W.P.(C) Nos. 37111 & 37175 of 2022 — Thahira Beevi v. State of Kerala & Ors; Manzar A. v. State of Kerala & Ors

W.P.(C) Nos. 37111 & 37175 of 2022 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ## WP(C) NO. 37111 OF 2022 ## PETITIONER/S: THAHIRA BEEVI AGED 67 YEARS W/O MOHAMMED ELIYAS ELIYAS MANZIL KATTUMURAKKAL MUDAPURAM PO, CHIRANYINKEEZHU THIRUVANANTHAPURAM -, PIN – 695 304. BY ADV NABIL KHADER ## RESPONDENT/S: - 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-, PIN – 695 001. - 2 KATTUMURAKKAL MUSLIM JAMA-ATH MADAPPURAM PO, CHIRYAYINKEEZHU THIRUVANANTHAPURAM - REPRESENTED BY ITS SECRETARY, SHRI SALIM N., PIN – 695 314. - 3 THE KERALA STATE WAQF BOARD REPRESENTED BY DIVISION OFFICER/EXECUTIVE OFFICER, OFFICE OF THE DIVISIONAL OFFICER THIRUVANANTHAPURAM -, PIN – 695 033. BY ADVS. R2 BY SRI. P.K.IBRAHIM R3 BY SRI. JAMSHEED HAFIZ, SC MS. SREEJI K.B.(K/000212/2017) R1 BY SMT. DEEPA NARAYANAN, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.02.2023, ALONG WITH WP(C).37175/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos. 37111 & 37175 of 2022 : 2 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ## WP(C) NO. 37175 OF 2022 ## PETITIONER/S: MANZAR A. AGED 74 YEARS S/O ABDUL RAHMAN THENGUVILA VEEDU, KATTUMURAKKAL MUDAPURAM PO, CHIRANYINKEEZHU THIRUVANANTHAPURAM -, PIN – 695 304. BY ADV NABIL KHADER ## RESPONDENT/S: - 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -, PIN – 695 001. - 2 KATTUMURAKKAL MUSLIM JAMA-ATH MADAPPURAM PO, CHIRYAYINKEEZHU THIRUVANANTHAPURAM - REPRESENTED BY ITS SECRETARY, SHRI SALIM N., PIN – 695 314. - 3 KATTUMURAKKAL MUSLIM JAMA-ATH ADMINISTRATIVE COMMITTEE MADAPPURAM PO, CHIRYAYINKEEZHU THIRUVANANTHAPURAM - REPRESENTED BY ITS SECRETARY, SHRI SALIM N., PIN – 695 314. - 4 CHIEF EXECUTIVE OFFICER OFFICE OF THE KERALA STATE WAKF BOARD KALOOR, KOCHI -, PIN – 682 017. - 5 DIVISIONAL OFFICER THE KERALA STATE WAQF BOARD THIRUVANANTHAPURAM -, PIN – 695 033. BY ADVS. R2 BY SRI. P.K.IBRAHIM MS. SREEJI K.B.(K/000212/2017) R4 & R5 BY SRI. JAMSHEED HAZIZ,SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.02.2023, ALONG WITH WP(C).37111/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos. 37111 & 37175 of 2022 : 3 : ## **SHAJI P. CHALY, J.** --------------------------------------------------------W.P.(C). Nos. 37111 & 37175 of 2022 --------------------------------------------------------Dated this the 23[RD] day of February, 2023. ## **JUDGMENT** The captioned writ petitions, though filed by different persons, relate to a common issue raised by the petitioners in respect of an action taken against them by Kattumurakkal Muslim Jama-Ath, Thiruvananthapuram, respondent No.2, a private body apparently registered with the Kerala State Wakf Board. 2. The second respondent has filed a detailed counter affidavit disputing the allegations raised by the petitioners and a preliminary objection is raised with respect to the maintainability of the writ petitions against a private body. Therefore, I propose to hear them together on consent and deliver a common judgment. 3. Insofar as W.P.(C) No. 37111 of 2022 is concerned, the contention advanced by the petitioner is that she and her family, who are members of the second respondent, is suspended for a period of six months by cancelling Exhibit P1 family card issued to them and issuing Exhibit P2 order of suspension cum show cause notice. 4. The case of the petitioner is that even though she has submitted Exhibit P3 reply to the show cause notice and also a W.P.(C) Nos. 37111 & 37175 of 2022 : 4 : complaint before the Wakf Board as well as the Chief Minister, no action was initiated. 5. Insofar as W.P.