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Chinnakkada Muslim Jama Ath v. the Chief Executive Officer, Kerala State Wakf Board

Kerala HC2 Feb 2018OP (WAKF)/66/2017

Case brief

AI extract

What is this about?

The High Court set aside the Waqf Tribunal's order which rejected a stay application against the Board's appointment of an Executive Officer. The Court held the Tribunal erred in affinding the appointment valid without examining factual grounds, especially as a new committee had assumed charge via election.

What did the court decide?

Impugned order of the Tribunal set aside; stay on the Board's appointment of Executive Officer till disposal of the original petition.

Chinnakkada Muslim Jama Ath Vs the… — Constitutional and Fundamental Rights | Kerala HC (2018)

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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 K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU

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FRIDAY, THE 2ND DAY OF FEBRUARY 2018 / 13TH MAGHA, 1939

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OP (WT).No. 66 of 2017 O.A.8/2017 DATED 8.12.2017 OF WAKF TRIBUNAL, KOLLAM

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PETITIONERS/APPELLANTS:

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1 CHINNAKKADA MUSLIM JAMA ATH REPRESENTED BY ITS PRESIDENT, CHINNAKKADA MUSLIM JAMA ATH COMMITTEE, KOLLAM.691001

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2 THE SECRETARY CHINNAKKADA MUSLIM JAMA ATH COMMITTEE, CHINNAKKADA PO, KOLLAM.691001

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3 THE TREASURER CHINNAKKADA MUSLIM JAMA ATH COMMITTEE, CHINNAKKADA PO, KOLLAM.691001

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BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.MANJUNATH MENON SRI.P.MARTIN JOSE

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RESPONDENTS/RESPONDENTS:

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THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, ERNAKULAM.

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SALIM FEWRHAD, S/O KASSIM, FOUSYA MANZIL, NEW AISHWARYA NAGAR-135, VADAKKEVILA PO, PALLIMUKU, KOLLAM.

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R2 BY ADV. SRI.BABU KARUKAPADATH R2 BY ADV. SMT.M.A.VAHEEDA BABU R2 BY ADV. SRI.E.M.ABDUL KHADER R2 BY ADV. SRI.K.M.FAISAL (KALAMASSERY) R2 BY ADV. SRI.P.U.VINOD KUMAR R2 BY ADV. SRI.MITHUN BABY JOHN R2 BY ADV. SMT.AMRIN FATHIMA R2 BY ADV. SRI.RAHUL ROY R1 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD

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THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 02-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (WT).No. 66 of 2017

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APPENDIX

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EXHIBITS

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P1TRUE COPY OF REPORT DATED 8.8.2016 FILED BY THE ADVOCATE COMMISSIONER

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P2TRUE COPY OF O.P.12 OF 2016 FILED BY R2 BEFORE THE KERALA STATE WAKF BOARD OBTAINED UNDER RIGHT TO INFORMATION ACT.

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P3TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE PRESIDENT AND TREASURER IN OP 12 OF 2016 BEFORE THE KERALA STATE WAKF BOARD OBTAINED UNDER RIGHT TO INFORMATION ACT.

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P4TRUE COPY OF ORDER DATED 18.9.2017 ISSUED BY THE KERALA STATE WAKF BOARD

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P5TRUE COPY OF O.A.8/2017 FILED BY THE PETITIONERS BEFORE THE WAKF TRIBUNAL, KOLLAM

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P6TRUE COPY OF I.A.489/2017 IN O.A.8/2017 FILED BY THE PETITIONERS BEFORE THE WAKF TRIBUNAL, KOLLAM

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P7TRUE COPY OF ORDER IN I.A.489/2017 IN O.A.A8/2017 DATED 8.12.2017 OF THE WAKF TRIBUNAL, KOLLAM

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/True Copy/

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P.S.To Judge

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K.HARILAL & A.M.BABU, JJ.

