Partly allowed

Moozhikkal Aboobacker v. the District Registrar (General)

Kerala HC1 Mar 2017WP(C)/38427/2016

Case brief

AI extract

What is this about?

This writ petition challenged the District Registrar's approval of the managing committee list of a rival mosque society. The Court declared the societies distinct, held that member-list registration is an internal matter not subject to inter-society objection, and directed the Registrar to verify shared office addresses.

What did the court decide?

The impugned order approving the second respondent's list was upheld subject to the Registrar verifying and rectifying overlapping office address details.

Moozhikkal Aboobacker Vs the District Registrar (General) — Property and Title | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938 WP(C).No. 38427 of 2016 (C) ----------------------------

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PETITIONER(S):

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MOOZHIKKAL ABOOBACKER, S/O.MUHAMMEDKUTTY, AGED 64 YEARS, MOOZHIKKAL HOUSE, KUTTISSERICHINA, A.R.NAGAR P.O., TIRURANGADI, MALAPPURAM DISTRICT - 676 305, SECRETARY, MASJIDUL NOORIYA NUSRATHUL ISLAM SANGHAM (REGISTRATION NO.262/1987), KUTTISSERICHINA, A.R.NAGAR P.O., MALAPPURAM DISTRICT.

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BY ADVS. SRI. T. KRISHNANUNNY (SR) SRI.R.RAMADAS

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RESPONDENT(S):

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1. THE DISTRICT REGISTRAR (GENERAL), OFFICE OF THE DISTRICT REGISTRAR, MALAPPURAM, PIN - 676 505. 2. A.K.KUNHIPOCKER HAJI, S/O.MOIDEENKUTTY, PRESIDENT, 'MASJIDUL NOORIYA MUSLIM NAMASKARA PALLI COMMITTEE, REGN.NO.508/2010, RESIDING AT KATTUMOOCHIKKAL HOUSE, P.O.OLAKARA, MALAPPURAM DISTRICT - 676 306. R1 BY ADV. GOVERNMENT PLEADER SMT. MABLE C. KURIAN R2 BY ADV. SRI.G.SREEKUMAR (SR.) R2 BY ADV. SRI.M.KRISHNAKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 38427 of 2016 (C)

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APPENDIX

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PETITIONER(S ------------	)' EXHIBITS -----------
P1	TRUE COPY OF THE PROCEEDINGS DATED 05.07.2011 ISSUED BY THE DISTRICT REGISTRAR.
P2	TRUE COPY OF THE PROCEEDINGS DATED 25.03.2015 ISSUED BY THE DISTRICT REGISTRAR.
P3	TRUE COPY OF THE JUDGMENT DATED 16.07.2015 IN W.P.(C) NO.14497/2015 FILED BY ONE MR.A.P.ABBAS.
P4	TRUE COPY OF THE JUDGMENT DATED 16.11.2015 IN W.A.NO.2278/2015.
P5	TRUE COPY OF THE LIST OF MEMBERS SUBMITTED BY THE PETITIONER IN RESPECT OF MASJIDUL NOORIYA NUSRUTHUL SLAM SANGHAM (REGN.NO.262/1987) FOR THE PERIOD 2016- 17 BEFORE THE DISTRICT REGISTRAR, MALAPPURAM).
P6	TRUE COPY OF THE CERTIFICATE DATED 09.02.2015 ISSUED BY THE DIVISIONAL OFFICER OF THE KERALA STATE WAKF BOARD.
P7	TRUE COPY OF THE ORDER DATED 17.11.2016 ISSUED BY THE DISTRICT REGISTRAR.
P8	TRUE COPY OF THE LETTER DATED 06.08.2016 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT WITH COPY TO THE PETITIONER
P9	TRUE COPY OF THE REPLY DATED 03.10.2016 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER AND DISTRICT REGISTRAR (GENERAL), MALAPPURAM
P10	TRUE COPY OF THE LETTER DATED 18.08.2016 ISSUED BY THE SECRETARY OF A.R. NAGAR GRAMA PANCHAYAT TO THE 1ST RESPONDENT
P11	TRUE CPY OF THE OWNERSHIP CERTIFICATE DATED 06.03.2014 ISSUED by the A.R. NAGAR GRAMA PANCHAYATH TO THE PETITIONER
P12	TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 10.02.2015 ISSUED BY THE A.R. NAGAR GRAMA PANCHAYATH TO THE PETITIONER
P13	TRUE COPY OF THE INSTRUCTION SUBMITTED BY THE THEN DISTRICT REGISTRAR (GENERAL) AND REGISTRAR OF SOCIETY IN RESPECT OF WPC.14497/2015
P14	TRUE COPY OF THE PETITION DATED 11.01.2017 SUBMITTED BY THE PETITIONER BEFORE THE INFORMATION OFFICER, A.R. NAGAR GRAMA PANCHAYATH
P15	TRUE COPY OF THE REPLY DATED 23.01.2017 RECEIVED BY THE PETITIONER FROM THE PUBLIC INFORMATION OFFICER OF A.R. NAGAR GRAMA PANCHAYATH