(C) No. 37175 of 2022 is concerned, the relief sought for by the petitioner is for a direction to the very same Jama-Ath and the Wakf Board to act in accordance with the byelaws of the second respondent and to consider and pass orders on the representation submitted by the petitioner before the Divisional Officer of the Kerala State Wakf Board, respondent No.5. 6. Therein also, a detailed counter affidavit is filed by the second respondent and has also raised an objection with respect to the maintainability of the writ petition. Apparently, the second respondent Jama-Ath is a private body functioning as per the byelaw constituted by it and registered with the Wakf Board. 7. From Exhibit P2 notice dated 28.09.2022 issued by the second respondent, I find that the petitioner has misbehaved to the Imam of the second respondent and attempted to man-handle him. It is also evident that the action was initiated against the petitioner as per paragraph XXII of the bye-law of the second respondent. The petitioner in the other writ petition has raised various contentions with respect to the allegations made against him in Exhibit P2 notice. It is alleged that the administration of the second respondent is not being carried on in accordance with the bye-law W.P.(C) Nos. 37111 & 37175 of 2022 : 5 : constituted for the purpose and therefore, she seeks a direction to comply with the stipulations in the bye-laws. 8. The contention advanced by the second respondent is that the second respondent Jama-Ath is a committee elected by the adult members among Muslims living in and around the Chiryayinkeezhu area in Thiruvananthapuram District for administering the mosque and other religious institutions established for their religious services. The administration is carried on by the committee as per a bye-law. 9. It is basically contended that Exhibit P2 notice issued by the second respondent is not amenable for judicial review under Article 226 of the Constitution of India, in as much as the second respondent is not a body created under any statute to discharge any public function, nor the impugned notice involves any public element violating any fundamental rights, much less any legal right of the petitioner. 10. Therefore, according to the second respondent, the writ petition is not maintainable under law. It is further pointed out that the petitioner has an efficacious alternative remedy to approach the Wakf Tribunal created under the Wakf (Amendment) Act, 1984, and if at all the petitioner has any dispute with respect to the manner in which the administration of the second respondent is carried on, the W.P.(C) Nos. 37111 & 37175 of 2022 : 6 : petitioners have to seek the general remedy available under law. 11. I have heard the learned counsel for the petitioner Sri. Nabil Khader, learned Senior Government Pleader Smt. Deepa Narayanan, Sri. P.K. Ibrahim for the second respondent Jama-Ath and Sri. Jamshed Hafiz, learned Standing Counsel for the Wakf Board. 12. The primary question to be considered is whether the writ petitions are maintainable under Article 226 of the Constitution of India. In my considered opinion, it is quite clear and evident from Exhibit P2 notice issued by the second respondent that the action of suspension of family card was made by the second respondent, since she has misbehaved and attempted to manhandle the Imam. 13. True, it is an allegation made against the petitioner in W.P.(C) No. 37111 of 2022 and she has submitted Exhibit P3 reply to the same. If the second respondent has not taken any action on the basis of the reply to a show cause notice, it is for the petitioner to approach the Tribunal or any competent court of law to ventilate her grievances. This I say because, the second respondent is a body functioning under a bye-law and it is not a statutory body created under any of the enactments in force. 