Disposed

Shanavas M. v. Kanniakulangara Muslim Jama-Ath

Kerala HC18 Jul 2019WP(C)/16338/2019

Case brief

AI extract

What is this about?

The Court dismissed the petitioner's plea to quash the Waqf Board's order appointing a Returning Officer for a Muslim Jama-ath election. An independent Observer was appointed to oversee the upcoming free and fair election. The Court declared the earlier mock election of 31.03.2018 legally void.

What did the court decide?

Appointment of an independent Observer; confirmation that the previous election on 31.03.2018 is void; disposal of the writ petition.

Shanavas M. Vs Kanniakulangara Muslim Jama-Ath — Pension and Retirement Benefits | 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 A.HARIPRASAD

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THE HONOURABLE MRS. JUSTICE SHIRCY V.

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FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941

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WP(C).No.16338 of 2019

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PETITIONER:

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SHANAVAS M.,S/O.MOHAMMED KUNJU, THENGUVILAYAIL,KANYAKULANGARA, VEMBAYAM.P.O., THIRUVANANTHAPURAM DISTRICT,PIN:695 615

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BY ADV. SRI.K.P.SUJESH KUMAR

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RESPONDENTS:

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1 KANNIAKULANGARA MUSLIM JAMA-ATH KANNIAKULANGARA, VEMBAYAM P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT,PIN-695 615, REPRESENTED BY ITS SECRETARY.

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2 KERALA STATE WAQF BOARD, ERNAKULAM, PIN-682 017, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.

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3 WAQF BOARD,DIVISIONAL OFFICE, ARTLEE COMFORT, NALANDA ROAD, P.M.G., VIKASBHAVAN P.O., THIRUVANANTHAPURAM,PIN:695 033, REPRESENTED BY ITS DIVISIONAL OFFICER.

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4 KHALEEL KOYA THANGAL, S/O. FAKHARUDHEEN KOYA HANGAL, SYED BUNGLOW, KANNIAKULANGARA,VEMBAYAM P.O., THIRUVANANTHAPURAM DISTRICT,PIN:695 615.

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5 A.YOUSUF,SHEEJA NIVAS, KANNIAKULANGARA, VEMBAYAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN:695 615

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R1 BY ADV.SRI.M.R.SASITH R4 & R5 BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB R2 & R3 BY ADV.SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No.16338 of 2019

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A.HARIPRASAD & SHIRCY V., JJ.

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W.P.(C) No.16338 of 2019

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Dated this the 19^th day of July, 2019

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JUDGMENT

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Hariprasad, J.

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Heard the learned counsel for the petitioner and respondents 1, 4 and 5. Learned Standing Counsel appearing for respondents 2 and 3 is also heard.

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Writ petitioner has approached this Court seeking the following

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reliefs:

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“(i) issue a writ of certiorari or any other appropriate

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writ, direction or order calling upon the records leading to Exhibits P7 order issued by the second respondent and quashing the same

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(ii) issue such other further reliefs as this Honourable

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Court deem fit and proper to grant in the circumstances of the case.”

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Petitioner is a member and beneficiary of 1^st respondent Jama-

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ath and interested in its welfare. Ext.R4(e) is the bye-law governing the Jama-ath. As per Clause 9(ii) of Ext.R4(e), the term of elected committee is three years from 1^st April of every three years. It is the case the petitioner that on 31.03.2018, the tenure of the earlier committee expired and without

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WP(C) No.16338 of 2019

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complying with formalities in the bye-law, especially the provisions in Clause 10, a mock election was conducted and some persons claimed to have been elected. They attempted to assume management of the waqf. It is seen that two suits are pending before the Waqf Tribunal (Exts.P1 and P3). Ext.P2 interim order passed in Ext.P1 suit shows that any election to the waqf will be subject to the decision of the Tribunal.

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Ext.P7 impugned order is passed by the Waqf Board on 18.05.2019. As per Ext.P7, as directed by this Court in W.P.(C) No.42477 of 2018, a Returning Officer was appointed for conducting the election to the 1^st respondent as per bye-law and he started functioning.

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It is seen from the counter affidavit filed by the Waqf Board that

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the Returning Officer has prepared a voters list. The steps taken by the Returning Officer are narrated in paragraphs 4 to 6 of the counter affidavit. Paragraphs 4 to 6 read as follows:

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“4. It is humbly submitted that the Returning Officer has submitted a report dated 26.06.2019 before these respondents. A true copy of the same is produced and marked as Exhibit.R2(A). In the said report, it is stated that, he had taken charge in the waqf on 07.06.2019 after giving proper notice to concerned waqf. He had also submitted that, even though as per bye-law it is the duty of the Managing Committee of the waqf to prepare the Voter's list as they had not prepared the same and also there exist some disputes between the

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WP(C) No.16338 of 2019

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members of the jama ath, the Returning Officer himself had prepared the voters list.

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5. It is also submitted that the Returning Officer had prepared and published the election notification dated 13.06.2019 and also provided time for receiving objections and for entering of new names in the draft voters list on 18.06.2019 and 19.06.2019.

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6. It is further submitted that the Returning Officer had completed all the necessary procedure for completing the election and the said election was scheduled on 07.07.2019. It is also submitted that, all the actions taken by these respondents are in accordance with the direction of this Hon'ble Court in WPC 42477/18. Further, the undue delay in the conduct of election will adversely affect the situation in the waqf.”

