Kerala High Court
T.K.Muhammed vs Kerala State Waqf Board on 27 July, 2020
Author: T.R.Ravi
Bench: K.Vinod Chandran, T.R.Ravi
W.P.(C)NO.14424/2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 27TH DAY OF JULY 2020 / 5TH SRAVANA, 1942
WP(C).No.14424 OF 2020(C)
PETITIONERS:
T.K.MUHAMMED
AGED 56 YEARS
S/O.KOYAN HAJI, THOTTATHIKKUDY HOUSE,
KOTTAPPADY P.O., KOTHAMANGALAM
ERNAKULAM DISTRICT-686 692, CONVENER, AD HOCK
COMMITTEE PANIPRA MUSLIM JAMATH, PANIPRA P.O.,
KOTHAMANGALAM-686 692.
BY ADV. SRI.S.KABEER
RESPONDENTS:
1 KERALA STATE WAQF BOARD
REPRESENTED BY THE CHIEF EXECUTIVE OFFICER,
HEAD OFFICE VIP ROAD
KALOOR, KOCHI-682 017.
2 THE CHIEF EXECUTIVE OFFICER
KERALA STATE WAQF BOARD, HEAD OFFICE,
VIP ROAD KALOOR,
KOCHI-682 017.
3 THE JUNIOR SUPERINTENDENT
KERALA STATE WAQF BOARD, HEAD OFFICE,
VIP ROAD KALOOR,
KOCHI-682 017.
4 THE RETURNING OFFICER
PANIPRA MUSLIM JAMATH, PANIPRA PO.,
KOTHAMANGALAM-686 692.
W.P.(C)No.14424/2020 2
ADDL.R5 TO R7 IMPLEADED
5 ADDL R5: T.M.MAKKAR,
AGED 78 YEARS
KNOWN AS MARAKKYAR MUSLIYAR, S/O.MAMMALI,
THEKKE MOLATH HOUSE, PANIPRA P.O,
KOTTAPPADY, KOTHAMANGALAM,
ERNAKULAM DISTRICT-686 692
6 ADDL R6: K.V.HAMSA,
AGED 42 YEARS
S/O.VEERU HAJI, KUNNATHAN HOUSE, PANIPRA P.O,
KOTTAPADY, KOTHAMANGALAM,
ERNAKULAM DISTRICT-686692
7 ADDL R7: SAITHUKUTTY MAKKAR,
THEKKE MOLATH HOUSE, PANIPRA P.O, KOTTAPADY,
KOTHAMANGALAM, ERNAKULAM DISTRICT.
ADDL R5 AND R6 ARE IMPLEADED AS PER ORDER DATED
17-07-2020 IN IA 1/2020, AND ADDL R7 IS SUO MOTU
IMPLEADED AS PER ORDER DATED 17-07-2020 IN IA
1/2020 IN WP(C) 14424/2020.
R1TO R3 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF
BOARD
R7 BY ADV. SRI.BABU KARUKAPADATH
R7 BY ADV. SMT.M.A.VAHEEDA BABU
R7 BY ADV. SRI.P.U.VINOD KUMAR
R7 BY ADV. SMT.ARYA RAGHUNATH
R7 BY ADV. SMT.VAISAKHI V.
R7 BY ADV. SRI.SHELLY PAUL
R7 BY ADV. SMT.SNEHA SUKUMARAN MULLAKKAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.14424/2020 3
JUDGMENT
T.R.RAVI, J.
The Convener of the adhoc committee which is presently managing the affairs of the Panipra Jama-ath has filed this writ petition, challenging Ext.P8 order issued by the Junior Superintendent of the Kerala State Waqf Board. As per Ext.P8, the adhoc committee has been directed to stop the proceedings for election to the Managing Committee of the Waqf scheduled on 12.07.2020. The adhoc committee has been directed to continue in office and look after the daily routine and not to take any policy decisions relating to the management of the Waqf. Even though the order is seen issued by the Junior Superintendent, the last line of the order suggests that the same is issued on the basis of directions from the Board. That is also the specific submission of the Waqf Board on whose behalf learned Standing Counsel appears. The said ground hence cannot be entertained.
