The court set aside an election notification that introduced an illegal panel system violating waqf byelaws directing the respondent board to conduct a fresh election via general body.
Ext.P6 notification set aside; 1st respondent directed to appoint Executive Officer and convene general body for fresh election within one month.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU
TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939
WP(C).No. 1776 of 2018
PETITIONER
P.S.MOIDEENKUTTY HAJI S/O.P.SULAIMAN, AGED 70 YEARS, PRESIDENT, PALLANKODE MUHIYIDHEEN JAMAATH PALLI COMMITTEE, PALLANKODE, ADOOR VILLAGE, URUDOOR PO, KASARGODE 671543
BY ADVS.SRI.A.V.THOMAS (SR.) SRI.K.ANAND SRI.BENNY ANTONY PAREL SRI.JOSWIN THAMBI KUNNATH
RESPONDENTS
WP(C).No. 1776 of 2018
-2-
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 0602-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 1776 of 2018 (V)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE BYELAW EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING HELD ON 24.10.2016 EXHIBIT P3 TRUE COPY OF THE OP.237/2017 BEFORE THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE ORDER IN IA.NO. 123/2017 IN OP.NO. 237/2017 DATED 13.09.2017 EXHIBIT P5 TRUE COPY OF THE SAID ORDER IN OP.NO. 237/2017 DATED 06.12.2017 EXHIBIT P6 TRUE COPY OF THE ELECTION NOTIFICATION DATED 06.01.2018
/True copy/
P.S.To Judge
K.HARILAL & A.M.BABU, JJ.
JUDGMENT
Harilal, J
1.According to the petitioner, he is the president of 'Pallankode Muhiyudheen Jama-ath Palli Committee'. The Pallankode Muhiyudheen jama-ath palli and its properties have obtained registration under the Kerala Waqf Board and the administration of the waqf is under the byelaw framed in the year 1991. As per the provisions of the byelaw, the terms of committee is for a period of one year and the annual general body is to be held in the month of October in every year. The election has to be taken place in the general body alone. But the 1st respondent now appointed a returning officer to conduct election in violation of clause XIII of Ext.P1 byelaw. The said election was declared on the basis of an order passed in Ext.P3 OP filed by respondents 3 to 8 seeking to appoint an advocate commissioner to call for
WP(C).1776/18
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general body and conduct election to the committee of Jama-ath. The returning officer has issued Ext.P6 election notification, wherein it is shown that the last date for accepting the panel of nomination is on 31.1.2018 and election will be held on 13.2.2018.
2.The grievance of the petitioner is that the panel system introduced by the returning officer is in conflict with clause XIII of Ext.P1 byelaw. If the returning officer proceeds with Ext.P6, the mahal members who want to conduct the election without getting included in a panel, will be deprived of an opportunity to contest in the election and thereby they will be put to irreparable hardship and great loss. Hence they prayed for setting aside the entire proceedings under Ext.P6 election notifications and to direct the 1st respondent to conduct fresh election in accordance with Ext.P1 bylaw.
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learned standing counsel for the 1st respondent.
5.It is not disputed that the 1st respondent has appointed a returning officer to conduct election and the returning officer has issued Ext.P6 election notification, which contains a schedule of the entire procedure, under which election will be held. The election is scheduled to be held on 13.2.2018. We have meticulously gone through clause XIII of Ext.P1 bylaw. As rightly pointed out by the learned counsel for the petitioner, going by the said clause, we find that there is no provision in the said byelaw to conduct election on the basis of panel system. As per clause XIII, the general body is vested with power to elect
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advisors and working committee members on the basis of majority in the general body.
6.We are of the opinion that the panel system would curtail the right of a member to contest the election if he is not included in any of the panel and the said illegality would go to the root of the election procedure contemplated under Ext.P1. We have to remind ourselves the principle that if election procedure has commenced, normally the court of law will not interfere with the election procedure, unless there is sufficient gross illegality or impropriety in the procedure of election. In the instant case, we find that the procedure contemplated in Ext.P6 is illegal and contrary to the mode of election contemplated under clause XIII of Ext.P1. That apart the right of a person to contest the election is narrow down, by the introduction of panel system by the Returning Officer, without the support of the byelaws. Therefore, this Court is inclined to interfere with the election procedure scheduled under Ext.P6.
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7.Consequently Ext.P6 notification and all
proceedings thereunder are set aside. The 1st respondent is further directed to appoint an Executive Officer to convene general body of the mahal and he shall convene the general body within a period of one month from today to conduct a fresh election. The returning officer appointed by the 1st respondent will continue in office but he will act only if an election is found necessary in the general body. The returning officer is at liberty to decide the course of action to be taken to conduct an election.
K.HARILAL Judge
Sd/-
A.M.BABU Judge
Mrcs/6.2.
/True copy/
Sd/- P.S.To Judge
2 issues framed by the court
Whether the election notification introducing a panel system was illegal contrary to the byelaw requiring general body elections.
Whether the writ court has jurisdiction to interfere with the election procedure based on gross illegality.
P.S.MOIDEENKUTTY HAJI
KERALA STATE WAKF BOARD
ABOOBAKER.P.H
ABDULLAKUNHI
ABDUL KADER
KADER
K.HARILAL
A.M.BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
