Kerala High Court
Nilakkamukku Muslim Jama-Ath vs S. Muhamed Iqbal
Author: B.Sudheendra Kumar
Bench: C.T.Ravikumar, B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939
CRP(WAKF).No. 505 of 2016 ()
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(AGAINST THE ORDER DATED 18.11.2016 IN E.P.NO.1 OF 2015 IN
O.S.NO.5 OF 2005 OF WAKF TRIBUNAL (III ADDL. DISTRICT
JUDGE), KOLLAM)
REVISION PETITIONER/ADDITIONAL 6TH JUDGMENT DEBTOR:
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NILAKKAMUKKU MUSLIM JAMA-ATH
NILAKKAMUKKU, KEEZHATTINGAL VILLAGE,
CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM DISTRICT,
REPRESENTED BY ITS SECRETARY.
BY ADVS.SRI.T.H.ABDUL AZEEZ
SRI.T.R.RAJAN
RESPONDENTS/DECREE HOLDERS AND 1ST TO 5TH AND 7TH
RESPONDENTS:
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1. S. MUHAMED IQBAL
PUTHEN VEEDU, NILAKKAMUKKU,
KADAKKAVOOR P.O., CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM DISTRICT, 695306.
2. M.MUHAMMED KUNJU
MANGLAVIL, NILAKKAMUKKU, KADAKKAVOOR P.O.,
CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM DISTRICT, 695306.
3. M.SHAMSUDHEEN
ALAYIL VEEDU, NILAKKAMUKKU, KADAKKAVOOR P.O.,
CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM DISTRICT, 695306.
CRP(WAKF).No. 505 of 2016 2
4. THE PRESIDENT
NILAKKAMUKKU MUSLIM JAMA-ATH,
REPRESENTED BY ITS PRESIDENT, A.R.AMANULLAH,
PUTHEN VEEDU, NILAKKAMUKKU, KADAKKAVOOR P.O.,
THIRUVANANTHAPURAM DISTRICT, 695306.
5. THE SECRETARY
NILAKKAMUKKU MUSLIM JAMA-ATH,
REPRESENTED BY ITS SECRETARY, V.NAZAR,
ASUMA MANZIL, PERUMKULAM P.O.,
THIRUVANANTHAPURAM DISTRICT, 691566.
6. THE SECRETARY
KERALA WAKF BOARD, PARAMARA ROAD,
ERNAKULAM NORTH, ERNAKULAM, COCHIN, 682031.
7. ABDUL VAHID
S/O.ABDUL RAHMAN, PRASANT NILAKKAMUKKU,
KADAKKAVOOR (FORMER PRESIDENT), 695306.
8. A.SHIHABUDHEEN
PULLIYARA VILAKOM, MANANKKU,
PERUMKULAM P.O., (VIA) ALAMCODE,
NOW RESIDING AT HOUSING BOARD COLONY,
AVANAVAN CHERRY, ATTINGAL (FORMER SECRETARY),
691566.
9. M.MUHAMMED BASHEER
VILAYIL VEEDU, NILAKKAMUKKU,
KADAKKAVOOR P.O., CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM DISTRICT, 695306.
R1-R3,R5,R7 BY ADV. SRI.P.K.MUHAMMED
R6 BY ADV. SRI.T.P.SAJID, SC, KERALA STATE WAQF
BOARD
THIS CRP (WAKF) HAVING BEEN FINALLY HEARD ON
30-10-2017, ALONG WITH CRP(WAKF)NO.55/2017, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
C.T.RAVIKUMAR &
B.SUDHEENDRA KUMAR, JJ.
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C.R.P.(Wakf)Nos.505 of 2016 & 55 of 2017
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Dated 30th October, 2017
JUDGMENT
Ravikumar, J.
Both the captioned revision petitions arise from the order in E.P.No.1 of 2015 in O.S.No.5 of 2005 dated 18.11.2016 passed by the Wakf Tribunal (III Additional District Judge), Kollam. A succinct narration of the facts is essential for the disposal of the revision petitions.
