Dismissed

Shahul Hameed, v. Pezhummoodu Puthan Palli Muslim Jama-Ath

Kerala HC25 Nov 2019CRP(WAKF)/58/2019

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition challenging the Wakf Tribunal's order. The court held that as the Tribunal acted within its jurisdiction and there was no illegality or irregularity in upholding the validity of the byelaws relied upon by the respondents, the revision had no merit.

What did the court decide?

The revision petition was dismissed holding the Tribunal's order was without illegality, impropriety or irregularity.

Shahul Hameed, Vs Pezhummoodu Puthan Palli Muslim… — Writ and Judicial Review | Kerala HC (2019)

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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 C.K.ABDUL REHIM

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

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CRP(WAKF).No.58 OF 2019

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AGAINST THE ORDER/JUDGMENT IN OS 365/2019 OF WAKF TRIBUNAL, KOZHIKODE

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REVISION PETITIONERS/PLAINTIFFS 1, 2 4 & 5 :

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1 SHAHUL HAMEED, AGED 74 YEARS S/O.PEERUKANNU, THANNIPPARA HOUSE, ARYANAD P.O., ARYANAD VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT - 695 542.

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2 ASEES, AGED 50 YEARS S/O.MUHAMMED MOIDEEN M.D., KOLLARUKONAM HOUSE, POOVACHAL P.O., ARYNAD VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM.

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3 M.M.ASHRAF, AGED 54 YEARS

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S/O.SMAK MUSALIYAR, PEZHUMMOODU THAZVARAM HOUSE, KUTTICHAL P.O., MANNURKARA VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT.

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4 ABDUL SALAM, AGED 62 YEARS

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S/O.PEERUKUNNU, THANNIPARA HOUSE, ARYANAD P.O., ARYANAD VILLAGE, KATTAKADA TALUK, THIRUVANANTHAPURAM DISTRICT - 695 542.

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BY ADVS. SRI.S.RAJASEKHARAN NAIR SRI.RAJU SEBASTIAN VADAKKEKKARA SRI.S.KRISHNA KUMAR (MANGALAM) SHRI.SANTHOSH BHASKARAN NAIR SHRI.SABAD K.H. SHRI.BERTRAND BASIL

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CRP(WAKF).No.58 OF 2019

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RESPONDENTS/DEFENDANTS 1 TO 4 AND 3RD PLAINTIFF :-

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1 PEZHUMMOODU PUTHAN PALLI MUSLIM JAMA-ATH, REPRESENTED BY ITS PRESIDENT, PERUNKULAM VILLAGE, KATTAKADA TLAUK, THIRUVANANTHAPURAM DISTRICT - 695 572.

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2 SIDHEEQUAL KABEER, AGED 65 YEARS, S/O.MUHAMMED KASIMPILLA, PRESIDENT, PEZHUMMODU PUTHEN PALLI MUSLIM JAMA-ATH, PERUNKULAM VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT - 695 572.

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3 NOUSHAD, AGED 50 YEARS, S/O.IBRAHIM, SECRETARY, PEZHUMMODU PUTHAN PALLI MUSLIM JAMA-ATH, PERUMKULAM VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT - 695 572.

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4 THE KERALA WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD, KALOOR, ERNAKULAM, PIN - 682 017.

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5 SHANAVAS, S/O.SAINUDHEEN, PUTHENPALLI, HIDAYA MANZIL, POOVACHAL P.O., ARYANAD VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURA - 695 572.

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R1-3 BY ADV. SRI.SIRAJ KAROLY SC ,WAQF BOARD- SRI. T.P.SAJID

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THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP(WAKF).No.58 OF 2019

C.K.ABDUL REHIM

T.V.ANILKUMAR, JJ.

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===================

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CRP(WAKF).No.58 of 2019

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Dated this the 25th day of November 2019

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ORDER

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C.K.ABDUL REHIM, J

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Plaintiffs 1,2, 4 and 5 in O.S.No.365 of 2019 on the files of the Wakf Tribunal, Kozhikode are challenging the judgment dated 17.08.2019. The respondents herein are the defendants before the Tribunal and the 3^rd plaintiff.

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Issue pertains to administration of the I^st respondent Wakf. Allegation before the Tribunal was that the committee headed by the 2^nd respondent/defendant was elected in the year 2009 and thereafter no proper election was conducted. It was alleged that the 2^nd defendant is creating records to show that they were re-elected in a General Body Meeting convened. It was the case of the plaintiffs that defendants 2 and 3 are not competent to become officers of the Jama ath Committee.

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CRP(WAKF).No.58 OF 2019

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Various allegations of misappropriation of funds and non conduct of proper auditing with respect to the accounts etc: are also raised. Hence the suit was filed seeking relief for appointment of an Advocate Commissioner for the conduct of elections to the Managing Committee of the Jama ath, as per the Bye-laws and also to appoint an Auditor to examine the accounts of the I^st defendant Wakf, pertaining to the last 10 years and to realise the amount due from the concerned defendants, if they are formed liable. There was also a relief to declare defendants 2 and 3 as disqualified from holding any post in the Wakf, if it is found that they had caused loss to the Jama-ath.

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Based on the written statement filed and the

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contentions raised by the defendants said Tribunal had framed the following issues for determination in the suit.

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(1) Whether the plaintiffs are entitled to an order to conduct the election to the committee of the Jama-ath through an Advocate appointed by this Court?

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(2) Whether the plaintiffs are entitled to an order for auditing the accounts of the Waqf through an Auditor appointed by the Tribunal and to recover the amount if any found misappropriated from the defendants?

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(3) Whether the plaintiffs are entitled to a decree disqualifying any of the defendants from contesting the election of Jama-ath?

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(4) Reliefs and Costs?