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WP(C).No. 38427 of 2016 (C)

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RESPONDENT(S)' EXHIBITS

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R2(A) TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER SOCIETY R2(B) TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE 2ND RESPONDENT SOCIETY R2(C) TRUE COPY OF THE JUDGMENT IN WA.2278/2015 HIGH COURT OF KERALA R2(D) TRUE COPY OF THE JUDGMENT IN WPC.22414/2016 HIGH COURT OF KERALA

TRUE COPY

P.S. TO JUDGE

Devan Ramachandran, J.

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W.P.(C)No.38427 of 2016 C

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Dated this the 1^st day of March, 2017

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JUDGMENT

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On its facade, this litigation presents itself in the habiliments of the provisions of the Societies Registration Act, 1860 ('the Act' for brevity). However, at its core I see that the fracas between the parties essentially is on account of the dialectical interests relating to the temporalities and the management, control and possession of a Mosque by name 'Masjidul Nooriya' and its Wakf properties.

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The petitioner is seen to have approached this Court in this writ petition against an order which appears to be one issued by the competent authority under the Act accepting and approving the list of members of the managing committee of the second respondent society, as is required under Section 4 of the Act.

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WPC 38427/16

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At the heart of it, all what the petitioner is trying to do is to prove that the second respondent society has been operating illegally and that they are trying to take control of the Mosque by projecting themselves to be the society competent to do so. The order that is impugned in this writ petition is Exhibit P7 and it has been assailed by the petitioner on various grounds.

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I have heard Sri.T.Krishnanunni, the learned Senior Counsel, assisted by Sri.R.Ramadas, appearing for the petitioner, Sri.G.Sreekumar, the learned Senior Counsel, assisted by Sri.M.Krishnakumar, appearing for the second respondent and the learned Government Pleader for the first respondent.

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This case has a long story. But, I choose to compress it without hurting its foundational integrity while I record the essential facts.

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WPC 38427/16

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There are two societies. One is the petitioner, which is called the Masjidul Nooriya Nusrathul Islam Sangham ('the Sangham' for brevity). This society is registered under the provisions of the Act and bears Reg.No.262/1987.

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The second respondent is another society with a distinct registration and holds Reg.No.508/2010. The name of that Society is Masjidul Nooriya Muslim Namaskara Palli Committee ('the Namaskara Palli Committee' for brevity).

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The petitioner Sangham was registered in the year 1987 and had, among its objects, to manage and

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take care of the affairs of Mosque and other Wakf properties and they claim that they have support of 95% of the Mahal members.

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The second respondent Namaskara Palli Committee was founded in the year 2010 on an allegation that the Sangham was no longer in function and that it

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WPC 38427/16

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has become defunct. They also showed one of their objects in their memorandum as to take care of the affairs of the Mosque along with other objectives.

