Kerala High Court
M.Ali vs The Chief Executive Officer on 9 June, 2017
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 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939
WP(C).No. 29406 of 2017 (A)
----------------------------
PETITIONER(S):
-------------
1. M.ALI, AGED 75 YEARS, S/O. LATE MUHAMMED MANAKKAPPARAMBIL(H)
THAIKKATTUKARA PO., ALUVA -683106
2. MUHAMMED RASHEED P.M,AGED 52 YEARS, S/O. MUHAMMED PUTHEN
VEETTIL, THAIKKATTUKARA PO., ALUVA-683106
3. MUHAMMED RAFI P.K, AGED 55 YEARS, S/O. KUNJAMMPILA,
PARIYARATH HOUSE, THAIKKATTUKARA , ALUVA -683106
BY ADVS.SRI.T.H.ABDUL AZEEZ
SRI.K.P.MAJEED
SRI.MOHAMMED SADIQUE.T.A
RESPONDENT(S):
--------------
1. THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD
V.I.P ROAD, KALOOR, KOCHI-17
2. THAIKKATTUKARA MUSLIM JAMA-ATH, REPRESENTED BY ITS
PRESIDENT, THAIKKATTUKARA MUSLIM JAMA-ATH COMMITTEE
THAIKKATTUKARA PO., ALUVA -683106
3. K.K.BASHEER,KANJIRATHINGAL, DARUSSALAM, THAIKATTUKARA PO.,
ALUVA -683106
4. P.M.YOUSUF
PARIYARATH HOUSE, THAIKKATTUKARA PO., ALUVA -683106
5. C.K.NOUSHAD,CHALUKANDATHIL HOUSE, THAIKKATTUKARA PO.,
ALUVA -683106
6. K.Y.MOOSA,KUZHIYALAKATHOOTT HOUSE, THAIKKATTUKARA PO.,
ALUVA -683106
7. CHAIRMAN,ELECTION COMMITTEE, THAIKKATTUKARA
MUSLIM JAMA-ATH ,THAIKKATTUKARA PO., ALUVA -683106
8. CONVENOR,ELECTION COMMITTEE, THAIKKATTUKARA MUSLIM
JAMA-ATH, THAIKKATTUKARA PO., ALUVA -683106
R4 BY ADV. SRI.BABU KARUKAPADATH
R4 BY ADV. SMT.M.A.VAHEEDA BABU
R4 BY ADV. SRI.P.U.VINOD KUMAR
R4 BY ADV. SRI.MITHUN BABY JOHN
R4 BY ADV. SRI.J.RAMKUMAR
R4 BY ADV. SMT.AMRIN FATHIMA
R2 BY ADV. SRI.P.M.ZIRAJ
R7,R8 BY ADV. SRI.V.K.PEERMOHAMED KHAN
R1 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 29406 of 2017 (A)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:
-----------------------
EXHIBIT P1: TRUE OCPY OF THE 1ST NOTIFICATION DATED 09.06.2017
PUBLISHED BY THE 7TH RESPONDENT
EXHIBIT P2: TRUE COPY OF THE 2ND NOTIFICATION DATED 31/7/2017
PUBLISHED BY THE 7TH RESPONDENT
EXHIBIT P3: TRUE COPY OF THE FINAL CANDIDATES LIST PUBLISHED ON
21.08.2017
EXHIBIT P4: TRUE COPY OF THE ODER DATED 31.08.2017 PASSED BY THE
C.E.O. WAKF BOARD
RESPONDENT(S)' EXHIBITS
-----------------------
EXT.R2(1):TRUE COPY OF NOTICE DATED 9.9.2017 PUBLISHED BY THE SECOND
RESPONDENT IN THE NOTICE BOARD.
EXT.R2(2):TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 10.9.2017.
EXT.R2(3):TRUE COPY OF THE RELEVLANT PAGES OF BYE LAW OF SECOND
RESPONDENT.
EXT.R4(A):TRUE COPY OF THE RELEVANT PAGE OF THE BYE LAW OF THE 2ND
RESPONDENT.
//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR
&
B.SUDHEENDRA KUMAR, JJ.