2. The revision petitioner in the former revision petition was the additional 6th respondent in E.P.No.1 of 2015 in O.S.No.5 of 2005. The latter revision petition has been filed by some of the decree holders who were plaintiff Nos.2,3 and 5 in O.S.No.5 of 2005. The said suit was decreed on 13.10.2006. Though various directions were issued thereunder and the above mentioned execution petition was filed seeking various directions in terms of the decree, in view of the subsequent developments the parties would submit and we also ween that we need to deal with only the direction to conduct election to the Jama-ath issued in purported compliance with the terms of the decree. Evidently, as per the decree, which was passed as far back as on C.R.P.(Wakf)Nos.505/2016 & 55/2017 2 13.10.2006, the election to the Wakf in question was to be conducted forthwith. The subsequent developments would reveal that the expression `forthwith' was not given effect in the matter of conduct of election and in fact, it is a fact that despite the judgment and decree passed on 13.10.2006 hitherto election was not conducted to the Jama- ath pursuant to the decree, according to the revision petitioners. Evidently, that is one of the reasons that constrained plaintiffs 2, 3 and 5 who are among the decree holders to file E.P.No.1 of 2015. As per the impugned order in E.P.No.1 of 2015 dated 18.11.2016, the Tribunal found that the direction for conducting election was complied with by the 3rd respondent, the Wakf Board. Evidently, before the Tribunal, the Wakf Board/3rd judgment debtor, filed an affidavit dated 9.11.2016 stating that Adv.Hashim Babu was appointed as Returning Officer for conducting election in the Jama-ath and that it would be completed on 10.1.2017. Ext.B5, marked therein as such, is the schedule for the election and going by the same the entire process of election and election itself would be completed by then. It is taking note of the affidavit and the aforesaid aspects that the Tribunal held that the directions for conducting election were complied with by the third respondent. The impugned order would also reveal that the last prayer in the execution petition is to verify the accounts of the 6th Judgment C.R.P.(Wakf)Nos.505/2016 & 55/2017 3 Debtor from 1985 till date. The Tribunal took note of the fact that the Wakf Board had taken steps in that regard and issued Ext.B3 notice dated 28.7.2016 whereby and whereunder the Mutawalli was directed to produce the account books. It is taking note of all such aspects that the Tribunal had come to the conclusion that steps were taken by the third respondent Wakf Board to comply with the decree. Consequently, the E.P. was closed. As noticed hereinbefore, it is against the said order whereby E.P.No.1 of 2005 was closed that the above revision petitions are filed.
3. The grievance raised against the order in the Execution Petition in the former revision petition, filed by the 6th judgment debtor, is that the Tribunal had virtually, gone beyond the decree in allowing the Wakf Board to conduct the election through the Returning Officer appointed by it. Essentially, the contention is that in terms of the decree passed by the Tribunal in O.S.No.5 of 2005 which was virtually confirmed by this Court in the order dated 11.6.2012 in C.R.P.No.918 of 2006, the Wakf Board could only supervise the conduct of the election in terms of the bye-laws. It is also submitted by the learned counsel appearing for the revision petitioner in the former revision petition that though a Special Leave Petition was filed against the order in C.R.P.No.918 of 2006, it was dismissed by the Hon'ble Apex Court. C.R.P.(Wakf)Nos.505/2016 & 55/2017 4 Obviously, S.L.P.Nos. 29326 and 29327 of 2017 filed against the order of this Court dated 11.6.2012 in C.R.P.Nos.918 of 2006 and 1017 of 2006 were dismissed by the Hon'ble Apex Court as per order dated 31.10.2014. The execution petition was filed thereafter in the year 2015. Going by the order of this Court, in C.R.P.No.918 of 2006 the Wakf Board could only supervise the conduct of the election in terms of the bye-laws. That essentially and exactly, is the case of the revision petitioner in the former revision petition. According to them, when in terms of the decree, the order of this Court which virtually got conformance by the order of the Apex Court, the Wakf Board could only supervise the conduct of the election, the Tribunal went wrong in upholding the appointment of the returning officer by the Wakf Board to conduct the election passed not in terms of the decree. It is their precise case that conducting the election and supervising the election are distinct and different and therefore, when the Wakf Board was only to supervise the election the Board ought not to have appointed the Returning Officer for the purpose of conducting the election. In the latter revision petition, filed against the very same order passed in E.P.No.1 of 2015, the revision petitioners/the decree holders seek to modify the order by disqualifying the first respondent from contesting in the ensuing General Election for the failure to discharge the mandatory C.R.P.(Wakf)Nos.505/2016 & 55/2017 5 obligation to register the Wakf despite the directions of the Court. They also seek for modifying the order to complete the verification of the accounts of the Jama-ath from 1985 till date within a time limit. They further seek for fixation of a date for general election to the Jama- ath.