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This was the genesis of the affray and the disputes between the two sides. The Sangham maintains that the Namskara Palli Committee obtained registration as a separate society on the foundations of fraud and misrepresentation. They say that the Namaskara Palli Committee has been able to obtain registration under the Act only because they made a wrong assertion before the competent authority that the Sangham was defunct and not functioning. They, therefore, say that the foundational basis on which the Namasakra Palli Committee was constituted itself is confutative and that, therefore, the said committee cannot be allowed to function further.

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Au contraire to this, the Namskara Palli

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Committee asserts that they formed themselves into a society in the year 2010 because the Sangham had not

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WPC 38427/16 5

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been functioning at all which is evident from the fact that the Sangham had not filed the list of members as required under Section 4 of the Act until 2011. In fact, this was one of the reasons why the competent authority granted registration to the Namskara Palli Committee, because at the time when it was registered, the Sangham had not filed the requisite list of members from 1987 to 2011. It was, therefore, possible that the competent authority was under the logical impression that the Sangam was not functioning. These facts are virtually obvious because the Sangham, probably on being alerted by the registration of the Namskara Palli Committee, immediately moved an application before the competent authority under Section 4 of the Act to have its list of members registered under its terms for the period from 1987-88 to 2009-10. This was the factor that could be vital in this case as I will state presently.

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WPC 38427/16

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When the Sangham's list of members was approved, that was challenged by the Namskara Palli Committee before the competent authority, which finally led to a writ petition being filed before this Court as W.P. (C)No.22721/2011.

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While so, the Namskara Palli Committee moved an application to have its members registered under Section 4 of the Act, which was objected to by the members of the Sangham, which then led to denial of their applications at the hands of the competent authority finding that the parturition of the Namskara Palli Committee itself was questionable and based on wrong assumptions and incorrect assertions. This order was challenged by the Namskara Palli Committee before this Court but was dismissed by a learned Single Judge as evidenced by Exhibit P3 judgment. However, in appeal against the said judgment the Division bench of this Court, as is evident from Exhibit P4 judgment, relegated

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WPC 38427/16 7

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the parties to their remedies as are available under the applicable Statutes or Regulations. Apparently, armed by this direction, the Namskara Palli Committee approached the competent authority under the Act again which then led to a complete retraction at the hands of that authority and he issued Exhibit P7, which is impugned in this writ petition.

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I am now concerned about the legality of Exhibit P7 order. But, before I enter into an assessment of that I must bear in mind one very relevant aspect. I started this judgment by saying that it is an attempt to control the temporalities of a Mosque and other dedicated properties. There is no doubt about this because both societies stake to be in management of the Mosque and Wakf properties. The petitioner Sangham stakes claim based on their registration with the Wakf Act, which is produced as Exhibit P6. Obviously, if the Sangham is registered with the Wakf Board as the

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WPC 38427/16 8

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Muthavalli, as per a process known to law, they continue to be so notwithstanding the fact that there is another society, in whatever name, registered for such purposes. This appears to be the apprehension of the petitioner also. They think that if the the Namskara Palli Committee is allowed to function, their existence would be in peril because they apprehend that the Namskara Palli Committee would then attempt to take control over the management of the Mosque. I am not sure if this apprehension is well founded because the management, control and administration of the Wakf would obviously depend upon the orders to be passed by the Wakf Board or by the Tribunal in an appropriate proceeding. If the petitioner Sangham is the Muthavalli as recognised by the Wakf Board or by the orders of the Tribunal they would ineluctably continue to be so notwithstanding the birth or continuation of another society.