2. According to the petitioner, the term of the present Managing Committee expired in November, 2019 and the adhoc committee took over charge on the basis of clause XIV of the bye- law of the Jama-ath. A truncated copy of the bye-law showing the first page and the page containing clause XIV alone has been W.P.(C)No.14424/2020 4 produced along with the writ petition. The petitioner has produced the minutes of the meeting of the adhoc committee held on 12.01.2020 as Ext.P3, which shows that the committee decided to convene a general body meeting to discuss the conduct of election on the basis of clauses VII and VIII(a) of the bye-laws. It is further stated that, the general body in its meeting held on 31.01.2020 decided to conduct election through secret ballot, with voting rights to all members who have completed 18 years as on 03.01.2020. Ext.P5 would show that the adhoc committee had entrusted Sri K.V.Hamza, one of its members, to select a person from outside the Mahal as the Returning Officer to conduct the election. It is stated that a retired officer of the KSEB Mr.A.M.Hassainar was appointed as the Returning Officer. The Returning Officer is said to have published an election notification on 13.03.2020 (Ext.P6) and the date of election was notified as 05.04.2020. COVID-19 protocol resulted in the postponement of the polling to 12.07.2020.
3. While so, on an enquiry by the Wakf Board based on a complaint from the 7th respondent, the report of which is stated to have been submitted before the Board, the 3rd respondent has issued Ext.P8 postponing the election. The Ext.P8 has been challenged mainly on the ground that the Junior Superintendent of the Waqf Board does not have any power to interfere with an W.P.(C)No.14424/2020 5 election to the Managing Committee of the Waqf; which we have found does not stand.
4. Heard Sri S.Kabeer, the counsel for the petitioner, Sri T.K.Saidalikutty, Standing Counsel for respondents 1 to 3 and Sri Babu Karukappadath on behalf of the 7th respondent.
5. The contention of the petitioner is that after the term of the earlier committee, the ad hoc committee has taken over the management of the wakf as provided for in the byelaws. The ad hoc committee has taken steps to conduct the election as provided in the bye laws and that it is at the final stage of election that Ext.P8 order stopping election has been issued by the Junior Superintendent.
6. The contention of the 7th respondent is that there is an attempt to retain the management of the Waqf with a few persons. Counter affidavit filed on behalf of the 7 th respondent says that the Chief Executive Officer of the Waqf Board had passed an order on 08.07.2020 and Ext.P8 is only a communication of the said decision. A reading of Ext.P8 order does not reveal any order of the Chief Executive Officer. Ext.P4, which is stated to be the minutes of the General Body Meeting held on 31.01.2020, would show that the General Body had discussed the items in the agenda, which includes the amendment of the bye-laws on certain aspects like the W.P.(C)No.14424/2020 6 period of the managing committee. Ext.P4 also says that the decision has been taken by 2/3rd majority of the members present.
7. The 7th respondent in his counter affidavit has stated that the Jama-ath members have not been put to notice regarding Ext.P6. It is also stated that there was no draft voters list published.
8. Having regard to the serious contentions taken against the manner of conduct of election and the fact that even though the process started as per Ext.P6 on 13.03.2020, the entire process came to a stand-still due to the lock down imposed by the Government owing to the spread of Covid 19, we feel it apposite to dispose of this writ petition with directions to ensure a proper conduct of the election under the supervision of the Waqf Board. This we do so, having regard to the the powers of the Chief Executive Officer under Section 25 of the Waqf Act, which reads thus;
"25. Duties and powers of Chief Executive Officer.--
(1) Subject to the provisions of this Act and of the rules made thereunder and the directions of the Board, functions of the Chief Executive Officer shall include--
(a) investigating the nature and extent of wakfs and wakf properties and calling whenever necessary, an inventory of Wakf properties and calling, from time to time, for accounts, returns and information from W.P.(C)No.14424/2020 7 mutawallis;
(b) inspecting or causing inspection of Wakf properties and accounts, records, deeds or documents relating thereto;
(c) doing generally of such acts as may be necessary for the control, maintenance and superintendence of Wakfs.