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The Tribunal after recording evidence adduced by both

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sides and on marking of various documents produced by either

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CRP(WAKF).No.58 OF 2019

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side, decreed the suit in part as follows :-

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1. Adv.K.Uvais Khan, Nedumangad is appointed as Returning Officer for conducting election to the managing committee of the 1^st defendant as per Ext.B1 bye-law. 2) Rs.10,000/- shall be paid to the Returning Officer by the plaintiffs as his initial batta.

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1. The expenses for conducting election shall be met from the fund of the 1^st defendant.

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1. The Returning Officer shall complete the election process

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and file the report before this Tribunal within a period of 3 months. 5) The prayer for appointing an Auditor and the disqualification of defendants 2 and 3 are not allowed.

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1. The parties are directed to bear their respective costs.

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The above revision petition is filed challenging the judgment of the Tribunal, mainly on the ground that the Tribunal went highly erred in directing conduct of the elections based on Ext.B1 Bye-laws. It is contended that, the Bye-laws of the Jama-ath which was approved by the General Body convened in the year 2001 is the valid Bye-laws and Ext.B1 is a fabricated document which was produced for the first time before the Tribunal, after institution of the suit. According to the revision petitioners, the members of the Jama-ath was unaware about Ext.B1 and therefore Ext.B1 cannot be accepted as the approved Bye-laws for the administration of the Wakf. According to the revision petitioners, they came to know about Ext.B1 Bye-laws only when the defendants in the suit has taken up their defense.

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CRP(WAKF).No.58 OF 2019

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It is contended that the Tribunal ought to have adjudicated as to whether the defendants have fabricated the Bye-law to get over the rigor of the case. The revision petitioners have also placed a reliance on Ext.A6 report submitted by the Wakf Inspector, dated 27.04.2017, in which it is stated that the Bye-laws in question were approved on 13.04.2001.

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The extractions contained in the impugned judgment about the pleadings before the Tribunal, it is evident that the contention of the plaintiffs was that, the Bye-laws approved in the General Body Meeting held on 13.04.2001 is in force. But in the written statement, it was specifically contended by the defendants 1 to 3 that, amended of the Bye-laws was approved by the General Body Meeting held on 15.08.2003 and on 05.07.2013, and those amendments are in force. According to them, as per the amendment effected in the year 2013, there is no disqualification for the existing members from contesting the elections again. It is contended that in the General Body Meeting held on 11.09.2015, which elected the defendant as office bearers, the plaintiffs 1 to 3 and 5 had also participated and signed the minutes and that the defendants were elected unanimously in the said meeting. The various other allegations

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CRP(WAKF).No.58 OF 2019

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regarding misappropriation etc: were also stoutly refuted.

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It is pertinent to note that, the suit was filed not for any specific relief with respect to the validity or acceptability of the Bye-laws. On the other hand, the relief claimed was only to conduct the election based on the Bye-laws of the Wakf concerned. Averments in the suit was to the effect that, the Bye-laws were approved as early as in the year 2001. Per contra, contentions taken by the defendants were that the Byelaws approved in the year 2001 was subsequently amended in the year 2013 and that the defendants were re-elected on the basis of the said Bye-laws, in the year 2015, in which some of the plaintiffs have also participated. Despite such a controversy remained, the plaintiffs had not sought for framing any issue relating to genuineness of the Bye-laws or with respect to the question regarding authenticity of the amended Bye-laws. When Ext.B1 Bye-laws was produced in evidence from the side of the defendants, the plaintiffs have not objected marking of the said document. The Tribunal had specifically noticed that the defendants 2 and 3 were elected in the General Body Meeting held on 11.09.2015 for a period of 2 years and that the terms of office of the said committee had expired only on 10.09.2017.

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CRP(WAKF).No.58 OF 2019

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The specific finding is to the effect that in the General Body Meeting held on 11.09.2015, in which the defendants were elected as office bearers, the plaintiff have also attended. The Tribunal specifically noted that the plaintiffs 1 to 3 and 5 had signed in the minutes of the said meeting as serial Nos.54, 48, 34 and 32. At the time of marking the said minutes, the plaintiffs have not raised any objection. Therefore, while evaluating the evidence on record, the Tribunal had no occasion to adjudicate upon the controversy regarding genuineness of Ext.B1 Bye-laws produced.

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Position remaining mentioned as above, the question mooted for decision is as to whether a revision is maintainable

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on the grounds now raised, with respect to challenging genuinity of Ext.B1 Bye-laws. It is pertinent to note that, there is no appeal provided against the decision of the Wakf Tribunal and this Court exercising revisional jurisdiction under Section 83(9) of the Act cannot act as an appellate court. A re-evaluation of the evidence on record is not contemplated. In the case at hand, even if a re-appreciation of the evidence is attempted, as mentioned above, there exists no dispute raised or evidence produced effectively challenging the genuineness of Ext.B1 Bye-

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CRP(WAKF).No.58 OF 2019

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laws, from the side of the defendants. Under such circumstances, we cannot find any illegality, impropriety or irregularity with respect to the findings arrived and the reliefs granted.

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Consequently, the revision petition deserves no merits and the same is hereby dismissed. However we make it clear that, the above judgment confirming the judgment of the Wakf Tribunal will not stand in the way of the plaintiffs or other beneficiaries of the Wakf seeking modification of Ext.B1 Byelaws in future, by approaching the appropriate authority.

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Sd/-

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C.K.ABDUL REHIM JUDGE

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Sd/-

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T.V.ANILKUMAR JUDGE

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SMA

Shahul Hameed, v. Pezhummoodu Puthan Palli Muslim Jama-Ath

Case brief

What is this about?

What did the court decide?

Shahul Hameed, v. Pezhummoodu Puthan Palli Muslim Jama-Ath

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

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