==========================
W.P.(C). No.29406 OF 2017
==========================
Dated this the 9th day of October, 2017
JUDGMENT
Ravikumar, J.
The petitioners are the members of Thaikkattukara Muslim Jama-ath which is a public wakf registered with the Kerala State Wakf Board. As per its byelaw registered under the Societies Registration Act, there should be a Jama-ath Council consisting of 41 members of the Jama-ath and the said Jama-ath Council has to elect an executive committee for its day to day administration. The term of the elected council and committee is three years. The lastly elected council and committee had completed their tenure in May, 2017. In such circumstances, the annual general body meeting of the Jama-ath was convened on 30.4.2017 for the purpose of initiating steps for conducting fresh election. It is the case of the petitioners that the W.P.(C).29406/2017 2 general body meeting was convened on 30.4.2017 to ascertain whether the council could be constituted by consensus. However, no such consensus could be arrived at, owing to the dispute regarding the issue of arrears of subscription fee of certain members of the Jama- ath. Going by the byelaw, an election commission consisting of five members was elected one year prior to the expiry of the term of the committee in May, 2017. Subsequent to the meeting dated 30.4.2017, the election commission/election committee so elected had resigned. Thereafter, on 21.05.2017, another general body meeting was convened and the present election committee consisting of five members was elected in that meeting. Needless to say that the task of conducting fresh election is now vested with the said committee. Respondents 7 and 8 are the Chairman and Convener of the said committee. The 7th respondent published Ext.P1 notification on 9.6.2017 along with draft voters list, requiring the members of the Jama-ath who defaulted payment of subscription fee to clear the arrears on or before 10.7.2017. Thereafter, objections to draft voters W.P.(C).29406/2017 3 list were considered and final voters list was published. After preparation of the final voters list, Ext.P2 election notification dated 31.7.2017 was published. Going by the same, the last date for submission of nominations was 13.8.2017. Preliminary list of candidates was to be published on 13.8.2017 and scrutiny of the nominations was to be conducted on 15.8.2017. On completion of such processes as scheduled, the final list of contesting candidates was published on 21.8.2017. The said list consisted of names of 52 candidates and thereafter, one of them died. Ext.P3 is the list of the remaining candidates. As per Ext.P2, a general body was fixed on 10.9.2017 for the purpose of considering whether without conducting election by secret ballot, 41 general council members could be elected by majority opinion. As per Ext.P2, in case of failure to elect 41 members by consensus, election by secret ballot was to be conducted on 24.09.2017 from 8 a.m to 3 p.m. In the writ petition, it is stated that on that day, a meeting was convened to explore the possibility of electing 41 members by consensus. In fact, this writ petition was W.P.(C).29406/2017 4 filed prior to the convening of the said meeting. On 8.9.2017, when this matter came up for consideration, notice was ordered to respondents 2 to 8. At the same time, the second respondent was permitted thereunder to convene the general body meeting as proposed under Ext.P2, on 10.9.2017. Further, it was ordered thereunder thus:-
"But, no further steps shall be taken other than taking a decision in the matter. Any decision taken on 10/09/2017 will be subject to the result of the present writ petition.
A report in that regard shall be placed by the second respondent before this Court on 15/09/2017."
2. Pursuant to the said order, in compliance with the order dated 8.09.2017, the second respondent submitted a report. Going by the said report dated 13.09.2017, such a meeting as proposed under Ext.P2 and permitted as per order dated 8.09.2017, was convened on 10.9.2017. 184 members of the Jama-ath participated in the said general body meeting. Names of 51 contesting candidates were read out and only one candidate expressed his willingness to withdraw W.P.(C).29406/2017 5 from the contest. In such circumstances, the only option left was either to present a pannel or to conduct polling in terms of section 9
(d) of the bye-law. Nobody was willing to present a panel. Along with the said report, Ext.R2(1) notice published by the second respondent was produced. Ext.R2(2) is the relevant page of the bye- law. Thus, it is obvious that in terms of Ext.P2, a general body meeting was convened and owing to the failure to elect 41 members either by consensus or by majority, it was decided to go for election by secret ballot. Going by Ext.P2, in case of failure to elect 41 general council members by majority opinion, election by secret ballot was to be held on 24.09.2017. In view of the pendency of the writ petition, election was not conducted as scheduled.
