Quashed

M.v.Alu Haji v. the Chief Executive Officer, Kerala State Waqf Board

Kerala HC8 Feb 2018WP(C)/36204/2017

Case brief

AI extract

What is this about?

This court quashed an interim order passed by the Chief Executive Officer of Kerala State Waqf Board. The court held the order was ultra vires as the CEO lacked quasi-judicial power under the Waqf Act and vitiated by denial of natural justice.

What did the court decide?

Interim order passed by the Chief Executive Officer (Ex P16) was quashed. Waqf Board directed to decide the original petition within two months.

M.v.Alu Haji Vs the Chief Executive Officer, Kerala State… — Quashing and FIR | 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

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THE HONOURABLE MR. JUSTICE A.M.BABU

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THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939

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WP(C).No. 36204 of 2017 (AGAINST THE ORDER DATED 7.11.2017 BY THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD, IN I.A. NO.101/2017 IN OP NO.122/2017 ON THE FILES OF THE KERALA STATE WAQF BOARD, ERNAKULAM)

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PETITIONER(S)

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1 M.V.ALU HAJI

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AGED 80 YEARS, S/O. MOOSA MUSLIAR, VENMADATHIL, PUNNAYUR

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P.O., THRISSUR DISTRICT, PIN-679562, PRESIDENT, PUNNAYUR

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VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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2 M. P. KUNJUTTY HAJI,

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AGED 65 YEARS, S/O. MOIDUNNI HAJI, PARAYIRIKKAL, PUNNAYUR

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P.O., THRISSUR DISTRICT, PIN-679562, TREASURER, PUNNAYUR

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VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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3 A. K. ABOOBACKER,

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AGED 78 YEARS, S/O. MUHAMMED, ARIKKATTAYIL, PUNNAYUR P.O.,

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THRISSUR DISTRICT, PIN-679562, VICE PRESIDENT, PUNNAYUR

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VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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4 KUNJU HAJI P.,

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AGED 71, S/O. UMMER HAJI, POKKULANGARA HOUSE, PUNNAYUR

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P.O., THRISSUR DISTRICT, PIN-679562, VICE PRESIDENT, PUNNAYUR

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VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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5 C. P. POKKUTTY,

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AGED 61 YEARS, S/O. MONUTTY CHANDANAPPARAMBIL, PUNNAYUR

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P.O., THRISSUR DISTRICT, PIN 679562, GENERAL SECRETARY,

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PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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6 M. C. ABDULLA KUTTY,

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AGED 68 YEARS, S/O. MUHAMMED, CHETTARAYIL HOUSE,

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PUNNAYUR P.O., THRISSUR DISTRICT, PIN-679562, JOINT SECRETARY,

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PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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7 V. K. ABU BACKER,

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AGED 68 YEARS, S/O. KUNJUMON, VARIATHAYIL, EDAKKARA P.O.,

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THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR VADAKKE

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EDAKKARA MUSLIM JAMAATH SAMITHI.

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8 P. K. KUNJU, AGED 75 YEARS, S/O. POKKAR, KANJIRAPULLIL, EDAKKARA P.O., THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR VADAKKE

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EDAKKARA MUSLIM JAMAATH SAMITHI.

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9 C. P. MUHAMMED ALI,

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AGED 78 YEARS, S/O. MONOOTTY, CHANDANAPARAMBIL,

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PUNNAYUR P.O., THRISSUR DISTRICT, PIN-676562, EC MEMBER,

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PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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WP(C).No. 36204 of 2017 (A)

