Kerala High Court
Ansar vs Manikkal Muslim Jama-Ath on 23 May, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
CRP(Wakf) No.37 of 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRP(WAKF) NO. 37 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2023 IN WOS
NO.83 OF 2022 OF WAKF TRIBUNAL, KOZHIKODE
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REVISION PETITIONERS/PLAINTIFFS:
1 ANSAR, AGED 50 YEARS,
S/O.MYTHEEN KANNU, PANDIMAVILA VEETIL,
MANIKKAL DESOM, NELLANADU VILLAGE,
PIN - 695607.
2 SALEEM, AGED 52 YEARS,
S/O.ABDUL KAREEM, PUTHAN VEETIL, KADAYIL
MANALIMUKKU, PULLAMPARA VILLAGE,
PULLAMPARA DESOM, PIN - 695607.
3 SAJEER KHAN, AGED 49 YEARS,
S/O SHAHUL HAMEED, S.J.MANZIL, PICHIMANGALAM,
PULLAMBARA VILLAGE, PULLAMBARA DESOM,
PIN - 695607
4 KABEER, AGED 47 YEARS,S/O.SHAHUL HAMEED,
S.J. MANZIL, PICHIMANGALAM, PULLAMABARA VILLAGE,
PULLAMBARA DESOM, PIN - 695607.
BY ADVS.
THOMAS ABRAHAM
SWATHY A.P.
MERCIAMMA MATHEW
ASWIN.P.JOHN
R.ANANTHAPADMANABAN
PAUL BABY
CRP(Wakf) No.37 of 2023 2
RESPONDENTS:
1 MANIKKAL MUSLIM JAMA-ATH,
REPRESENTED BY ITS PRESIDENT ASHRAF,
S/O.SHAHUL HAMEED, AGED 58 YEARS, ASI COTTAGE,
MANIKKAL AMSOM DESOM, VELLUMANNADI P.O.,
MELEKUTTIMOODU, VENJARAMMOODU, PIN - 695607.
2 NASEER NAGARUKUZHI (NASARUDHEEN H)
AGED 52 YEARS, S/O.HASSANARUPILLA, KATTAKKALIL
HOUSE, NAGHARUKUZHI, MANIKKAL AMSOM DESOM,
PALAMKONAM P.O., VENJARAMMOODU, PIN - 695607.
3 MUSTHAFA, AGED 71 YEARS,
S/O.ISMAIL PILLA, PUTHENVEEDU, CHAVADINADA,
MANIKKAL AMSOM DESOM, VENJARAMMOODU,
PIN - 695607.
4 MUHAMMED HASSAN MANNANI, AGED 38 YEARS,
S/O.ABDUL RASHEED, EDHIHAS MANZIL, KUNNUMUKAL,
MANIKKAL AMSOM DESOM, VELLUMANNADI P.O.,
PIN - 695607.
5 ASHRAF KORMALA, AGED 58 YEARS,
S/O.SULAIMAN PILLA, VEDANVILAKAM HOUSE,
MELEKUTTIMOODU, MANIKKAL AMSOM DESOM,
VELLUMANNADI P.O., VENJARAMMOODU, PIN - 695607.
6 FAZAL KAMUKINMOODU, AGED 54 YEARS,
S/O.SHAMSUDEEN, K.M. HOUSE, CHAVADI NADA,
MANIKKAL AMSOM DESOM, VENJARAMMOODU P.O.,
PIN - 695607.
7 CHIEF EXECUTIVE OFFICER, KERALA WAQF BOARD,
KALOOR P.O., ERNAKULAM, PIN - 682017.
8 SHARAFUDHEEN KIZHAYIKONAM (KIZHAYIKONAM SHARAF)
AGED 58 YEARS, S/O. SHAHUL HAMEED, OLIPPIL HOUSE,
MANIKKAL AMSOM DESOM, VATTA VILA, NELLANADU P.O.,
PIN - 695606.
CRP(Wakf) No.37 of 2023 3
9 HASHIM MUDIYOORKONAM, AGED 63 YEARS
S/O.HASSANARUPILLA, MUDIYOOR KONATH HOUSE,
MANIKKAL AMSOM DESOM, VENJARAMMOODU P.O.,
PIN - 695607.
10 S NASSARUDHEEN, AGED 54 YEARS,
S/O.SULAIMANPILLA, VEDANVILAKATH HOUSE,
PICHIMANGALAM, MANIKKAL AMSOM DESOM,
VENJARAMMOODU P.O., PIN - 695607.
11 M K ABDUL JALEEL, AGED 63 YEARS,
S/O.SHAHUL HAMEED, UNDAPPARAKUZHI, PANAYARAM,
MANIKKAL AMSOM DESOM, VENJARAMMOODU P.O.,
PIN - 695607.
12 MUHAMMED SALIM NJEKKAD, AGED 58 YEARS,
S/O.MUHAMMED MUSTHAFA, SUBEENA MANZIL,
NJEKKAD HOUSE, MANIKKAL AMSOM DESOM,
VENJARAMMOODU P.O., PIN - 695607.