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On hearing the learned counsel appearing for all the parties, we understand that everyone wanted a free and fair election to the 1^st respondent. It is asserted by the learned counsel for the petitioner and respondents 4 and 5 that the present persons in management of 1^st respondent were not properly elected and, therefore, a change in the management is required. Having regard to this submission, we find no reason to interfere in the Waqf Board proceedings. In this regard, learned counsel for respondents 4 and 5 relied on two Division Bench decisions of

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this Court in Rasheed A.P.A. v. N.N.Khalid Haji and another (2011 (3) KHC 379) and Abdul Latheef C.K. and others v. Adv. K.M.Haneefa and others (2015(3) KHC 844) , which would fortify our reasoning that the Waqf Board is competent to take appropriate measures for a free and fair election. We find no infirmity in Ext.P7 order. Therefore, the prayer to quash Ext.P7 order cannot be allowed as the Waqf Board has correctly initiated the legal proceedings in this matter. However, it is made clear that all the parties interested in the welfare of the 1^st respondent Jama-ath are free to participate in the election and the Returning Officer will publish another date, in accordance with the bye-law, for conducting the election. Returning Officer shall ensure a free and fair election. It is made clear that the election said to have been held on 31.03.2018 will have no legal effect.

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After dictating the judgment in open court on 18.07.2019, but before signing it, at the request of the learned counsel for the petitioner, we posted the matter to be spoken to on 19.7.2019. The request made by the learned counsel for the petitioner to withdraw the writ petition is stoutly opposed by the learned counsel for the respondents. We also do not deem it fit to grant a permission to the petitioner to withdraw the writ petition. Then, the learned counsel for the petitioner sought indulgence of this Court to appoint an Observer at the time of election. As per the judgment in W.P. (C) No. 42477 of 2018, a Returning Officer was appointed and he has taken steps to take the election forward. The election has to happen on a date as notified in accordance with the bye-law. To alleviate the apprehension in the

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minds of all the parties, it is appropriate that an independent Observer shall oversee the election process to ensure a free and fair election. Adv. Abdul Raoof Pallipath is appointed as Observer. The Returning Officer shall intimate the date of election well in advance to the Observer so that he can be present on the date of election and oversee conduct of the election. A sum of Rs.25,000/- shall be paid by the first respondent Committee to the Observer as remuneration.

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The writ petition is disposed of accordingly.

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All pending interlocutory applications will stand closed.

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A.HARIPRASAD, JUDGE.

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SHIRCY V., JUDGE.

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cks

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WP(C) No.16338 of 2019

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE THE FILE OR THE W 20.03.2018	PLAINT IN O.S.NO 2/2018 ON AQF TRIBUNAL, KOLLAM DATED
EXHIBIT P2	TRUE COPY OF THE THE WAQF TRIBUNAL NO.70/2018IN O.S. THE WAQF TRIBUNAL	INTERIM ORDER PASSED BY , KOLLAM IN IA NO 2/2018 ON THE FILE OF , KOLLAM DATED 20.03.2018
EXHIBIT P3	TRUE COPY OF THE ON THE FILE OR TH DATED 28.07.2018	PLAINT IN O.S.NO 34/2018 E WAQF TRIBUNAL, KOLLAM
EXHIBIT P4	TRUE COPY OF THE BY RESPONDENTS 4 RESPONDENT, DATED	REPRESENTATION SUBMITTED AND 5 BEFORE THE SECOND 31/10/2018
EXHIBIT P5	TRUE COPY OF THE NO.424767/2018 ON HONOURABLE COURT,	JUDGMENT IN WPC THE FILE OF THIS DATED 3/01/2019
EXHIBIT P6	TRUE COPY OF THE FIRST RESPONDENT RESPONDENT,DATED	OBJECTION SUBMITTED BY THE BEFORE THE THIRD 2/06/2019
EXHIBIT P7	TRUE COPY OF THE RESPONDENT,DATED	ORDER PASSED BY THE SECOND 18/05/2019
EXHIBIT P8	TRUE COPY OF THE Returning Officer	NOTICE ISSUED BY THE , DATED 4.06.2019.
EXHIBIT P9	TRUE COPY OF THE THE SECOND RESPON THE FILE OF THE W DATED 15.5.2019.	WRITTEN STATEMENT FILED BY DENT IN WOS NO.314/2019 ON AQF TRIBUNAL, KOZHIKODE,

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RESPONDENTS' EXHIBITS:

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EXT.R2(A) TRUE COPY OF REPORT OF RETURNING OFFICER DATED 29/6/2019

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EXT.R4(a) TRUE COPY OF THE COMMUNICATION DATED 27/02/2019 ISSUED BY THE 3RD RESPONDENT

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EXT.R4(b) TRUE COPY OF THE PROCEEDINGS DATED 18/05/2019 ISSUED BY THE 3RD RESPONDENT

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EXT.R4(c) TRUE COPY OF THE ELECTION NOTIFICATION DATED 13/06/2019 ISSUED BY THE Returning Officer

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EXT.R4(d) TRUE COPY OF THE NOTICE DATED 14/06/2019 ISSUED BY THE Returning Officer

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EXT.R4(e) TRUE COPY OF THE BYE LAW OF THE 1ST RESPONDENT.

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WP(C) No.16338 of 2019 10

Shanavas M. v. Kanniakulangara Muslim Jama-Ath

Case brief

What is this about?

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Shanavas M. v. Kanniakulangara Muslim Jama-Ath

Case brief

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