In the writ petition, the following reliefs have been sought for:-
1. To call for the records relating to Ext.P1 to P4 and quash Ext.P4 order by issuing a writ of certiorari.
2. To issue a writ of mandamus to the respondents 7 and 8 to conduct the polling on 10.09.2017 to the 2nd respondent Jama-ath council as scheduled in Ext.P2 notification.
3. To issue an order of interim stay to the W.P.(C).29406/2017 6 operation of Ext.P4 order, pending disposal of the above writ petition.
3. Evidently, the main grievance of the petitioners is against Ext.P4. The prayer No.2 has already become infructuous. The learned counsel for the petitioners contended that since all election procedures as contemplated under the byelaw have been completed prior to the issuance of Ext.P2 and in terms of Ext.P2, in case of failure to elect 41 general council members by consensus, election process has to continue as scheduled, certainly, only with a change in the date of conduct of election by secret ballot. In otherwords, it is contended that since election could not be conducted on 24.9.2017 as proposed thereunder, what now remains to be done is only to conduct election by secret ballot by fixing a date therefor. Virtually, such contentions raised on behalf of the petitioners are endorsed by the learned counsel for respondents 7 and 8. Despite the receipt of notice, respondents 3, 5 and 6 have not chosen to enter appearance and contest the matter. We have pointedly put a question to the learned standing counsel for the 1st respondent as to whether in terms W.P.(C).29406/2017 7 of Ext.P4 the entire process for conducting election are to be redone.
The learned counsel appearing for the first respondent drew our attention to Ext.P4. It is submitted by the learned counsel that all the procedures which were undertaken for the purpose of conducting election were cancelled as per Ext.P4 and it is only thereafter that a direction was issued to the Chairman of the council to convene a general body meeting. The learned counsel further drew our attention to the following recital in Ext.P4:-
H_\U_W D_xfE?aJ_GaU 5 %"7 '\fX 5N_x_Am 5lYX_W f:OVN^X U_{_:nag:VAaK fI^DagO^7J_W XNU^O" xbIfMG_f\oC_W fDxfE?aMm H?I?_d5NBZ MxC8?H H_WmAVW_AaK dI5^x" &x"
M_A^UaKD^Cm.e5b?fD fI^DagO^7" 5b?aK D`OD_ 5lYX_W f:OVN^X gL^VA_W NaX 5bG_ gx6^Nb\" %y_O_gAIDa", %y_O_Mm \M_AaK NayOmAm gL^VA_W H_Ka" 2xa )ggc^7XmEfH H_x`f5H^O_ H_ON_AaKDaN^Cm.e'\fX 5N_x_ H_\U_W fDxfE?aMm gH^N_gHWX K`X^O_ U^B_O Da55{_W :_\Um 5]_:nm L^A_ Da5 LtfMG 5f_5ZAm Da\cN^O_ U`D_:nm D_x_f5 HWg5ID^Cm.
4. The learned counsel for the first respondent submitted that W.P.(C).29406/2017 8 since a specific direction was given under Ext.P4 to re-fund the nomination fee less the amount already incurred for taking steps up to Ext.P2, the balance amount shall be refunded equally to the persons included in Ext.P3. In short, the nub of the contentions is that in such circumstances, the process of election has to be started afresh. The learned counsel for the fourth respondent endorsed the said contention. It is submitted by the learned counsel that since Ext.P2 was cancelled as per Ext.P4 and general body meeting was convened on 10.9.2017 only thereafter and in view of the failure of the general body to elect 41 council members by consensus, the entire process has to be commenced and completed. It is thus evident from the rival contentions that the question to be resolved in this writ petition is 'whether in the circumstances now obtained the entire election process has to be started afresh or election by secret ballot could be conducted by fixing a date'. In this context, it is also relevant to note that the learned counsel for the first respondent submitted that in case the petitioners or any other party concerned got any grievance with W.P.(C).29406/2017 9 respect to Ext.P4, their remedy is to take up the matter before the Wakf Tribunal invoking its power under section 83(2) of the Wakf Act.