4. We have heard the learned counsel appearing for all the parties on both sides.
5. The learned counsel appearing for the parties in unison submitted that election is to be conducted to the Jama-ath at the earliest. Even while making such a submission the learned counsel appearing for the revision petitioners in the latter revision petition made a reservation that election shall not be permitted to be conducted by the office bearers of the present committee and it should be allowed to be conducted by the returning officer appointed by the Wakf Board. It is further submitted by the learned counsel that it is only proper to conduct the election only after proper verification of the accounts of the Jama-ath.
6. We have given our anxious consideration to the rival contentions and perused the judgment and decree in O.S.No.5 of 2005, the common order of this Court in C.R.P.No.918 of 2006 and 1017 of 2006, the order of the Hon'ble Apex Court in S.L.P.Nos.29326 and 29327 of 2017 and also the order of the Tribunal in E.P.No.1 of 2015. C.R.P.(Wakf)Nos.505/2016 & 55/2017 6 As noticed hereinbefore, going by the judgment and decree in O.S.No.5 of 2005 election to the Jama-ath, was to be conducted forthwith. As stated earlier, all the parties want election to the Jama-ath to be conducted as expeditiously as possible. We have gone through the bye- laws handed over for our perusal. No specific time limit is fixed therein for completion of the election proceedings. But, at the same time, there can be no doubt with respect to the procedures to be adhered to for conducting election to the Jama-ath. Draft voters' list has to be prepared and published. Needless to say that the members who are in arrears of the subscription fee have to be afforded with opportunity to clear the arrears. After making addition/deletion taking into account the objections against the draft voters' list, if any, it has to be finalised. After publication of the final voters' list election notification has to be issued. Time for filing nominations has to be fixed. After scrutiny of the nominations, time has to be given to the persons proposed to contest the election to withdraw from it. After such procedures, final list of contesting candidates has to be published. Needless to say that in the election notification itself the time, date and venue of the election has to be published. It is also submitted by the learned counsel on both sides that election may be ordered to be conducted by secret ballot. Taking note of the fact that for the past about 12 years no election was C.R.P.(Wakf)Nos.505/2016 & 55/2017 7 conducted, though going by the decree election was to be conduced forthwith, we are of the view that no further delay could be brooked in the matter of conducting the election to the Jama-ath. In such circumstances, the impugned order in E.P.No.1 of 2015 is modified to the extent it permits election to be conducted by the returning officer appointed by the Wakf Board as it is impermissible in terms of the judgment and decree passed by the Tribunal in O.S.No.5 of 2005, which was confirmed by this Court in C.R.P.No.918 of 2006. The Wakf Board could only supervise the conduct of election in terms of the bye-laws, as held by this Court in the revision petition. But, taking note of the undue delay in the matter of conduct of the election, we are of the view that it is only proper for us to appoint an Advocate Commissioner for the smooth conduct of the election to the Jama-ath. The learned counsel on both sides submitted that Adv.Abdul Raoof Pallipath can be appointed for that purpose. Hence Adv.Sri.Abdul Raoof Pallipath is appointed the Advocate Commissioner. An amount of 25,000/- shall be given to the Advocate Commissioner as initial remuneration. Needless to say that the entire expenses for the election including publication of all the requisite notifications have to be borne by the Jama-ath. The Advocate Commissioner shall ensure compliance with the entire process of the election, specifically narrated hereinbefore, in C.R.P.(Wakf)Nos.505/2016 & 55/2017 8 terms of the bye-laws. The Advocate Commissioner shall see that such proceedings are undertaken within a period of 60 days from the date of receipt of a copy of this judgment. It is made clear that election must also be conducted within the above stipulated period. The Wakf Board shall serve a copy of this judgment to the Advocate Commissioner so as to enable him to comply with the directions of this Court within the time stipulated. The Wakf Board can supervise the election proceedings as permitted under the impugned judgment and decree. On the previous date of election, 25,000/- more shall be paid to the Advocate Commissioner towards balance remuneration.
The revision petitions are disposed of as above. There will be no order as to costs.
Sd/-
C.T.RAVIKUMAR Judge Sd/-
B.SUDHEENDRA KUMAR Judge TKS