14. The contention advanced by the petitioners is that the second respondent is registered with the Kerala State Wakf Board. W.P.(C) Nos. 37111 & 37175 of 2022 : 7 : In my considered view, merely because the second respondent functioning under a bye-law is registered with a State body, that does not mean that the second respondent is discharging any public functions. It is also clear and evident from the contention advanced in the writ petitions as well as from the reply to the show cause notice issued that the dispute raised by the petitioners is against a private organization, which can only be resolved by a fact finding body after taking evidence. 15. It is well settled in law that a writ petition can be maintained against an authority in terms of Article 12 of the Constitution of India or a body discharging public duty. In my considered view, the second respondent is not discharging any public duty, and merely because the petitioners were denied certain benefits by the second respondent in terms of the bye-law, it cannot be said that it was done by the second respondent by discharging a public duty. The petitioners also do not have a case that the second respondent is, in any manner, a body functioning under the State or is receiving any aid or benefits from the State Government so as to term it as a public body discharging public duties. 16. It is well nigh settled in law that individual wrongs or breach of mutual contracts or violation of any bye-law, without ## W.P.(C) Nos. 37111 & 37175 of 2022 **==> picture [24 x 10] intentionally omitted <==** having any public law element, as it is an integral part, cannot be rectified through a writ petition under Article 226 of the Constitution of India. [See the decision in St. Mary’s Education Society and another v. Rajendra Prasad Bhargava and others (2022 KHC 6837)] Therefore, it is vivid and clear that there is no public law element in the discharge of the functions by the second respondent under a bye-law constituted by it. In that view of the matter, I am of the considered and firm opinion that the writ petition is not maintainable under Article 226 of the Constitution of India. Needless to say, writ petitions fail and accordingly, they are dismissed. sd/- **SHAJI P. CHALY, JUDGE.** Rv : 9 : ## W.P.(C) Nos. 37111 & 37175 of 2022 ## APPENDIX OF WP(C) 37111/2022 ## PETITIONER’S EXHIBITS: |Exhibit P1|THE JAMA-ATH FAMILY CARD BEARING NO. 883| |---|---| ||ISSUED BY THE 2ND RESPONDENT TO THE| ||PETITIONERS.| |Exhibit P2|TRUE COPY OF THE SUSPENSION ORDER-CUM-SHOW-| ||CAUSE NOTICE DATED 28.09.2022 ISSUED TO THE| ||PETITIONER'S SON-IN-LAW SHAMNAD BY THE 2ND| ||RESPONDENT.| |Exhibit P3|TRUE COPY OF THE REPLY GIVEN BY THE| ||PETITIONER'S SON-IN-LAW TO THE SHOW-CAUSE| ||NOTICE.| |Exhibit4|TRUE COPY OF THE SCREENSHOT SHOWING| ||PUBLICATION OF EXT P2 NOTICE IN WHATSAPP.| |Exhibit P5|TRUE COPY OF THE RECEIPT DATED 27.10.2022| ||SHOWING FILING OF HER COMPLAINT BEFORE THE| ||3RD RESPONDENT.| |Exhibit P6|TRUE COPY OF THE REPRESENTATION SUBMITTED BY| ||THE PETITIONER TO THE HON'BLE CHIEF MINISTER OF| ||KERALA IN OCTOBER, 2022.| ## RESPONDENTS’ EXHIBITS: NIL True Copy rv PS To Judge. ## W.P.(C) Nos. 37111 & 37175 of 2022 : 10 : ## APPENDIX OF WP(C) 37175/2022 PETITIONER’S EXHIBITS: Exhibit P1 TRUE COPY OF THE LETTERS DATED 17.08.2022 ISSUED BY 4TH RESPONDENT. Exhibit P2 TRUE COPY OF THE COMPLAINT PRESENTED BY THE PETITIONER DATED 27.10.2022 BEFORE THE 5TH RESPONDENT. ## RESPONDENTS’ EXIBITS: NIL True Copy PS To Judge. rv