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10 M. P. KUNJIMON, AGED 68 YEARS, S/O. MOIDUNNY, POKKULANGARA HOUSE, PUNNAYUR P.O., THRISSUR DISTRICT, PIN-679562, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI. 11 BAPPU HAJI, AGED 70 YEARS, S/O. KHADER, KOOLIYATTU, PUNNAYUR P.O., THRISSUR DISTRICT, PIN-679562, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI. 12 K. V. ABOOBACKER, AGED 58 YEARS, S/O. KADER, VEETTIPPARAMBIL, PUNNAYUR P.O., THRISSUR DISTRICT, PIN-679562, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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13 KUNJUTTY, AGED 55 YEARS, S/O. AYAMMU, MUKKANDATH, PUNNAYUR P.O., THRISSUR DISTRICT, PIN-676562, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI. 14 Y. C. MANSOOR, AGED 43 YEARS, S/O. YUSEF, EACHIYIL, EDAKKARA P.O., THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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15 KUNJUMUHAMMED HAJI, AGED 75 YEARS, S/O. KOTTARAPPATTU HOUSE, EDAKKARA P.O., THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI. 16 PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI, REPRESENTED BY ITS SECRETARY, C. P. POKKUTTY, AGED 65 YEARS, S/O. MONOOTTY, CHANDANAPARAMBIL, PUNNAYUR P.O., THRISSUR DISTRICT, PIN-679562.

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BY ADVS.SRI.K.PAUL KURIAKOSE SRI.ELDO KURIAKOSE SRI.K.A.ANISH SRI.T.K.HASSAN SRI.K.HABEEBULLA SRI.T.A.RAFEEK (CHERTHALA)

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RESPONDENT(S):

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THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD V I P ROAD, KALOOR, KOCHI-682017.

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THE KERALA STATE WAQF BOARD, REPRESENTED BY CHIEF EXECUTIVE OFFICER, V I P ROAD, KALOOR, KOCHI-682017.

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USMAN P., AGED 44 YEARS, S/O. UMMER, PULIKKAPPARAMBIL HOUSE, PUNNAYUR P.O., THRISSUR DISTRICT, PIN-679562.

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ABDUL KADER HAJI, AGED 50 YEARS, PANAMTHARA HOUSE EDAKKARA P.O., THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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WP(C).No. 36204 of 2017 (A)

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JALEEL, AGED 45 YEARS, S/O. KUNJIMON, KUNNAMBATH EDAKKARA P.O., THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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ASHKAR,

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AGED 38 YEARS, S/O. MUHAMMED ALI, KUNNAMBATH EDAKKARA

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P.O., THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR

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VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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SHAMSUDDIN, AGED 45 YEARS, S/O. AALU, KUNNAMBATH, EDAKKARA P.O., THRISSUR DISTRICT, PIN-680518, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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BABU, AGED 50 YEARS, S/O. ABOOTTY, MACHINGAL HOUSE, PUNNAYUR P.O., THRISSUR DISTRICT, PIN-679562, EC MEMBER, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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A. P. ISMAIL HAJI, AGED 60 YEARS, S/O. IBRAHIMKUTTY HAJI, ELAYADATH PUTHEN VEETTIL HOUSE, EDAKKARA P.O., THRISSUR DISTRICT, PIN-680518, JOINT SECRETARY, PUNNAYUR VADAKKE EDAKKARA MUSLIM JAMAATH SAMITHI.

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R4-R9 BY ADV. SRI.S.SREEKUMAR (SR.) R4-R9 BY ADV. SRI.P.MARTIN JOSE R4-R9 BY ADV. SRI.P.PRIJITH R4-R9 BY ADV. SRI.THOMAS P.KURUVILLA R3 BY ADV. SRI.ABDUL JALEEL.A R3 BY ADV. SMT.M.A.SULFIA R1,R2 BY ADV. SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 36204 of 2017 (A)