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WPC 38427/16

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Though not called upon to say so, I think it is necessary, at least as a measure to find some quietus to the ongoing bickering between the two societies, that I declare that these two societies are distinct and different. I do so because it is certain and there cannot be any doubt on this. The two individual societies cannot hold out to be the other or to imbricate on the other or to claim that they are the other because the other is inanimate. What I mean to say is that the Sangham, which is registered in 1987, continues to be a distinct society governed by their bye-laws and memorandum and by the objects that they bind themselves to. Similarly, the Namskara Palli Committee is a distinct society having a distinct registration number and governed by their own bye-laws and objectives. Merely because there are some objects in these two memorandum that may be similar or identical to each other it does not mean that the Namskara Palli Committee becomes the Sangham or vice-

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WPC 38427/16

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versa. The petitioner need not have any apprehension on that. And if there is any further apprehension left I am sure it will be allayed by the fact that I hereby declare that the petitioner Sangham and the Namskara Palli Committee-the second respondent herein are two distinct different societies.

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A collateral issue raised by the learned Senior Counsel appearing for the petitioner was that the address shown by the Namskara Palli Committee in their registration documents is the same as the address that was shown by the Sangham when they were registered. Even though ostensibly the address of the office in both the documents seems to be different, he asserts that the building number shown by the Namskara Palli Committee is the same as that of the office of the Sangham but only that this is a number that was alloted after the quinquennial revision. He clarifies it by saying that the offices shown by both the societies in their respective

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WPC 38427/16

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documents are one and the same, but that the Sangham shows the number allotted after the quinquennial revision and that the Namskara Palli Committee shows the number prior to such revision. If this be so, I am of the firm view that the authorities should advert to this and pass immediate orders to ensure that the Namskara Palli Committee amend their bye-laws suitably to show the office as some other building and not that which is being used by the Sangham. This is imperative not only in terms of the Statute but also to ensure that these two societies do not go for the jugular of each other with respect to the properties which is claimed as their respective offices.

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As far as list of members are concerned, the fact that a society has been validly registered under the Statute would make it axiomatically incumbent upon such societies to file a list of its office bearers without fail every year. This is the mandate of the Statute. If a society has been registered then it is imperative and incumbent

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WPC 38427/16

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that the list of members be registered every year under Section 4 of the Act. The said section is emphatic in its mandate and deserves compelling advertance to its full view to gauge its dictate and I, therefore, reproduce it as under:

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“ Annual list of managing body to be filed .-Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of Joint-Stock companies, of the names, addresses and occupations of the governors, council, directors, committee, or other governing body then entrusted with the management of the affairs of the society.”

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I am, reading the inviolable command under the above section, unable to understand how the members of one society can object to the registration of members of another society because if at all any one could object to such registration, would be persons who are members of the same society, claiming that they and not the persons, who claim to be the office bearers of that

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WPC 38427/16

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society, are in office. It is ineffable as to how the petitioner or the second respondent can object to each other's lists that are presented by the respective societies for registration under Section 4 of the Act. These attempts have been made by both sides only because they seem to be harbouring the impression that by doing so and by opposing and thus denying such registration that Society would then have no foundations to exist. Obviously, the petitioner Sangham appears to believe that it is do-or-die situation for them in making objections to the registration of the members of the office bearers of the Namskara Palli Committee because by such registration being denied, they would, obviously, be unable to function. This is the oldest trick in the book where one annihilates the opponent so as the claims are then monopolised. This cannot be lost sight of by the authorities while considering these issues especially when rival claims are stake.

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WPC 38427/16

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I have already declared that these are two different societies. I have already noticed that the petitioner Sangham has Exhibit P6 registration by the Wakf Board in their name and that the second respondent Namskara Palli Committee has not been able to place on record any such document and I would, therefore, assume, at least for the time being, that the petitioner Sangham is the one which is recognised by the Wakf Board to be in charge, management and custody of the Wakf properties, including the Mosque. This is only a primary view which is obviously subject to various orders that will have to be passed by the authorities in future.

