Kerala High Court
Kottayam Mahal Muslim Juma-Ath ... vs Kerala State Wakf Board on 22 December, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
THURSDAY, THE 13TH DAY OF FEBRUARY 2014/24TH MAGHA, 1935
WP(C).No. 2267 of 2014 (G)
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AGAINST THE ORDER IN OA 18/2012 of WAKF TRIBUNAL, KOZHIKODE
DATED 22-12-2012
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PETITIONER(S):
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1. KOTTAYAM MAHAL MUSLIM JUMA-ATH COMMITTEE,
(A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE
SOCIETIES REGISTRATION ACT BEARING REG.NO.107/1983) KOTTAYAM
AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT,
REPRESENTED BY PRESIDENT, P.C.KASIM HAJI.
2. P.C.KASIM HAJI, AGED 46 YEARS,
S/O.MAMMOOTTY HAJI, PRESIDENT,
KOTTAYAM MAHAL MUSLIM JUMA-ATH COMMITTEE,
KOTTAYAM AMSOM, DESOM, THALASSERY TALUK,
KANNUR DISTRICT.
BY ADV. SRI.R.RAMADAS
RESPONDENT(S):
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1. KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD,
KALOOR, KOCHI-17.
2. CHERUVATTI USMAN HAJI, AGED 68 YEARS,
S/O.KADER, MOORAD P.O, KOTHUPARAMBA AMSOM,
MOORAD DESOM, THALASSERY TALUK, KANNUR DISTRICT.
* ADDL.R3 IMPLEADED
3. THE DISTRICT COLLECTOR ,
ERNAKULAM - 682030,
ADDL. R3 IS IMPLEADED AS PER ORDER DATED 07/02/2014 IN IA 1688/2014.
R1 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD
R2 BY ADV. SRI.M.P.MOHAMMED ASLAM
R3 BY GOVERNMENT PLEADER SMT.ANITHA RAVEENDRAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13-02-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
WP(C).No. 2267 of 2014 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. TRUE COPY OF THE ORDER DATED 1/10/2012 IN IA NO.97/2012 IN OP
119/2012 OF KERALA STATE WAKF BOARD, ERNAKULAM.
EXHIBIT P2. TRUE COPY OF THE ORDER DATED 22/12/2012 IN OA NO.18/2012
BEFORE THE KERALA STATE WAKF BOARD, ERNAKULAM.
EXHIBIT P3. TRUE COPY OF THE PROCEEDINGS DATED 16/1/2013 IN MC
NO.78/2012 BY THE SUB DIVISIONAL MAGISTRATE, THALASSERY.
EXHIBIT P4. TRUE COPY OF THE JUDGMENT DATED 1/10/2013 IN CRP(W) 71/2013
BEFORE THIS HONOURABLE COURT.
EXHIBIT P5. TRUE COPY OF THE REPRESENTATION DATED 7/10/2013 BEFORE THE
1ST RESPONDENT
EXHIBIT P6. TRUE COPY OF THE RELEVANT PAGESS OF THE LIST PUBLISHED BY
THE 1ST RESPONDENT.
EXHIBIT P7. TRUE COPY OF THE RELEVANT PAGES OF THE FINAL VOTERS LIST.
RESPONDENT(S)' EXHIBITS
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R2(A): COPY OF NOTIFICATION NO.H1-65334/2013 DATED 15/1/14 PUBLISHED BY
DISTRICT COLLECTOR, ERNAKULAM.
R2(B): COPY OF THE RELEVANT PAGES OF THE REGISTER OF WAKF OBTAINED
UNDER THE RIGHT TO INFORMATION ACT
R2(C): COPY OF THE APPLICATION FOR REGISTRATION OF WAKF DATED 19/9/62
R2(D): COPY OF THE PROCEEDINGS OF THE JUNIOR SUPERINTENDENT, DIVISIONAL
OFFICE, KERALA WAKF BOARD ISSUED TO THE SECOND RESPONDENT
DATED 19/10/2012.
R2(E): COPY OF THE RECEIPT ISSUED TO THE SECOND RESPONDENT FROM THE
KANNUR DIVISIONAL OFFICE OF THE FIRST RESPONDENT DATED 29/10/12
R2(F): COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT BEFORE
THE ELECTORAL/DISTRICT COLLECTOR, ERNAKULAM DATED 30/12/13.
/ TRUE COPY /
P.S. TO JUDGE
PJ
P.N.RAVINDRAN, J.
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W.P.(C)No.2267 of 2014
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Dated this the 13th day of February, 2014
JUDGMENT
The first petitioner is a society registered under the Societies Registration Act, 1860. The second petitioner is its President. In this writ petition they challenge Ext.P7 final voters list prepared by the District Collector, Ernakulam who is also the Returning Officer appointed by the Government to hold elections to the Kerala State Wakf Board (hereinafter referred to as "the Board" for short), to the extent it includes the name of the second respondent in the place of the name of the second petitioner.