5. In the context of the said submission made on behalf of the first and fourth respondents, it is apropos to refer to the order passed by this Court on 8.9.2017. A perusal of the said order would reveal that this Court admitted the matter on 8.9.2017. But at the same time, this Court permitted the second respondent to go ahead with general body meeting proposed to be held on 10.9.2017. It was also made clear that any decision taken in such meeting would be subject to the result of the writ petition. Admittedly, none had challenged the said order and at the same time, it is an indisputable fact that as permitted by this Court, a general body meeting was convened on 10.9.2017. Ext.R2(2) is the copy of the minutes of the meeting held on 10.9.2017. It is relevant to refer to the decisions taken in that meeting. They read thus:-
<N^ %Jm dIX_Aam f5..".%LmFaW
5x`N_fa %GmFcfDO_W 5b?_O
W.P.(C).29406/2017 10
fI^DagO^7J_We P.B.%\_AaEm 6_y^
%Jm H?J_.e%D_HagVW" <N^ %Jm
dIX_Aam 'KfJ fI^DagO^7J_fa
&UVc5D U_VF`5x_:na.eDa?VKm <N^ %Jm
fXd5Gy_ %LmFaW \J`Km H_\U_f\ 51
XmE^H^Vj_5{af? gIxa5Z gx6fM?aJa5Oa"
f:Oqa.
I_K`?m &fxC_\a" H_\U_\aU
XmE^H^Vj_DbJ_W H_Km XbO" I_z^y^X
DOn^yagI^ .Km g:^F_:ngM^Z 2x^Z
N^dDN^Cm DOn^y^ODm.eI_K`?m MxC8?H
gI<me80, 9D dIX_Aam U^O_:na.e%Dm
dI5^x" 41 %"7 I^HW %UDx_M_AaU^X
DOn^yagI^ .Km %gHbWC" H?J_.e&xa"
DfK NagK^Gm UK_\o.e&OD_H^W
fI^DagO^7J_W 'DaUfxOaU 5^xcBZ
g5^?D_fO %y_O_AafNKm dIX_Aam
fI^DagO^7J_W IyEa.
It would reveal that in the said meeting, the names of 51 candidates were read out and they were asked whether anyone wanted to withdraw from the contest. However, going by Ext.R2(2), one person alone had expressed willingness to withdraw from contest. Thus, it is obvious that other 50 persons wanted to contest the election. In other words, no consensus could be arrived at, in the said meeting, for the purpose of electing 41 members to the general council. It would also reveal that the president of the said meeting had enquired whether anyone is W.P.(C).29406/2017 11 prepared to present panel consisting of 41 members and that none was willing to present such a panel. In such circumstances, it was decided to inform the entire aspects that transpired in the said meeting to this Court. A scanning of Ext.R2, as extracted hereinbefore, would reveal what had transpired in the said meeting held on 10.9.2017. It is obvious from the above narration of transactions occurred on that day that the real intention of the meeting was to conduct election as proposed in case of failure to arrive at a consensus in the matter of election of 41 general council members lest questions in the aforesaid nature would not have been put to the candidates, by the person who presided the meeting.
6. Though the learned counsel for the first respondent submitted that persons who got any grievance with respect to Ext.P4 had to be relegated to resort to the remedy available under section 83 (2) of the Wakf Act before the Wakf Tribunal, we are of the considered view that such contention cannot be sustained at this distance of time. In the order dated 8.9.2017, it was made clear that W.P.(C).29406/2017 12 though permission was granted to convene a meeting as proposed under Ext.P2 on 10.9.2017, this Court made it clear that any decision taken on 10.9.2017 would be subject to the result of the writ petition.
The rival contentions and the materials on record would reveal that no disputatious question requiring taking of evidence involves in this writ petition. So also, the discretion whether writ petition is to be entertained or not had already been exercised by this Court and the matter was admitted and it was also made clear that any decision taken in the meeting on 10.9.2017 would be subject to the result of the writ petition. As already noticed, virtually, no decision was taken in the meeting. In such circumstances, we are proceeding to consider the challenge made by the petitioners against Ext.P4, on merits.
