Kerala High Court
Abdulsalam vs Abdulsalam on 28 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
CRP(WAKF).No.42 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 13.11.2020 IN
W.O.S.NO.250/2019 OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/ 4TH DEFENDANT :
ABDULSALAM,
AGED 76 YEARS, S/O. ALIYARU KUNHU,
RESIDING AT LASSI MINAR,
KANNANALLOOR P.O.,THADUTHALA VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT,
PIN - 691 576.
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SHRI.P.U.VINOD KUMAR
SMT.ARYA RAGHUNATH
SMT.VAISAKHI V.
SRI.T.M.MUHAMMED MUSTHAQ
SHRI.UNAIS K.P.
RESPONDENT/ PLAINTIFF & DEFENDANTS 1 TO 3 & 5 :
1 ABDULSALAM,
AGED 70 YEARS, S/O.IBRAHIMKUTTY,
(KOLLAN VYDHIYAN PURAYIDAM),
NAZAR MANZIL, KANNANALLOOR P.O.,
THRIKOVILVATTOM VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT,
PIN - 691 576.
2 KANNANALLOOR MUSLIM JAMA-ATH,
REPRESENTED BY ITS PRESIDENT,
KANNANALLOOR P.O.,
THRIKOVILVATTOM VILLAGE,
CRP(WAKF).No.42 OF 2020
2
KOLLAM TALUK, KOLLAM DISTRICT,
PIN - 691 576.
3 MASOODLAL,
AGED 60 YEARS, S/O. PAREETHUKUNJU,
AARATTUVILA HOUSE, KANNANALLOOR P.O.,
THRIKOVILVATTOM VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT,
PIN - 691 576.
4 NISAMUDDIN,
AGED 50 YEARS, (JAMA-ATH SECRETARY),
S/O.IBRAHIMKUTTY, ASIF MAHAL,
KANNANALLOOR P.O., THRIKOVILVATTOM VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT,
PIN - 691 576.
5 KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
VIP ROAD, KALOOR P.O., ERNAKULAM DISTRICT,
PIN - 682 017.
BY STANDING COUNSEL, ADV.T.K.SAIDALIKUTTY
BY ADV.T.R.RAJAN
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
28.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRP(WAKF).No.42 OF 2020
3
JUDGMENT
Dated this the 28th day of January 2021
Bechu Kurian Thomas, J.
The first respondent as plaintiff had invoked the
jurisdiction of the Wakf Tribunal, Kozhikode in W.O.S.No.250/2019
praying inter alia for a declaration that he was not disqualified to
become a candidate in the election to the Managing Committee of the
Kannanalloor Muslim Jama-ath (for short, 'the Jama-ath'). The suit
was decreed in part with costs and declared that the plaintiff was not
disqualified to contest the election. The Returning Officer appointed
for conducting the election, who was the 4th defendant in the suit has
preferred this revision petition under Section 83(9) of the Wakf Act,
1995 (for short, 'the Act'). For easier comprehension, parties in this
revision petition are referred in this judgment as they were arrayed
in the Tribunal.
2. The plaintiff pleaded that he is a member of the Jama-
ath and a beneficiary of the Wakf, apart from having been a member
of the Managing Committee of the Wakf many several times. It was
CRP(WAKF).No.42 OF 2020
stated in the plaint that the activities of the Jama-ath are governed
by bye-laws and as per the bye-laws, all persons who are entered in
the subscription register are subscribers and those subscribers, who
have no arrears and are members of the Jama-ath will have voting
rights. The bye-laws further stipulated that 29 members to the
Managing Committee shall be elected from 29 divisions called 'Ravu'
and if there is only one candidate from one Ravu, he will be declared
as elected. The plaintiff further stated that after the bye-laws came
into existence in the present form in 2007, he was elected as a
representative of the 14th Ravu for a total period of 11 years and that
he had even held the post of Vice President on two occasions. It was
further pleaded that the 4th defendant refused to declare the election
of the plaintiff from the 14 th Ravu even though there were no
opponents from the said Ravu, solely due to personal enmity, that
too without divulging any reason, by wrongly attempting to rely upon
Clause VIII (5) and Clause V(f) of the bye-laws. The suit was filed at
such instance, seeking inter alia, for a declaration that the plaintiff
has no disqualification to become a candidate or from being declared
as elected unanimously from the 14th Ravu and for other
consequential reliefs.
CRP(WAKF).No.42 OF 2020
3. In the written statement filed by defendants 1 to 3,
they admitted the election of the plaintiff from the 14 th Ravu not only
prior to 2007 but even subsequently. According to defendants 1 to 3,
though no decision was taken disqualifying the plaintiff, the 4 th
defendant and the plaintiff were not on good terms for a long time,
due to which the 4th defendant informed that there were objections
against the plaintiff. It was also pleaded that the provisions in the
bye-laws, especially Clause VIII(5) and Clause V(f) were not
applicable to the plaintiff, since he was a member of the Jama-ath
even prior to 2007.
4. The 4th defendant in his written statement pleaded that
since a complaint was raised against the disqualification of the
plaintiff, as a Returning Officer, he was constrained to take a
decision. He further stated that as per Clause VIII(5) of the bye-
laws, the successors of the subscribers in the Jama-ath alone were
entitled to become the Managing Committee members, while those
coming from other mahals and had taken membership or
subscription, were not entitled to become a candidate. He further
stated that the previous election of the plaintiff to the Jama-ath was
not a reason to ignore the disqualification.