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I am told by the learned Senior Counsel appearing for the second respondent that in fact a suit numbered as O.S.No.44/2012 has been initiated by them before the Wakf Tribunal, Kozhikode for a declaration that they are the rightful Muthavalli of the Mosque and not the Sangham. However, nothing has been brought on

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WPC 38427/16

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record to show if the Tribunal has passed any further orders on that. Until such time as the Tribunal does not pass an order in favour of the second respondent or against the petitioner, the status as is now continuing with respect to the Muthavalliship of the Mosque, as is now recognised by the Board, would have to continue notwithstanding the registration of the list of members of either the petitioner or the second respondent.

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I have no doubt that the registration of the list of office bearers of a society is purely an internal issue. A list of the society can be objected to only by a person claiming to be either a member of the society or being an office bearer of that society. It cannot be objected to by another society or by the members of another society and I do not know how such objection can be maintained. In this case, I notice that the objections are raised by either side only because they think that these two societies are one and the same. There is absolutely no basis for this

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WPC 38427/16 16

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assumption because both the societies have different registration numbers and are, therefore, enjoined by the Act to prefer and obtain registration of the list of office bearers under the provisions of the Act. In such view of the matter, I cannot find anything wrong with Exhibit P7 order, even though I notice that it has been challenged also for the reason that it modifies an earlier order passed by the same authority and that such action is without jurisdiction. I have to notice this contention because the learned Senior Counsel for the petitioner says that that on an earlier occasion the same authority had denied registration of the list of office bearers of the Namskara Palli Committee, as is evident from Exhibit P2. I have no doubt in my mind that whatever be the reasons in Exhibit P2, the denial of registration of office bearers in this manner could never have been sustained in law. The subsequent judgments of this Court and all other proceedings at the hands of the authorities, I am of the

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WPC 38427/16

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respectful view, proceeded without noticing that registration of the members of the society under Section 4 of the Act is a private issue between the members of that society and nothing else. I am sure that the authorities as well as this Court, while considering these issues, were unfortunately misdirected by the posturing of the parties that these two societies are competing for the same space and because they had held out to the world as being one and overlapping in operational realm over each other.

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The consequences of the summation of all the above observations on facts and law is that Exhibit P7 order will survive but that the Namskara Palli Committee cannot and will not stake any claim for Muthavalliship of the Mosque or the other Wakf properties based on this judgment or based on the fact that their list of office bearers has been registered under Section 4 of the Act. Their claim for Muthavalliship will exclusively depend

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WPC 38427/16

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upon the fate of O.S.No.44/2012, now pending before the Wakf Tribunal, Kozhikode.

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Before parting, as I have noticed above, if both the societies are in fact showing the same building, albeit, with different building numbers, then it is imperative upon the first respondent to look into that issue immediately without wasting any further time by causing an inspection, if required. The first respondent shall verify whether both these societies are functioning from the same building or whether the numbers shown in their respective documents are of the same building, one prior to the quinquennial revision and the other post such revision as is contended herein. If that be so, after such an inquiry being conducted by the first respondent, then he shall issue necessary orders to the Namskara Palli Committee to amend their registration documents and to show another space or building as their office, which is completely distinct from the one that is being used by the

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WPC 38427/16

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Sangham and this exercise shall be completed by the first respondent not later than one month from the date of receipt a copy of this judgment. I hope that in the interest of peace and tranquility, the second respondent will abide by such lawful directions as are given by the first respondent in this regard and that they will not continue to be intransigent and impugn such orders on technical reasons.

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I am sure, this is the best way forward for both the societies and in the best interest of the Mosque and the Wakf properties, since such properties will have to be manged under the rule of law and under the sanction and mandate of the applicable Act, Rules and Regulations. This is the endeavour in this judgment and it is desirable that the authorities also bestow their attentive consideration to these issues to ensure that there is no fracas in future between the members of these two distinct societies.

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WPC 38427/16

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The writ petition is ordered as above. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs.

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Devan Ramachandran, Judge

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tkv

Moozhikkal Aboobacker v. the District Registrar (General)

Case brief

What is this about?

What did the court decide?

Moozhikkal Aboobacker v. the District Registrar (General)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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