Revision vs K.Ismayil on 12 May, 2015

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Kerala High Court

Revision vs K.Ismayil on 12 May, 2015

The judgment and decree passed by the Wakf Tribunal, Kozhikode in O.S.No.22 of 2013 is under challenge in this revision petition. Defendants 2 to 7, 9, 10, 13 to 16 and 18 therein are the revision petitioners. Respondents 1 and 2 herein were the plaintiffs. They filed the said suit for permanent prohibitory injunction against the revision petitioners and respondents 3 to 7 herein to restrain them from interfering with the management and administration of the Waqf and its properties. Based on the rival pleadings issues were formulated and ultimately as per the impugned judgment the Tribunal restrained defendants 1 to 18 therein/the revision petitioners and respondents 3 to 7 herein, from interfering with the possession and management of properties and institutions of the plaintiff committee like Juma Masjid, Madrassa, Makham, Kottappalli Valiyullahi Orphanage etc. and from conducting Kottappally Makham Dikhar Swalath anniversary or religious preaches and other celebrations, by way of permanent injunction. It is aggrieved by the said judgment and decree that this revision petition C.R.P.(Wakf) No.545 of 2015 2 has been filed.

2. We have heard Adv.Sri.B.N.Shiv Shanker, the learned counsel for the revision petitioners, Adv.Sri.T.K.Vipindas, the learned counsel appearing for respondents 1 and 2, Adv.Sri.K.T.Shyamkumar, the learned counsel appearing for the 8 th respondent and also the learned Standing Counsel Sri.T.P.Sajid, appearing for the 9 th respondent.

3. During the course of argument it is submitted that owing to the pendency of this litigation, despite the expiry of the term of the committee lastly elected, no fresh election could be conducted. It is also the common case that the period of the managing committee is only two years from the date of assumption of charge by the elected committee. In such circumstances, there is consensus among the parties regarding the requirement to hold election to the managing committee of the first respondent. Nonetheless, there is difference of opinion as to the manner in which such an election is to be conducted. Respondents 1 and 2 who were the plaintiffs would contend that the 8 th respondent herein (defendant No.19 therein) is the Central Masjid and election is to be conducted under its supervision. Virtually, the said contention is endorsed by the 8 th respondent. That apart, it is their case that in the elected committee for the management and administration of the Waqf bearing No.5035/RA, going by the provisions C.R.P.(Wakf) No.545 of 2015 3 and the practice hitherto being followed, four of the members of the 8 th respondent are to be co-opted. However, this is stoutly resisted by the revision petitioners. Essentially, their contention is that the 8 th respondent is not having any administrative controlling power over the first respondent. Thus, it is evident that it is a question in disputation. There is yet another disputatious question regarding the right over the properties. While the revision petitioners contend that the 8 th respondent is having absolutely no right over the properties of the fist respondent respondents 1 and 2 as also the 8 th respondent contend that they are having ownership and other rights emanating from it over some of the properties. But, at the same time, there is nothing on record as to what exactly is the right, if any, of the 8 th respondent over the properties of the first respondent. That apart, we are conscious of the fact that the dispute touching the rights of the properties is not at all a matter to be resolved by us in this proceedings and obviously, the parties may have to approach the appropriate forum for its resolution. The learned counsel appearing for the revision petitioners sounded an apprehension of the revision petitioners that if election is permitted to be conducted under the supervision of the 8 th respondent it may take it as a recognition of its right to administer the properties of the first respondent and in such eventuality, there is possibility of alienation of the properties belonging to the first respondent. It is only an C.R.P.(Wakf) No.545 of 2015 4 apprehension. We are of the view that we need not probe into that question in this revision petition primarily for the reason that in view of the provisions under the Waqf Act, 1995 a waqf cannot purchase as also sell properties without obtaining prior permission from the Waqf Board. In such circumstances, we are of the considered view that in respect of the aforesaid contentious at the same time disputatious facts we need not arrive at any conclusion or enter into any finding, and it is only proper to leave the right to approach the appropriate forum to the parties in case they are or any of them is, desirous to get adjudicated such issues. But at the same time, as noticed hereinbefore, it is evident from the submissions made on behalf of the parties by the counsel on both sides that they are desirous to conduct election to the managing committee of the first respondent. In such circumstances, taking note of the consensus among the parties and making it clear that on the aforesaid disputatious questions we are not entering into any finding, we are inclined to permit for conducting election to the management of the first respondent.

