGED 58 YEARS, S/O. HASSAN, RESIDING AT PURAKKALOTH HOUSE, P.C. CROSS ROAD, VYTILLA, ERNAKULAM DISTRICT, PIN - 682019 BY ADVS. P.CHANDRASEKHAR ANAND SANKAR ``` ## **`RESPONDENTS:`** ``` 1KERALA STATE WAQF BOARD, VIP ROAD, KALOOR, KOCHI 682017, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN - 682017 2ILFATHUL ISLAM SANGAM (PONNURUNNI JAMA ATH) PALARIVATTOM P.O., KOCHI 682025, EMAKULAM DISTRICT, REPRESENTED BY ITS INTERIM MUTHAVALLI ADV.P.K.IBRAHIM, PIN - 682025 3ADV.P.K. IBRAHIM RETURNING OFFICER, ILFATHUL ISLAM SANGAM (PONNURUNNI JAMA ATH), PALARIVATTOM P.O., KOCHI 682025, ERNAKULAM DISTRICT., PIN - 682025 4ABDUL MANAF V.A., VALIYAVEETIL HOUSE, PUTHIYA ROAD, PALARIVATTOM, KOCHI, 682025, COMMISSION CO- ORDINATOR ESI, EPF ENQUIRY COMMISSION OF ILFATHUL ISLAM SANGAM, PIN - 682025 SRI JAMSHEED HAFIZ - STANDING COUNSEL- KERALA STATE WAKF BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C).No.30215 of 2022 ## **J U D G M E N T** The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging his disqualification and expulsion from the 2[nd] respondent-Ilfathul Islam Sangam (Ponnurunni Jama Ath) Administrative Committee as per Ext.P1 communication dated 21.03.2021. 2. According to the petitioner, the 2[nd] respondent took the decision as per Ext.P1 disqualifying him from the Managing Committee of the said Jama Ath and excommunicating him stating the reason that he had cheated the Jama Ath and did not pay Rs.9,00,000/- towards PF arrears in connection with the functioning of a School. The petitioner would contend that he had paid the entire monthly contribution upto 31.12.2022 and that no amount is due from the petitioner to the 2[nd] respondent towards EPF/ESI contribution. A suit instituted by the petitioner before the Munsiff’s Court, Ernakulam as O.S.No.353 of 2021 is said to have been returned by the said court on 20.07.2022 stating that the said court has no jurisdiction to entertain that suit. The petitioner and other members of the Jama Ath are also said to have filed O.P.No.88 of 2021 before the first respondent Wakf Board to declare all decisions taken by the 2nd respondent Jama Ath after 27.12.2020 as illegal 3 W.P.(C).No.30215 of 2022 and void. The above petition is said to have been finally disposed of by the first respondent as per Ext.P5 order dated 07.04.2022 by appointing the 3[rd] respondent as Interim Muthavalli cum Returning Officer. The former Secretary and Managing Committee members of the 2[nd] respondent challenged Ext.P5 order before this Court by filing W.P.(C) No.14257 of 2022 which was disposed of vide Ext.P6 judgment dated 30.06.2022 appointing Adv.Mrs.Amrin Fathima and Adv.Mrs.Shaniba T.T as Commissioners to assist the 3[rd] respondent in the preparation and finalisation of voters list and for the peaceful conduct of election to the 2[nd] respondent Jama Ath with the direction that the election has to be completed within eight weeks from the date of Ext.P6 judgment. Thereafter, the nomination submitted by the petitioner to contest the election to the Managing Committee of the 2[nd] respondent is said to have been rejected on the basis of an objection raised by the 4[th] respondent, a member of the 2[nd] respondent Jama Ath. The Returning Officer allegedly rejected the nomination of the petitioner on the ground that the General Body of the 2[nd] respondent Jama Ath had disqualified the petitioner, and that the petition filed by the petitioner before the 1[st] respondent as O.P.No.88 of 2021 was dismissed vide Ext.P5 order. As per Ext.P7 proceedings dated 20.09.2022 of the 3[rd] respondent in connection with the scrutiny of the nominations for the election to the Managing 4 W.P.(C).No.30215 of 2022 Committee of the 2[nd] respondent, the nomination of the petitioner was rejected for the reason that he incurred pecuniary liability in connection with the default in payment of PF and ESI, and that the General Body of the 2[nd] respondent had disqualified the petitioner. It is also stated thereunder that O.P.No.88 of 2021 filed by the petitioner against the above decision of the General Body, had been dismissed by the 1[st] respondent. 3. The petitioner challenges his excommunication and expulsion from the 2[nd] respondent Jama Ath by virtue of Ext.P1, and contends that Ext.P7 proceedings of the 3[rd] respondent rejecting his nomination for the election to the Managing Committee of the 2[nd] respondent Jama Ath Committee, is also vitiated by illegality. Thus, he seeks a declaration that Ext.P1 and P7 decisions are null and void and not liable to be implemented. The petitioner also seeks a writ of mandamus directing the 1[st] respondent to consider the question of validity of Ext.P1 and to take a decision thereon without delay, and a further direction to respondents 1 and 3 to postpone the election to Ward No.4 of the 2[nd] respondent Jama Ath till the validity of Ext.P1 is considered and decided by the 1[st] respondent. 4. Despite service of notice, respondents 2 to 4 did not appear or contest the proceedings. 5 W.P.(C).No.30215 of 2022 5. The learned Standing Counsel for Kerala State Wakf Board appeared for the 1[st] respondent. 6. Heard the learned counsel for the petitioner and the learned Standing Counsel who represented the 1[st] respondent. 