13 ABDUL RAHIM, AGED 56 YEARS,
S/O.ABOOBACKER, KOKKOTTUKONATH HOUSE,
MANIKKAL AMSOM DESOM, VENJARAMMOODU P.O.,
PIN - 695607.
14 ABDUL VAHAB, AGED 56 YEARS,
S/O.MUHAMMED KASIM, KAVUVILA HOUSE, MANIKKAL,
MANIKKAL AMSOM DESOM, VENJARAMMOODU P.O.,
PIN - 695607.
15 NOUSHAD BALAMPACHA, AGED 42 YEARS,
S/O.SAINUDEEN, THADATHARIKATH HOUSE,
MANIKKAL AMSOM DESOM, BALAMPACHA,
VELLUMANNADI P.O., PIN - 695607.
16 SHAJAHAN KUZHIVILA, AGED 42 YEARS,
S/O.MUHAMMED SALI, KUZHIVILA HOUSE, PERUMALA,
MANIKKAL AMSOM DESOM, PALAMKONAM P.O.,
PIN - 695607.
17 E NOUSHAD KARINJIYIL, AGED 58 YEARS
S/O. ISMAIL PILLA, MUBEENA MANZIL, KARINJIYIL,
CRP(Wakf) No.37 of 2023 4
MANIKKAL, MANIKKAL AMSOM DESOM, VENJARAMMOODU
P.O., PIN - 695607.
18 NIZAR MANIKKAL, AGED 52 YEARS,
S/O. KHALID, JABAB VILLA, MANALIMUKKU, MANIKKAL
AMSOM DESOM, VENJARAMMOODU, PIN - 695607.
19 MUHAMMED BASHEER, AGED 65 YEARS,
S/O. ABDUL RAHIMAN, BASHEER MANZIL, NAGARUKUZHI,
PALAMKONAM P.O., MANIKKAL AMSOM DESOM, VENJA-
RAMMOODU, PIN - 695607.
20 JAJALUDHEEN PARAMBIL, AGED 70 YEARS
S/O.YOUNOUS KUNJU, PARAMBIL HOUSE, MANIKKAL,
MANIKKAL AMSOM DESOM, VENJARAMMOODU P.O.,
PIN - 695607.
21 THE KERALA STATE WAQF BOARD,
REPRESENTED BY THE CHIEF EXECUTIVE OFFICER,
V I P ROAD, KALOOR, KOCHI, PIN - 682017.
BY ADVS.
Muhammed Kabeer E S
MARIYA JOSE
C.SHEEBA(K/273/2012)
SRI.JAMSHED HAFIZ, STANDING COUNSEL
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON 23.05.2024 DELIVERED THE
FOLLOWING:
CRP(Wakf) No.37 of 2023 5
ANIL K. NARENDRAN & HARISANKAR V. MENON, JJ.
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CRP(Wakf) No.37 of 2023
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Dated this the 23rd day of May, 2024
ORDER
Harisankar V. Menon, J.
This revision petition is filed by the plaintiffs in W.O.S.No.83
of 2022 on the file of the Waqf Tribunal, Kozhikode. The said suit
was filed with respect to the affairs of the 1st respondent Jama-ath.
2. The 1st respondent is governed by the bye-laws at Ext. A1,
framed for the administration of the Jama-ath. The bye-laws lay
down a detailed procedure with reference to the election to the
office bearers - executive committee. The procedure thereunder
is prescribed in Clause IX of the bye-laws. The bye-laws, provide
for the following procedures with respect to the election to the
executive committee:
(I) Clause IX provides for the election to the executive
committee with reference to the Islamic principles of
consensus and consultation/deliberation.
(ii) Clause IX A provides for the constitution of an Election
Commission having 5 members under sub-clause (1).
(iii) Under Clause IX A(2), the constitution of an Election
Commission is laid down.
(iv) Clause IX B provides for the election of one returning
officer from among the Election Commission
constituted under Clause IX A.
(v) It is further provided under clause IX C(1) that nomination
towards the executive committee can be made by the
members of the Jama-ath individually or in groups not
exceeding five persons in the prescribed format. It is
further provided that the members of the Election
Commission are not entitled to be nominated to the
executive committee.
(vi) Clause IX C(7) provides for the Panel Committee(election
committee) to convene a meeting to discuss about the
list submitted under Clause IX C(1). Thereafter, each
of the election committee members has to prepare a
separate list nominating the executive committee
members and submit the same to the Returning Officer.
(vii) Under Clause IX C(8), the persons whose names feature
in most panels submitted by the Election Commission(5
Nos.) have to be prepared and the Returning Officer has
to notify the same as the elected executive committee
members. In other words, the names which figure in all
the 5 panels would come first, followed with names that
feature in 4 panels, 3 panels etc.
Thus, bye-laws at Ext.A1 provide for a detailed procedure with
reference to the election towards the executive committee.