4. There is dispute over another aspect as well.

Respondents 1, 2 and 8 would submit that out of the total income generated by the first respondent in an year 15% has to be paid to the 8th respondent. At the same time, the right of the 8 th respondent to claim such an amount is disputed by the revision petitioners. Despite C.R.P.(Wakf) No.545 of 2015 5 our close scrutiny of the materials on record we do not find any material for arriving at a decision on this issue and even otherwise, as observed earlier, we are of the view that such questions cannot be resolved in a revision petition, at the first instance. Hence, without making any observation as to the right of the 8 th respondent to get a share in the income we leave open this question to be resolved by any one of the parties or any member of the first respondent appropriately through appropriate forum. At the same time, since there is dispute regarding this issue it is ordered that out of the total income generated by the first respondent in an year, till the said issues are resolved, the committee assuming power shall deposit 15% of the annual income of the first respondent in a Nationalised Bank after opening an account therefor. Without orders from competent Tribunal/Court the amount deposited shall not be appropriated. It is made clear that the question whether the 8th respondent is entitled to get the amount would depend upon the outcome of any proceedings wherein the right of the 8 th respondent in that regard is adjudicated. We also make it clear that the binding effect of Exts.B4 and B5 can also be taken up appropriately by any one of the parties before the appropriate forum. So also, the right of the 8th respondent over the first respondent, in the matter of administration and management, is also a matter which could be taken appropriately by the parties for adjudication.

C.R.P.(Wakf) No.545 of 2015 6

5. As noticed hereinbefore, the parties are desirous to have an election to the managing committee of the first respondent. But, even in that issue while uniting on the opinion to have an election there is dissidence in regard to the manner in which it is to be conducted. Respondents 1 and 2 would contend that the 8 th respondent is having right to supervise the election and it is their submission that a perusal of Exts.B40 and B41 would reveal that hitherto elections are being conducted under the supervision of the 8 th respondent. The learned counsel for the 8th respondent would endorse the said contention. At the same time, this fact is also disputed by the revision petitioners. Be that as it may, taking into account the fact that for the past several years no election was conducted to the Managing Committee of the first respondent we are inclined to act upon the consensus and to permit conduct of election to the management of the first respondent subject to the following directions certainly as a one time measure:-

Let the election be conducted, on this occasion by the Waqf Board. To enable smooth conduct of the election, the Waqf Board, shall get it conducted through an Advocate of this Court. On consensus of parties we appoint Adv.Sri.T.P.Sajan as the Advocate Commissioner to conduct the election to the Managing Committee of the first respondent. He shall be paid an amount of b950,000/- prior to the conduct of the election and on the date of election a further amount of b950,000/- shall C.R.P.(Wakf) No.545 of 2015 7 be paid to him. This will be in addition to the expenses required to meet the conduct of election. All the records which are required for conducting the election shall be hand over to the Advocate Commissioner. After conducting such an election a report to that effect shall be filed before this Court, by the Advocate Commissioner. Needless to say that the different process for conducting election to a waqf are to be followed scrupulously including issuance of election notification, preparation of preliminary and final voters' lists, fixing the date of polling etc. The 8 th respondent can depute any of its office bearers to supervise the election. However, the person, so deputed shall not, in any way, intervene or interfere with the conduct of election, to be conducted by the Advocate Commissioner. Election, in the aforesaid manner, shall be conducted within a period of four months from the date of receipt of copy of this judgment. Since we have already observed that this arrangement is only for the purpose of conducting a smooth election to the committee on this occasion the parties may move the appropriate forum for getting formulated provisions for conducting election for the term onwards. It will also be open to the general body to incorporate appropriate provision, in the bye law, in case of consensus among all the parties concerned. For the purpose of constituting the electorate for the election now to be conducted based on this judgment it shall be done as has been done in C.R.P.(Wakf) No.545 of 2015 8 the year 2011 or prior to 2011. Needless to say that after conducting election the Waqf Board shall put the elected body in power forthwith and the elected body shall co-opt 4 members of the 8 th respondent to the committee. We also make it clear that co-option based on this direction will not confer any right on the 8 th respondent to claim for such co-option in future and the right to get co-opted its members in future shall be subject to any proceedings, if initiated, by any of the parties on the question of the right of the 8th respondent.

Subject to the above this revision petition is disposed of.

Sd/-

C.T.RAVIKUMAR Judge Sd/-

A.M.BABU Judge TKS // TRUE COPY // Sd/-

P.S. TO JUDGE

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