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PETITIONER(S)'	APPENDIX EXHIBITS
EXHIBIT P1	PHOTOSTAT TRUE COPY OF BYE-LAW OF THE 16TH PETITIONER.
EXHIBIT P2	PHOTOSTAT TRUE COPY OF MINUTES BOOK WHICH RECORDED THE PROCEEDINGS OF THE EXECUTIVE COMMITTEE MEETING OF THE 16TH PETITIONER HELD ON 7.10.2017.
EXHIBIT P3	PHOTOSTAT TRUE COPY OF CAVEAT PETITION FILED BY THE 4TH RESPONDENT, RECEIVED BY THE 7TH PETITIONER, SENT BY THE SAME COUNSEL WHO FILED THE O.P. NO.122 OF 2017.
EXHIBIT P3(A)	TRUE PHOTOSTAT COPY OF THE ENVELOPE IN WHICH THE EXHIBIT P3 WAS RECEIVED BY THE 7TH PETITIONER.
EXHIBIT P4	PHOTOSTAT TRUE COPY OF LETTER DATED 25.10.2017 SENT TO THE DISTRICT REGISTRAR, THRISSUR INFORMING THE ELECTION OF OFFICE BEARERS FOR THE YEAR 2017-2018.
EXHIBIT P5	PHOTOSTAT TRUE COPY OF COMPLAINT LETTER FORWARDED TO THE 1ST RESPONDENT DATED 26.10.2017 BY COURIER.
EXHIBIT P6	PHOTOSTAT TRUE COPY OF ACKNOWLEDGEMENT RECEIVED FROM THE DIVISIONAL OFFICE OF THE 2ND RESPONDENT AT THRISSUR.
EXHIBIT P7	PHOTOSTAT TRUE COPY OF ACKNOWLEDGEMENTS RECEIVED FROM THE CIRCLE INSPECTOR OF POLICE, CHAVAKKAD.
EXHIBIT P8	PHOTOSTAT TRUE COPY OF THE ACKNOWLEDGEMENTS RECEIVED FROM THE DISTRICT REGISTRAR, THRISSUR.
EXHIBIT P9	PHOTOSTAT TRUE COPY OF NOTICE DATED 04.11.2017 ISSUED TO ALL THE OFFICE BEARERS AND OTHER COMMITTEE MEMBERS.
EXHIBIT P10	PHOTOSTAT TRUE COPY OF O. P. NO.122 OF 2017 BEFORE THE 2ND RESPONDENT FILED BY THE 3RD RESPONDENT.
EXHIBIT P11	PHOTOSTAT TRUE COPY OF I. A. NO.101 OF 2017 IN O. P. NO.122 OF 2017.
EXHIBIT P12	PHOTOSTAT TRUE COPY OF I.A.NO.103 OF 2017 IN O.P.NO.122 OF 2017.
EXHIBIT P13	TRUE PHOTOSTAT COPY OF THE I.A NO.102 OF 2017 IN THE O. P. NO.122 OF 2017.

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WP(C).No. 36204 of 2017 (A)

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EXHIBIT P14 PHOTOSTAT TRUE COPY OF NOTICE DATED 1.11.2017 ISSUED BY THE 4TH RESPONDENT FOR CONVENING A GENERAL BODY MEETING ON 12.11.2017.

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EXHIBIT P15	PHOTOSTAT	TRUE COPY	OF MINUTES OF THE MEETING
	HELD ON 01	.10.2017,	PRODUCED BY THE 3RD
	RESPONDENT 2017.	AS EXHIBI	T P2 ALONG WITH O.P.NO.122 OF
EXHIBIT P16	PHOTOSTAT	TRUE COPY	OF THE ORDER PURPORTED TO
	BE PASSED	BY THE 1ST	RESPONDENT ON 07.11.2017 AND
	OBTAINED B	Y THE PETI	TIONERS.

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EXHIBIT P17 PHOTOSTAT TRUE COPY OF LETTER DATED 26.12.2017 ISSUED BY THE DISTRICT REGISTRAR, THRISSUR CERTIFYING THAT THE 16TH PETITIONER JAMAATH HAD FILED AMENDMENT TO THE BYE-LAW ON 26.8.2014.

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EXHIBIT P18 PHOTOSTAT TRUE COPY OF MEMORANDUM DATED 11.12.2017 SIGNED BY 124 MEMBERS OF THE JAMAATH.