7. As regards the prayer challenging Ext.P7 decision of the 3[rd] respondent, rejecting the nomination of the petitioner for the election to the Managing Committee of the 2[nd] respondent Jama Ath scheduled to 25.09.2022, and disqualifying him from contesting the said election, it is pointed out by the learned Standing Counsel for the 1[st] respondent that the said relief sought for in this writ petition has become infructuous since the said election was already over. It is also pointed out by the learned Standing Counsel for the 1[st] respondent that the dispute pertaining to the pecuniary liability incurred by the petitioner with the 2[nd] respondent in connection with the default in remittance of provident fund and ESI amount, cannot be adjudicated in the instant case instituted under Article 226 of the Constitution of India. 8. There is substance in the above argument advanced by the learned Standing Counsel for the 1[st] respondent. It is seen from Ext.P7 proceedings that the nomination of the petitioner to the election to the Managing Committee of the 2[nd] respondent scheduled 6 W.P.(C).No.30215 of 2022 to 25.09.2022 was rejected for the reason that he incurred pecuniary liability with the 2[nd] respondent in connection with the default in payment of provident fund and ESI amount and that the General Body of the 2[nd] respondent Jama Ath had disqualified him for acting against the rules and regulations of the Jama Ath and instituting O.P.No.88 of 2021 against the General Body decision of the 2[nd] respondent. 9. Among the above reasons stated by the 3[rd] respondent in Ext.P7 for disqualifying the petitioner from contesting the election to the Managing Committee of the 2[nd] respondent-Jama Ath, the issue relating to the default in the payment of provident fund and ESI amount, cannot be dealt with in this proceedings. Obviously, for the said reason, it is not possible for this Court to adjudicate whether the rejection of nomination of the petitioner for the election of the Managing Committee of the 2[nd] respondent scheduled to 25.09.2022, was justified or not. However, the decision of the 2[nd] respondent resorting to life-long expulsion of the petitioner from the 2[nd] respondent-Jama Ath, is liable to be interfered with, to the extent to which it would amount to an externment, excommunication or ‘Ooruvilakku’, which is _per se_ illegal. 10. It has been held by a Division Bench of this Court in ## **Kassim P. V. v. Kakkattiri Juma Masjid Mahallu Committee** 7 W.P.(C).No.30215 of 2022 **and Others [2022 (1) KHC 330]** that Ooruvilakku, externment and excommunication either express/declared or implied/undeclared, are illegal, as these powers are not traceable from the letter and spirit of the Wakf Act. It was further observed in the said decision that any provision in the bye-law or scheme in relation to administration of a Jama Ath or Wakf property authorizing Ooruvilakku, externment and excommunication are also illegal, since the same would infringe the fundamental rights guaranteed by the Constitution of India. 11. Having regard to the above settled position of law, proscribing declared or undeclared excommunication and externment from the Society, Ext.P1 decision of the 2[nd] respondent is liable to be interfered with, to the extent to which it amounted to life-long disqualification of the petitioner from the 2[nd] respondentJama Ath Committee. However, the decision in this regard would no way affect the right of the 2[nd] respondent to initiate and prosecute appropriate proceedings, as per law, against the petitioner in connection with the alleged default on the part of the petitioner in making remittance of provident fund and ESI amount. 12. In the result, this Writ Petition is disposed of, interdicting Ext.P1 decision of the 2[nd] respondent, to the extent to which it 8 W.P.(C).No.30215 of 2022 amounted to permanent disqualification and externment of the petitioner from the 2[nd] respondent-Jama Ath Committee. However, it is made clear that this order would no way affect the right and authority of the 2[nd] respondent to initiate and prosecute appropriate proceedings for the realisation of any amount, if found to be due from the petitioner under any account. **==> picture [44 x 14] intentionally omitted <==** (sd/-) **G. GIRISH, JUDGE** jsr/vgd 9 W.P.(C).No.30215 of 2022 ``` APPENDIX OF WP(C) 30215/2022 ``` ``` PETITIONER’S EXHIBITS ``` ``` Exhibit P1TRUE COPY OF LETTER DATED 21-03-2021 OF PRESIDENT OF PONNURUNNI JAMA ATH PALARIVATTOM Exhibit TRUE ENGLISH TRANSLATION OF EXHIBIT P1 P1(a) ``` ``` Exhibit P2TRUE COPY OF THE RECEIPT DATED 08-09-2022 ISSUED BY THE OFFICE OF ILFATHUL ISLAM SANGAM (JAMA ATH COMMITTEE) ``` ``` Exhibit ENGLISH TRANSLATION OF EXHIBIT P2 P2(a) ``` ``` Exhibit P3TRUE COPY OF THE PLAINT IN OS NO.353/2021,MUNSIFF COURT ERNAKULAM ``` ``` Exhibit P4TRUE COPY OF OP NO.88/2021 OF THE PETITIONER BEFORE THE KERALA STATE WAQF BOARD Exhibit P5TRUE COPY OF THE ORDER DATED 07-04-2022 IN OP NO. 88/2021 OF THE KERALA STATE WAQF BOARD Exhibit P6TRUE COPY OF THE JUDGMENT DATED 30-06-2022 IN WP(C) NO.14257 OF 2022 OF THIS HON'BLE COURT Exhibit P7TRUE COPY OF THE ORDER DATED 20-09-2022 OF RETURNING OFFICER ``` ``` Exhibit ENGLISH TRANSLATION OF EXHIBIT P7 P7(a) ``` ``` Exhibit P8TRUE COPY OF THE ORDER DATED 14-12-2021 IN CRE (WAQF) NO.442/2016 OF THIS HON'BLE COURT ```