7. While considering the challenge against Ext.P4, it is only proper to consider the indisputable facts. Prior to the passing of Ext.P4, certain proceedings in connection with an election were completed in the sense that draft voters list was published, final voters list was published after considering the objection to the draft voters W.P.(C).29406/2017 13 list, nomination papers were received in terms of Ext.P2, final list of candidates was published after conducting scrutiny and after permitting withdrawal of the nominations. It is only after publication of the final list of contesting candidates that the general body was proposed to be convened on 10.9.2017. As noticed earlier, the intention to convene such a meeting on 10.9.2017 was to explore the possibility of electing 41 general council members by consensus and in case of failure, to go for election by secret ballot. Upon finding that no consensus could be arrived at, a decision was taken to conduct election in accordance with the provisions of the bye-law as mentioned in Ext.R2(2). In such circumstances, the next question is what is the provision under the bye-law regarding conduct of election.
8. The learned counsel on both sides submitted that the provisions for conducting election to the general council is given under clause 9(e) of the bye-law. It reads thus:-
fI^DagO^7J_W U:nm Mbx_If^M_dI^O dI5^x"
fDxfE?aMm H?A^fD UK^W xYXc L^\xm U]_ fDxfE?aMm H?JaKD_Hm 30 F_UXJ_H5" H?I?_ d5NBZ IbVJ_O^A_ fDxfE?aMm H?gJID^Cm.
W.P.(C).29406/2017 14 Though both sides were unanimous in saying that election by secret ballot is the only option now available for constituting the 41 member Jama-ath Council, there is clear cleavage regarding the procedures to be followed and completed for its constitution by election through secret ballot. We are of the considered view that a careful scrutiny of the various provisions under clause 9 would answer the question regarding the further course of action to be taken in the present circumstances. The writ petitioners and the respondents 7 and 8 would contend that what is now left to be done is the fixation of the date, time and venue for conducting election by secret ballot and thereafter, counting and declaration of result. At the same time, the 4th respondent would contend that the entire process of election has to be re-done from preparation of draft voters list and granting opportunity to the members to clear arrears, declaration of the date of election and so on and so forth prescribed for conducting an election, again. We are of the considered view that what is to be looked into in the light of the rival contentions and the aforesaid provision in the bye-law is W.P.(C).29406/2017 15 what exactly were the procedures of election completed unto the convening of the general body meeting held on 10.9.2017. In this context, it is to be noted that in Ext.P2 notification as also in the counter affidavit filed by the 4th respondent, the purpose of such meeting was given as one for exploring the possibility of finding out the scope of electing 41 general council members by consensus. But, at the same time, clause 9(b) would reveal that such a meeting has to be conducted for the purpose of considering whether 41 persons could be elected by majority. As per the same, the need to go for an election by secret ballot is required only on failure to arrive at a consensus in that regard. On going through clause 9(b) of the bye-law, we are of the considered view that the real purpose of conduct of such a meeting contemplated thereunder is exploration of the possibility of arriving at consensus in the matter of election of 41 members to the general council by majority without resorting to election by secret ballot. Evidently, a meeting was also conducted for the said purpose on 10.9.2017.
W.P.(C).29406/2017 16
9. We will now consider how stage up to the conduct of such a meeting had reached in the case on hand. In that regard, it is to be noted that the first step, going by the bye-law is to elect a commission/election committee to conduct the election. Evidently, thereupon, steps provided under clause 9(a) and the other sub-clauses of clause 9 are to be resorted. Going by clause 9(a), two months prior to the date of election, lists of persons having right to vote and persons who defaulted in payment of subscription fee are to be published. The defaulters shall be given an opportunity to clear the arrears up to a period which is one month prior to the date of election and thereafter, the final voters list has to be published at least 21 days before the date of election. Thereupon, election notice has to be published with a minimum gap of 21 days. Steps contemplated under clause 9(b) are to be taken after issuing the election notice. Clause 9
(b) reads thus:-
"I^H\^O_gG^, %\o^fDgO^ 5lYX_\_g\OmAm %"
7Bf{ H_VggV_A^UaKDa", H^NH_VggV" 41_W 5b?aDW UK^W %D_H^O_ 5b?aK fI^DagO^7J_W H_Ka DfK 41 %"7Bf{ Mbx_If^M_dI^OdI5^xgN^, xYXcL^\x_\bf?gO^ D_xfE?agAID^Cm."