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RESPONDENTS EXHIBITS:

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EXHIBIT R4 (A) TRUE COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE DATED 15.8.2014 EXHIBIT R4 (B) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 7.10.2017 EXHIBIT R4 (C ) TRUE COPY OF THE MASS PETITION EXHIBIT R4 (D) TRUE COPY OF THE G.O NO.2150 DATED 5.10.2017 EXHIBIT R3 (1) TRUE COPY OF THE GENERAL BODY MEETING OF THE 16TH RESPONDENT JAMA ATH DATED 15.8.2014 EXHIBIT R3(2) TRUE COPY OF THE MASS PETITION EXHIBIT R3 (3) TRUE COPY OF THE MINUTES OF THE EXECUTIVE MEETING DATED 7.10.2017. EXHIBIT R3 (4) TRUE COPY OF THE ATTENDANCE OF THE MEETING DATED 7.10.2017 OF THE EXECUTIVE MEMBERS SO ELECTED BY THE GENERAL BODY. EXHIBIT R3(5) TRUE COPY OF THE G.O NO.2150 DATED 5.10.2017. EXHIBIT R1 TRUE COPY OF THE G.O NO.2150 DATED 5.10.2017 PUBLISHED IN THE GAZETTE.

SKS

TRUE COPY

P.A TO JUDGE

K.HARILAL & A.M.BABU, JJ. --------------------------W.P(C) No. 36204 of 2017

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--------------------------Dated this the 8^th day of February, 2018

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JUDGMENT

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K.Harilal, J.

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The petitioners are the respondents in I.A 101/2017 and I.A 103/2017 in OP 122/2017 on the files of the Kerala Waqf Board. This original petition is filed under Article 226 of the Constitution of India challenging the impugned order passed in the aforesaid interlocutory applications by the first respondent/Chief Executive Officer.

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OP 122/2017 was filed by the third respondent herein, seeking to pass orders declaring that the general body meeting of the first respondent Jama-ath convened on 7.11.2017 and Ext P2 minutes of the said meeting are illegal and the same be declared null and void and to direct the second respondent to convene an urgent general body meeting of the first respondent Jama-ath as proposed to be held on 12.11.2017, under the supervision and control of the observer appointed by the Board and to pass an order restraining the respondents from convening any meeting in the so-called Executive Committee proposed to

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W.P(C) No. 36204 of 2017

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be held on 7.11.2017 as per Ext P5 and other ancillary reliefs.

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According to the averments in the original petition

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No.122/2017, on 1.10.2017 a general body meeting of the members of the Mahal as per Ext P1 bye-law was convened and the general body unanimously resolved to continue the existing committee as such for a further term of one year. But, the executive committee held on 7.10.2017 took a decision to conduct election to office bearers, contrary to the decision taken by the general body meeting held on 1.10.2017. Therefore, the 4^th respondent convened a general body meeting on 12.11.2017. There was no election to the executive committee on 7.10.2017. Therefore they sought an order restraining the respondents from conducting the executive meeting called on the basis of Ext P5 notice and to depute the officer for attending the general body meeting to be held on 12.11.2017 called as per Ext P4. With the aforesaid averments they filed the aforementioned interlocutory applications seeking interim reliefs and the Chief Executive Officer passed the impugned order as prayed for.

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In this writ petition challenging Ext P16 interim order allowing the said prayer, it is averred that a general body meeting was held on 1.10.2017 and the existing members of the erstwhile committee were elected again to the executive committee

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W.P(C) No. 36204 of 2017

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unanimously. Thereafter, office bearers were elected on 7.10.2017. At that time the 4^th respondent insisted for electing him as General Secretary for the next term and the executive committee refused the said request of the 4^th respondent. Infuriated by the said refusal of his demand, he walked out of the executive committee meeting with minutes book and thereafter he called another general body meeting on 12.11.2017; but, election to the office bearers was held, after his walkout. According to them, the meeting which is scheduled to be held on 12.11.2017 is in violation of the election held to the posts of office bearers on 7.10.2017. Thus, the question to be considered is whether Ext P16 order passed by the Chief Executive Officer is legally sustainable or not.

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

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Both parties admit that on 1.10.2017 the general body meeting of the Jamaath was held and the members unanimously resolved and allowed the existing committee to continue for a further term of one year. The question in controversy centers around the election to the officer bearers of the executive committee. According to the petitioners, office bearers were elected in the executive meeting held on 7.10.2017. Though, the

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W.P(C) No. 36204 of 2017

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4^th respondent insisted for electing him as its Secretary, for a further term, the members refused the said request and he walked out of the general body meeting with the minutes book. But according to the respondents, there was no need to conduct election to office bearers as the general body meeting held on 1.10.2017 unanimously allowed the existing committee with office bearers to continue for a further term.