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- - - - O.P.(WT).66 of 2017 - - - - - - - - - - - - - - - - Dated : 2^nd February, 2018

JUDGMENT

Harilal, J

1.The first petitioner is the President and petitioners 2 and 3 are the Secretary and Treasurer of the Chinnakkada Muslim Jama Ath Committee, Kollam. This original petition was filed to set aside Ext.P7 order passed by the Waqf Tribunal, Kollam. According to the averments in the original petition, a suit as O.S.38/2015 was filed before the Waqf Tribunal, Kollam, alleging misfeasance and malfeasance, on the then existing committee. The Waqf Tribunal, as per the order in I.A.No.17 of 2016 in the said O.S. appointed an Advocate Commissioner to conduct the election and the Advocate Commissioner conducted election on 7.8.2016 and a new committee assumed charge. During the pendency of O.S.38/2015, the second

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OP(WT).66/2017

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respondent filed Ext.P2 petition on 14.1.2016 before the Waqf Board, alleging mismanagement against the then committee. Even though, the committee against which the allegations were raised in Ext.P2 ceased to exist as on 7.8.2016, the Board as per Ext.P4 appointed an Executive Officer for the management of the said committee. Ext.P4 order was challenged in Ext.P5 before the tribunal and sought for stay of Ext.P4. The tribunal proceeded in an assumption that Ext.P2 is against the present committee. On the above view, the Tribunal passed Ext.P7 order rejecting the application to stay the operation of Ext.P4 order. The legality and correctness of Ext.P7 order is challenged in this original petition, filed under Article 226 of the Constitution of India.

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2.Heard the learned counsel for the petitioners and the learned counsel for the respondents.

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3.It is the specific case of the petitioners that

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OP(WT).66/2017

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O.P.12/2016 was filed, alleging misfeasance and malfeasance of the earlier committee and a new committee has assumed charge, pursuant to the election conducted on 7.8.2016 under the supervision of Advocate Commissioner. But, without considering the assumption of a new committee, the Waqf Board has appointed an Executive Officer on an assumption that the earlier committee was in existence and continuing, at the time of passing Ext.P4 order. But, going by Ext.P7 order passed by the Tribunal, in paragraph 6 of the order, the Tribunal observed that subsequent to the election, the first respondent again filed O.P.12/2016 before the second respondent Waqf Board, alleging that the funds of the Jama-ath are mis-appropriated by the present committee and there must be an Executive Officer for monitoring the accounts.

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4.But, Ext.P2 order dated 22.1.2016 shows that O.P.12/2016 was filed much earlier before the assumption of present office bearers in the office.

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OP(WT).66/2017

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Indisputably, the election was held on 7.8.2016. So we find that the tribunal erroneously held that the impugned order was passed in the O.P filed subsequent to the election and the issue involved in I.A.489/2017 was considered in such a view only. On a perusal of the impugned order it appears that the tribunal has considered the sources and extent of power of the Chief Executive Officer to appoint an Executive Officer to inspect waqf properties and found that the Chief Executive Officer has power to appoint an Executive Officer to inspect and monitor waqf properties. But, the tribunal omitted to consider the circumstances or the grounds under which such powers can be exercised and whether there is any circumstance or ground to exercise such powers in the instant case. It is to be remembered that merely on the reason that power has been conferred to an authority, the authority cannot exercise such powers at all times without considering the circumstances or grounds for which such powers can be exercised. In the instant case

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OP(WT).66/2017

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no attempt was made to examine the presence of any circumstances warranting appointment of an Executive Officer.

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5.That apart on a reading of Sections 33 and 38 of the Waqf Act, it could be seen that Sec.33 deals with the powers of inspection by the Chief Executive Officer or a person authorized by him and Sec.38 deals with the power of the Board to appoint Executive Officer. In the instant case, the Executive Officer was appointed by the Board in exercise of the power under Sec.38 of the Waqf Act. So the tribunal ought to have arrived at a factual satisfaction as to whether there was any circumstance warranting appointment of an Executive Officer for the wakf before affirming Ext.P4 order. Thus, we are not satisfied with the impugned order under challenge.

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6.Consequently, Ext.P7 order is set aside. The tribunal is directed to consider and dispose of

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OP(WT).66/2017

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O.A.8/2017 as expeditiously as possible, within a period of two months from the date of receipt of a copy of this judgment. Operation of Ext.P4 will stand stayed till the disposal of O.A.8/2017.

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Original petition is disposed of as above.

Sd/-

K.HARILAL Judge

Sd/-

A.M.BABU Judge

Mrcs/3.2

/True copy/

P.S.To Judge

Chinnakkada Muslim Jama Ath v. the Chief Executive Officer, Kerala State Wakf Board

Case brief

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Chinnakkada Muslim Jama Ath v. the Chief Executive Officer, Kerala State Wakf Board

Case brief

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