W.P.(C).29406/2017 17 A bare reading of clause 9(b) of the bye-law, more particularly, the underlined portion would undoubtedly indicate that after publication of election notice in terms of clause 9(a), nominations would be submitted and only if the number of nominations exceeds 41, the question of convening of general body meeting would arise for the purpose of electing 41 members by majority opinion. If ultimately it is found that all such procedures were already done prior to the convening of the general body meeting on 10.9.2017 election could and should continue only from that stage. In that regard, Exts.P1 to P3 are to be verified. They would reveal whether the steps to be taken prior to the conduct of election by secret ballot, in terms of the bye- law, were already adhered or not. In fact, it must have been done twice, by now. In the writ petition, it is specifically stated that it was after completing the election process that a general body meeting was convened on 30.4.2017 to ascertain whether members of general council could be elected by consensus. True that the particulars of the various steps taken till the convening of the said meeting are not W.P.(C).29406/2017 18 narrated and at the same time, it is common case that it was owing to the failure to arrive at a consensus on that day pursuant to a row over arrears of subscription fee, the then election committee had resigned paving way to the election of the present election committee on 21/5/2017. Going by the averments in the writ petition, subsequent to the election of the said election committee on 21.5.2017, Ext.P1 notification dated 9.6.2017 wherewithal a draft voters list containing the names of 1366 members of the Jama-ath, was published. The defaulters of subscription fee were given an opportunity to clear the arrears on or before 10.7.2017. As per the same, for inclusion, for deletion as also for any correction, members were to submit applications/objections on or before 10.7.2017. Thereafter, the final voters list was published after considering the objections to the draft voters list. It is to be noted that those persons whose names were included in the final voters list were eligible to submit nominations to contest the election to the Jama-ath council. Subsequently, Ext.P2 election notification dated 31.7.2017 was published. In terms of the W.P.(C).29406/2017 19 same, nominations were submitted and after scrutiny and withdrawal, a final list of 52 contesting candidates was published. Later, one of them died and Ext.P3 is the list of remaining candidates in the election field. Election to general body meeting was proposed to be held on
10.9.2017, as per Ext.P2. It was further stated in Ext.P2 that in case of consensual decision in the matter of election of 41 council members, steps for announcing their names in general body meeting would be taken. It was also stated therein that in case of failure to elect 41 general council members of the Jama-ath council by consensus, election by secret ballot would be conducted in the venue mentioned therein, on 24.9.2017. In fact, the said order was understood otherwise by the petitioners. Though they canvassed the same position, they were under the impression that as per Ext.P4, the first respondent had directed the second respondent to conduct general body meeting and in case of failure to arrive at such consensus in the matter of election of 41 general council members, the entire process of election commencing from publication of draft voters list and granting W.P.(C).29406/2017 20 opportunity to persons to clear off their arrears, has to be started afresh owing to the cancellation of Ext.P2. As noticed hereinbefore, in the writ petition, the specific contention of the petitioners is that after completing the election process, general body meeting was convened on 30.4.2017, but no consensus could be arrived at, in the said meeting and consequently, the then election committee members tendered resignation. Admittedly, the present election committee was elected in the subsequent meeting held on 21.5.2017. The petitioners have also specifically stated in the writ petition that the said committee thereupon initiated and completed the entire process of election as contemplated under clause 9(a) of the bye-law. A scanning of the pleadings in the counter affidavit filed by the fourth respondent would also reveal that the present election committee was elected in the general body meeting on 21.5.2017 and the said committee had taken steps for conducting election and ultimately a general body meeting was convened on 10.9.2017. A careful reading of the counter affidavit filed by the fourth respondent would reveal the fact that they W.P.