(2) In exercising the powers of giving directions under sub-
section (1) in respect of any Wakf, the Board shall act in conformity with the directions by the Wakf in the deed of the Wakf, the purpose of Wakf and such usage and customs of the Wakf as are sanctioned by the school of Muslim law to which the Wakf belongs.
(3) Save as otherwise expressly provided in this Act, the Chief Executive Officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under this Act."
It can be seen from Section 25 that the functions of the Chief Executive Officer shall include doing such acts as may be necessary for, the control, maintenance and superintendence of waqfs. The Section is widely worded and will include doing such acts necessary for conduct of election to the Managing Committee of a waqf if the situation warrants.
9. The writ petition is hence disposed of with the following directions.
(i) The management of the Waqf will continue with the adhoc committee, but the adhoc committee will W.P.(C)No.14424/2020 8 function under the supervision of the Chief Executive Officer of the Waqf Board.
(ii) The Chief Executive Officer or such other officer appointed by the CEO for that purpose shall convene a General Body Meeting of the Jama-ath, as and when it is feasible, in accordance with the COVID protocol on the agenda that had been fixed by the ad hoc committee for the meeting on 31.01.2020 as seen from Ext.P4 minutes, and such other items that the Chief Executive Officer thinks necessary.
(iii) The authorised officer appointed by the Chief Executive Officer shall act as the Returning Officer for conduct of the election on the basis of the bye-laws of the Jama-ath and the adhoc committee shall render all assistance to the Returning Officer for the conduct of the election.
(iv) After the completion of the election, the elected committee shall assume charge. On the elected committee assuming charge, the Chief Executive Officer and the authorised officer appointed by the Chief Executive Officer under directions (i), (ii) and (iii) will be relieved of the duties entrusted by this Court. W.P.(C)No.14424/2020 9 However, this is without prejudice to the Chief Executive Officer taking any action that may be later required under Section 25 of the Wakf Act.
(v) All attempts shall be made to conduct the General Body Meeting at the earliest and the entire process of the conduct of the General Body and that of the election shall be completed within six months from today.
In the circumstances of the case, there will be no order as to costs.
Sd/-
K. VINOD CHANDRAN JUDGE Sd/-
T.R. RAVI JUDGE dsn W.P.(C)No.14424/2020 10 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF THE BYLAW OF THE PANIPRA MUSLIM JAMA-ATH.
EXHIBIT P2 A TRUE COPY OF THE MINUTES OF THE AD HOC COMMITTEE MEETING DATED 27/12/19.
EXHIBIT P3 A TRUE COPY OF THE MINUTES OF THE AD HOC COMMITTEE MEETING DATED 12/1/20.
EXHIBIT P4 A TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING DATED 31/1/20.
EXHIBIT P5 A TRUE COPY OF THE MINUTES OF THE AD HOC COMMITTEE MEETING DATED 14/2/20 EXHIBIT P6 A TRUE COPY OF THE ELECTION NOTIFICATION AND ELECTION RULES DATED 13/3/20 PUBLISHED BY 4TH RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE FINAL CANDIDATES LIST PUBLISHED BY 4TH RESPONDENT DATED 26/3/20.
EXHIBIT P8 TRUE COPY OF THE ORDER DT.8.7.2020 ISSUED BY THE 3RD RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R7(A) A TRUE COPY OF THE PETITION DATED 14.02.2020 SUBMITTED BY THE 7TH RESPONDENT.