2. The principal contention raised in the instant writ petition is that the first petitioner society is in administration and management of a Wakf Known as Goorikamarakath Wakf, that the tax for the entire extent of the Wakf property is being regularly paid by the first petitioner society, that the first petitioner society is in actual control and management of the Wakf, that while matter stood thus, an attempt was made by the second respondent and his men to trespass upon the Wakf property, that thereupon the petitioners filed O.P.No.119 of 2012 before the Board for a permanent prohibitory injunction, that along with the said petition W.P.(C)No.2267 of 2014 2 they filed I.A.No.97 of 2012 for an interim order of injunction, that the said application was allowed and an interim order of injunction evidenced by Ext.P1 was passed on 1.10.2012 restraining the respondents therein from interfering with the management of the Wakf, that the appeal filed by the respondents in O.P.No.119 of 2012 before the Wakf Tribunal, Kozhikode was dismissed by Ext.P2 order passed on 22.12.2012, that on revision filed by the respondents therein as C.R.P.(Wakf) No.71 of 2013 in this Court, a Division Bench of this Court was pleased to set aside the order passed by the Wakf Tribunal and to direct the Wakf Tribunal to dispose of the application for temporary injunction in O.P.No.119 of 2012 expeditiously, that the said petition is still pending before the Wakf Tribunal and that notwithstanding the order of injunction which is still in force, though the name of the second petitioner was initially shown in Ext.P6 draft voters list as the Mutawalli of Goorikamarakath Wakf, without notice to the petitioners the name of the second respondent herein was included when Ext.P7 final voters list was published. It is contended that the removal of the name of the second petitioner from Ext.P6 draft voters list without notice to him is arbitrary and illegal and in gross violation of the principles of natural justice. Yet another contention raised is that the respondents have no right whatsoever to interfere with the W.P.(C)No.2267 of 2014 3 administration and management of the Wakf properties.
3. The second respondent has filed a detailed counter affidavit contending that he is the Mutawalli of Goorikamarakath Wakf. Reliance is placed on the documents produced along with the counter affidavit including a receipt issued by the Board on payment of annual contribution under section 72 of the Wakf Act for the year 2011-2012 in support of the said contention.
4. I heard Sri.T.Krishnanunni, learned Senior Advocate appearing for the petitioners, Sri.K.Shibili Naha, learned standing counsel appearing for the Kerala State Wakf Board, Sri.M.P.Mohammed Aslam, learned counsel appearing for the second respondent and Smt.Anitha Ravindran, learned Senior Government Pleader appearing for the third respondent. Sri.T.Krishnanunni, learned Senior Advocate appearing for the petitioners contended that in view of Ext.P1 order of injunction passed by the Wakf Board which is still in force, the second respondent and his men cannot interfere with the administration and management of the first petitioner society, that the fact that the second respondent is the President of the first petitioner society is not in dispute and therefore, none else can represent the Wakf as the Mutawalli in the ensuing elections. The learned Senior Advocate contended that though the name of the second petitioner was W.P.(C)No.2267 of 2014 4 included in Ext.P6 draft voters list, without notice to him, his name was deleted and the name of the second respondent was included when Ext.P7 final voters list was published, in gross violation of the principles of natural justice. The learned Senior Advocate contended that in view of Ext.P1 order of injunction passed by the Board the petitioners are entitled to have the name of the second petitioner included in the final list of voters in the place of the second respondent.
5. Per contra, Sri.K.Shibili Naha, learned standing counsel appearing for the Kerala State Wakf Board and Sri.M.P.Mohammed Aslam, learned counsel appearing for the second respondent contended that except Ext.P1 order passed by the Board, the petitioners have not produced any material to substantiate their contention that they are in administration and management of the Wakf or the properties of the Wakf. Referring to Ext.P5 petition filed by the second petitioner before the Board it is contended that even in that representation the documents produced are copies of Exts.P1 to P3 and that apart from the interlocutory orders passed in the case, the petitioners have not produced any material to show that they are actually in management of the Wakf and its properties. Relying on Ext.R2(d) proceedings issued under section 72(1) of the Wakf Act, 1995, the learned counsel for respondents 1 and 2 W.P.(C)No.2267 of 2014 5 contended that annual contribution under section 72(1) of the Act was paid to the Board by the second respondent in his capacity as the Mutawalli of the Wakf and a receipt was also issued and this fact coupled with the fact that the Wakf was registered at the instance of the predecessors-in-interest of the second respondent conclusively establish the fact that the second respondent is the Mutawalli who is in administration and management of the Wakf and its properties and not the petitioners. Smt.Anitha Ravindran, learned Senior Government Pleader appearing for the District Collector/Returning Officer submitted that after Ext.P6 draft voters list was published, Ext.R2(f) complaint dated 30.12.2013 was received from the second respondent, that thereupon an enquiry was conducted by the District Collector and before the District Collector, the second respondent produced records including the proceedings issued under section 72(1) of the Wakf Act, 1995 to prove his claim that he is the Mutawalli and it was in such circumstances that the name of the second petitioner which found a place in the draft voters list was deleted and the name of the second respondent was included in the final voters list. The learned counsel appearing for respondents 1 and 2 as well as the learned Senior Advocate appearing for the petitioners conceded that it is for the first time that the Mutavalli of the Wakf in question is being given the right to vote in the elections W.P.(C)No.2267 of 2014 6 and that in the elections held in the past, Mutawalli of the Goorikamarakath Wakf had not participated in the elections.
6. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. Sub-rule (1) of rule 19 of the Kerala Wakf Rules stipulates that the electoral roll of the electoral college of the Mutawallis shall contain the names and addresses of the Mutawallis of the Wakfs having an annual income of rupees one lakh and above. Sub-rule (2) thereof, as it now stands stipulates that for the purpose of preparing the electoral roll of Mutavallis of the Wakfs having an annual income of rupees one lakh and above by the Returning Officer, the Chief Executive Officer of the Board shall give one week's time to the Mutavallis, or as the case may be, to the managing committee to elect (a) one from among themselves, to be the representative of such institution in case where a Wakf institution is having more than one mutavalli and
(b) one office-bearer of such committee, as the representative of such Wakf institution in case a Wakf institution is being administered by a managing committee. The first proviso to the said sub-rule stipulates that if the Wakf institution fails to so elect a representative and communicate that fact to the Chief Executive Officer, the senior Mutawalli in the case of a Wakf institution having W.P.(C)No.2267 of 2014 7 more than one Mutawalli and the President of the managing committee where a Wakf institution is being administered by such committee, shall be deemed to have been elected; and the same shall be incorporated in the electoral roll for the purpose of constituting the electoral college. The second proviso to sub-rule (2) of rule 19 stipulates that only those Mutawallis or the representatives of the managing committees shall be eligible to be included in the electoral roll, who are registered with the Board and have paid the annual contribution payable to the Board under section 72, up to the preceding year.
7. The short question that arises before me is whether it is the second petitioner or the second respondent who is entitled to be recognised as the Mutawalli of Goorikamarakath Wakf for the purpose of the ensuing elections. The question whether the second petitioner who is the President of the first petitioner society is entitled to represent the Wakf is pending consideration of the Wakf Tribunal pursuant to the directions issued by a Division Bench of this Court in Ext.P4 judgment. This Court has in Ext.P4 judgment directed the Wakf Tribunal to dispose of the interlocutory application for injunction filed by the petitioners herein after affording all the parties an opportunity of being heard. This Court has also observed that all the parties would be free to produce documents in respect W.P.(C)No.2267 of 2014 8 of their respective contentions and has also directed both sides to appear before the Wakf Tribunal on 31.10.2013. It is not in dispute that pursuant thereto, both sides have appeared and produced documents before the Wakf Tribunal.
8. In such circumstances, if before the Wakf Tribunal decides the issue regarding the rights of parties, this Court were to venture an opinion as to who among the second petitioner/second respondent should represent the Wakf, it would amount to an adjudication of the rights of parties before the Wakf Tribunal considers the matter on the merits. Ext.P7 voters list was prepared for the purpose of reconstituting the Board. The mere fact that for the time being the second respondent is named as the Mutawalli in that electoral roll which was prepared after disputes arose between the parties, would not in my opinion stand in the way of the Wakf Tribunal from adjudicating the dispute inter se between the parties as to who among them is entitled to administer and manage the Wakf and its properties. In such circumstances, I am of the opinion that the mere fact that for the purpose of the ensuing elections the second petitioner is recognized as the Mutawalli will not stand in the way of the Wakf Tribunal from entering a finding as to who among the parties before it is entitled to administer and manage the Wakf and its properties. I therefore find no reason why merely on the W.P.(C)No.2267 of 2014 9 ground that before the draft voters list was finalised and the name of the second petitioner was deleted, he was not put on notice or heard, the voters list should be interfered with. That apart, elections are round the corner and are scheduled to be held on 17.2.2014. Any interference at this stage with the electoral roll would affect the electoral process. Therefore for that reason also, I am of the opinion that no interference is called for.
The writ petition fails and is accordingly dismissed. I however make it clear that I have not expressed any opinion on the merits of the rival contentions and that both sides will be free to raise all their contentions before the Wakf Tribunal.
Sd/-
P.N.RAVINDRAN JUDGE vpv