(C).29406/2017 21 would also admit the fact that the election committee elected in the general body meeting dated 21.5.2017 commenced the election process afresh by publishing Ext.P1 notification and by preparing a new voters list. True that the 4th respondent justifies and supports Ext.P4 order. Going by the bye-law, after completing such procedures, a meeting is to be convened to ascertain whether any consensual decision in the matter of election of 41 members of the general council could be arrived at. Evidently, it was such an endeavour that was made in the meeting held on 10.9.2017. The said fact is evident from the report dated 13.9.2017 filed by the 2nd respondent pursuant to the direction issued by this Court on 8.9.2017. A perusal of Ext.R2 (2) filed along with the said report would reveal that a question was put to all the contesting candidates mentioned in Ext.P3 list as to whether any of them would withdraw from their candidature. On getting negative nod, the possibility of presentation of a panel consisting of 41 members was also explored. Though in the writ petition, the petitioners specifically raised the contention that a list of W.P.(C).29406/2017 22 52 contesting candidates was published and Ext.P3 is the list containing the names of such candidates sans the one who died after publication of the list of contesting candidates, the respondents have not refuted the same. Evidently, without disputing the aforesaid aspects what is stated by the 4th respondent is that after the unsuccessful attempt of bringing consensual decision to elect 41 members, nominations ought to have been invited for conducting election by secret ballot. We have already referred to Ext.R4(a), extract of the bye-law, Exts.P1 to P3 as also Exts.R2(1) and R2(2) produced along with the report by the 2nd respondent. The factual position obtained from the scanning of the aforesaid documents and the rival pleadings and submissions would reveal that all steps ending up to publication of final list of contesting candidates and convening of a meeting to explore the possibility of arriving at a consensus were completed subsequent to the constitution of the present election committee. Evidently, the election processes were undertaken twice already. After adhering to such processes in the meeting held on W.P.(C).29406/2017 23 10.9.2017, the possibility election of 41 members by consensus was also made. If every now and then, on an interruption of the process of election for one or other reason, the entire election processes are required to be repeated, it might defeat the very sole of the provisions relating election in the bye-law. We have no hesitation to hold that such an interpretation would create uncertainty in the matter of administration of the wakf. The very purpose of prescription of various procedures, as aforesaid, is to conduct election to the general council and then managing committee immediately on expiry of the period of previous committee. The election of such a general council and then election of a committee to manage the day to day affairs of the Jama-ath is inevitable for its smooth conduct as also for the welfare of the members of the Jama-ath. In such circumstances, we have no hesitation to hold that construing the order in Ext.P4 as one compelling the Jama-ath to commence the entire process of election afresh would defeat the very purpose of the relevant provisions under the bye-law besides being absolutely unwarranted in view of the W.P.(C).29406/2017 24 relevant provisions, as mentioned hereinbefore. When it is evident that the entire procedures for conducting election had been undertaken by the present election committee elected in the meeting dated 21.5.2017, we got absolutely no hesitation to hold that what is now left to be done, in view of clause 9 of the bye-law is fixation of time, date and venue of election by secret ballot and upon polling on the appointed day, counting and declaration of the result. In such circumstances, it is only just and proper to permit election to the Jama-ath for the purpose of constituting general council by fixing a date for conducting election to the council of the Jama-ath by secret ballot in terms of the bye-law. Going by the bye-law, election has to be conducted after such a meeting within 30 days. In this case, since the meeting dated 10.9.2017 ended in futility, election in terms of such provision ought to have been conducted on or before 9.10.2017. Evidently, it is only due to the pendency of this writ petition and in the absence of any specific orders, more so, in view of the order dated 8.9.2017 making the decision in the meeting dated 10.9.2017 subject W.P.(C).29406/2017 25 to the result of the writ petition that such an election by secret ballot was not conducted. In such circumstances, this writ petition is disposed of granting liberty to the present election committee elected in the meeting dated 21.5.2017 to conduct election by secret ballot to the general council of the second respondent Jama-ath, in terms of the bye-law. Date, time and venue for the same shall be notified by the said election committee appropriately and it shall be done in between 22.10.2017 and 13.11.2017. Needless to say that after election by secret ballot on the appointed day, the votes shall be counted and the result of election shall be declared on the same day to enable the newly constituted committee to assume charge, without any further delay.
Sd/-
C.T. RAVIKUMAR (JUDGE) Sd/-
B.SUDHEENDRA KUMAR
(JUDGE)
spc/
W.P.(C).29406/2017 26
C.T. RAVIKUMAR, J.
W.P.(C).29406/2017 27
JUDGMENT
September,2010