CRP(WAKF).No.42 OF 2020
5. The Wakf Board had also filed a written statement
affirming that the Jama-ath is a registered Wakf under Section 42 of
the Act and that the Board was not aware of the allegations in the
plaint.
6. In order to prove the plaintiff's case PWs 1 and 2 were
examined and Exts.A1 to A5 were marked while the 4 th defendant
examined DWs 1 & 2 and marked Exts.B1 to B4.
7. After analysing the evidence along with the relevant
clauses in the bye-laws, the Tribunal came to the conclusion that the
provisions of the bye-laws are operative from 27.04.2007 only and
that it cannot be applied to the plaintiff, who became a member of
the Jama-ath through his mother. It was also held that the plaintiff
had no disqualification as per the bye-laws, to contest the election to
the Managing Committee of the Jama-ath.
8. We have heard Adv.Babu Karukapadath, the learned
counsel for the revision petitioner, Adv.T.R.Rajan for the first
respondent, and Adv.P.K.Saidalikutty, Standing Counsel for the 5th
respondent.
9. The provisions of the bye-laws that are canvassed as
disqualifying the plaintiff from contesting the election are Clause
CRP(WAKF).No.42 OF 2020
VIII(5) and Clause V(f). The said Clauses are extracted as follows :-
Clause VIII(5)
"¼ÎÞ¥Já ÕøßAÞøáæ¿ ÉßX·ÞÎßµ{ÜïÞJ, §Äø ÎÙÜïáµ{ßW
ÈßKᢠ¨ ¼ÎÞ¥JßW ÕøßAÞøÞÏßGáUÕøᢠÍøÃØÎßÄßÏ¢·ÎÞÏß
ÄßøæE¿áAæM¿ÞX ÉÞ¿ßÜï."
Clause V(f)
"§Äø ÎÙÜïáµ{ßW ÈßKí ¨ ¼ÎÞ¥Jí
ÕøßAÞøáæ¿ ÉßX·ÞÎßµ{ÜïÞæÄ ÕøßAÞøÞµáKÕVAí çÕÞGÕµÞÖ¢
©UÄᢠ®KÞW ÍøÃØÎßÄßÏßçÜAí ÄßøæE¿áAæM¿ÞX
¥VÙÄÏßÜïÞJÄáÎÞµáKá."
10. Plaintiff's father belonged to Muttakkadavu Jama-
ath and it was claimed that he should be treated as a person who
is not a descendant of the member of the Jama-ath. If the above
extracted clauses apply to persons, who had become members
even prior to 2007, then the plaintiff could be disqualified,
provided he is not a descendant of a member of the Jama-ath.
The Tribunal by reference to clause VI(5) held that those clauses
which came into existence on 24.07.2007 cannot have
retrospective effect so as to apply to persons, who became
members prior to 2007. On a reading of various Clauses in the
CRP(WAKF).No.42 OF 2020
bye-laws, we are of the view that the revision petitioner's
contention has no merits.
11. A perusal of clause V(b) of Exts.A1 shows that the term
'family' ..................within the Jama-ath and the head of the family can be
a male or a female. The successors of the head of the family also are
included in the family as per clause V(b) of Exts.A1. Clause V(c) deals
with the 'subscribers' whose names are included in the register of the 1 st
defendant. The successors and family members of the subscribers are
treated as 'members' of the Jama-ath as per Clause V(d). Clause V(e)
further makes it clear that the family can be headed by a male or
female, though clause VI (14) denies the voting right and the right to
become an office-bearer in the managing committee for ladies, even if
they are members as head of the family.
12. It is also seen from clause VI (5) that the male
children in the family of the subscriber have to be enrolled as a
separate member on his marriage by paying the membership fee and
thereafter he has to pay subscriptions separately. Clause VI (9) gives
chance to the male children who are married prior to Ext.A1 and
residing in the same family of the subscriber to get membership within
45 days. This provision indicates that Clause VI (5) will be operative
from the date of the implementation of the provisions of Ext.A1.
13. It is an admitted fact that Ext.A1 bye-law of the Jama-ath
came into existence on 27.04.2007 since the managing committee decided
CRP(WAKF).No.42 OF 2020
to have a new bye-law for the future administration of the Wakf and this
was approved by the general body on 10.07.2006. We find that the
plaintiff became a member of the Jama-ath in 1972. It has come out
in evidence that plaintiff's mother was a member of the Jama-ath and
plaintiff himself had been born and brought up in the first defendant
Jama-ath. Though the plaintiff's father belonged to another Jama-ath,
he had deserted the plaintiff's mother during his childhood itself.
Plaintiff is the successor of his mother and is now aged 72 years. As
per Clause V(d) of Ext.A1, there is no prohibition for a female to
become a member of the Jama-ath. On a consideration of the above
provisions in the bye-laws, we are of the view that the Tribunal was
perfectly justified in coming to the conclusion that the Clauses VIII(5)
& V(f) of the bye-laws have no application to the plaintiff.
14. On a perusal of the judgment and after hearing the
arguments of the counsel, we find no illegality or impropriety in the
findings rendered by the Tribunal. We also find that the conclusions
arrived at by the Tribunal are correct in the facts and circumstances
of the case.
15. In view of the above, we are of the opinion that this is
not a fit case for interference and on the other hand, we confirm the
findings of the Tribunal in its entirety and taking note of the
CRP(WAKF).No.42 OF 2020
circumstances the imposition of costs was also proper.
The revision petition is therefore dismissed.
Sd/-
S.V.BHATTI, JUDGE
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