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Going by Ext P16, it could be seen that the Chief Executive Officer passed the impugned order without conducting any inquiry as to what happened on 7.10.2017 in the executive committee meeting. So also no opportunity was given to the petitioners herein for submitting their objection to the original petition or the interlocutory applications filed therein. Put it differently, an opportunity of being heard was not given to the petitioners herein, before passing the impugned order and the impugned order was passed without conducting any inquiry on the disputed factual issue. Even though, in the impugned order, the Chief Executive Officer has stated that he had perused the documents, none of those documents were seen referred to in the impugned order. When there was a factual issue, the Chief Executive Officer cannot be justified in passing such an interim order without affording an opportunity of being heard to the

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W.P(C) No. 36204 of 2017

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opposite party or conducting any enquiry on the disputed facts. Therefore, we find that the impugned order is vitiated by denial of natural justice and equity.

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That apart, the learned counsel for the petitioners submitted that the Chief Executive Officer has no jurisdiction and power to pass such an interim order in an original petition filed before the Waqf Board under Sec.32 of the Waqf Act. According to them, the Chief Executive Officer has usurped the powers of the Waqf Board, while the Board was not sitting, without any authority. Therefore, Ext P16 interim order is per se illegal and liable to be quashed at the threshold on the ground that the said order is one passed without any authority under law. On the other hand, the learned senior counsel appearing for the respondents drew our attention to Ext R3 (5) gazette notification and contended that as per the said notification, which was issued under Sec.27 of the Waqf Act, 1995, read with Rule 115 of the Kerala Waqf Rules, the Chief Executive Officer has the power to pass such an order, while the Board was not in sitting. It is submitted that the powers under Sec.32 (2) of the Waqf Act was delegated to the Chief Executive Officer under the said notification and in exercise of the power conferred under the said notification the Chief Executive Officer can pass an interim order

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W.P(C) No. 36204 of 2017

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considering the urgency of the matter. Thus, the Chief Executive Officer is justified in passing Ext P16 order, the learned senior counsel submits.

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We have meticulously gone through Secs 27, 32 (2), and 38 of the Waqf Act, rule 115 of the Waqf Rules and Ext R3 (5) notification issued in exercise of the powers conferred under Sec.27 of the Waqf Act. According to Ext R3 (5) notification, the powers and duties under Secs 32 (2) and 38 of the Waqf Act are delegated to the Chief Executive Officer. But on an analysis of the nature of powers granted under Sec.32(2), we are of the opinion that those powers are confined to administrative matters only and the Chief Executive Officer has no power to pass any orders in exercise of quasi-judicial power vested with the Waqf Board under Sec.32 (2) of the Waqf Act. Merely on the reason that the Board is not sitting or transacting business, the Chief Executive Officer cannot usurp the powers of the Board in quasi-judicial matters pending before the Board. The Chief Executive Officer has no power to pass interim orders in the original petitions pertaining to quasi-judicial disputes pending consideration of the Board. What can be delegated to the Chief Executive Officer under Secs 32 (2) and 38 is the power to pass orders on day-to-day administrative matters only and it is only delegated by Ext R3

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W.P(C) No. 36204 of 2017

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(5) notification. In the above view, we find that Ext P16 impugned order passed by the Chief Executive Officer is per se illegal and liable to be set aside and we do so.

¶108

However, the Waqf Board is directed to consider and pass orders on OP 122/2017 at the earliest, at any rate, within a period of two month from today, after affording an opportunity of being heard to both parties. If the parties want to adduce evidence the time to dispose of the original petition will stand extended for a further period of one month. The parties shall appear before the Waqf Board on 16.3.2018.

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The writ petition is disposed of as above.

sd/-

K.Harilal Judge

sd/-

A.M.Babu Judge

sks/17.2.2018

M.v.Alu Haji v. the Chief Executive Officer, Kerala State Waqf Board

Case brief

What is this about?

What did the court decide?

M.v.Alu Haji v. the Chief Executive Officer, Kerala State Waqf Board

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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