3. The suit is filed before the Waqf Tribunal by the plaintiffs,
alleging that though defendants 2 to 6 were selected as the
members of the Election Commission and 36 valid panel forms as
provided under Clause IX C(1) were submitted; on 03.07.2022,
the Election Commission unanimously decided to conduct the
election to the executive committee on the basis of "majority
decision" which is against the bye-laws. On 08.07.2022, it is
alleged that 9 persons were elected from the panel list given by
the Panel Committee and the balance 4 Nos. were elected on
10.07.2022. It is further alleged that such panel lists were
submitted only by defendants 2, 3 and 5 whereas defendants 4
and 6 have not given any panel list. In other words, it is alleged
that out of the 5 members of the Election Commission, only 3
members have submitted the panel list and the balance 2
members have not submitted any panel list. Therefore, before the
Waqf Tribunal, a prayer was made for a declaration to the effect
that the election conducted by the 2nd defendant on 08.07.2022
to the 1st defendant Jama-ath is against the bye-laws.
4. In the suit, defendants 2, 3 and 5 have filed a written
statement contending that the suit itself is not maintainable, since
the relief prayed for is only with respect to the election on
08.07.2022 and not with reference to the election on 10.07.2022
and the election of the office bearers held on 22.07.2022.
Defendants 4 and 6 appear to have supported the contentions
raised by the plaintiffs in the suit. Defendants 16, 18 and 20 have
also filed a written statement, contending that the election was
conducted without complying with the formalities prescribed by
the bye-laws. Defendants 7 and 21 - the Chief Executive Officer of
the Waqf Board and the Waqf Board itself filed separate written
statements pointing out that they have no objection to the conduct
of the election in a proper way according to the bye-laws.
5. The Tribunal passed a judgment and decree dated
22.07.2023, dismissing the same. It is found by the Tribunal that
there is substantial compliance as regards the procedure
prescribed by the bye-laws, that the complicated procedure
enunciated in the sub-clauses of Clause IX is not mandatory since,
according to the Tribunal they were not practicable in the social
and political circumstances of our State. There is also a suggestion
to the Kerala State Waqf Board for considering much more
practical ways of conducting elections in the Jama-ath by making
necessary amendments in the bye-laws. It is against the said
order dated 22.07.2023, that the present revision petition is filed
by the plaintiffs.
6. We have heard the learned counsel appearing for the
plaintiffs, the learned counsel appearing for respondents 1 to 3, 5,
8 to 17 and 19 to 20, the learned counsel for the 18th respondent
and the learned Standing Counsel for respondents 7 and 21.
7. The dispute in this revision petition, as stated earlier, is
against the election of defendants 8 to 20 as the members of the
executive committee of the 1st respondent Jama-ath. It is the case
of the plaintiffs that, the election of the above defendants as
members of the executive committee has been carried out in total
disregard of the norms prescribed under Clause IX C referred to
above. They have relied more specifically on sub-clauses (7) and
(8) of Clause IX C to contend that the election ought to have been
conducted strictly in accordance with the procedure laid down
therein. It is true that on a reading of the above sub-clauses, the
Election Commission (Panel Committee) has to submit separate
panels (5 in Nos. since the Election Commission consists of 5
members) and the persons whose names appear in most of the
panels ought to have been selected as the members of the
executive committee. However, it is seen that defendants 4 and 6
who were also members of the Election Commission had not
submitted any panel in the matter, as directed under sub-clause
(7) of Clause IX C. It is only the other 3 members - defendants
2, 3 and 5, who have submitted the panels as mandated above.
On a reading of the bye-laws, especially Clauses IX, IX A, IX B and
IX C, we notice that the same is conspicuously silent as regards a
situation where after getting included in the Election Commission,
some of the said members of the Election Commission fails to
submit the panel list as provided under sub-clause (7). In such
circumstances, we notice that the remaining members of the
Election Commission had no other way than to go by the majority
decision and elect the members of the Executive Committee. This
is all the more so, since in the meeting of the Election Commission
held on 03.07.2022, it has been decided unanimously not to follow
the method of submitting a secret panel list by each member of
the Election Commission and to go by the majority decision in the
matter of election to the Election Commission. It is also seen that
the minute book has been signed also by defendants 4 and 6, who
have not submitted the panel list. After such a unanimous decision
being arrived at on 03.07.2022, as regards the method of election,
the further election held on 08.07.2022 and 10.07.2022 for
electing the members of the executive committee, cannot be
found fault with.
8. This is especially so, insofar as the suit has been filed
challenging the election of 9 working committee members who
were elected on 08.07.2022 alone. It is to be noticed that the
election to the Executive Committee has been carried out in two
stages on 08.07.2022 and 10.07.2022. On 08.07.2022, 9
members were elected and the balance was elected only on
10.07.2022. However, as noticed earlier, the suit has been
instituted only challenging the election held on 08.07.2022. There
is no challenge as regards the election held on 10.07.2022, as
regards the balance 4 members of the Executive Committee.
Without there being any challenge to the election held on
10.07.2022 also, we are of the considered opinion that the suit
itself cannot be entertained. Therefore, the Tribunal has rightly
come to the finding that the plaintiffs are not entitled for the reliefs
prayed for in the suit.
9. Furthermore, on a reading of the various clauses in the
bye-laws, we are of the view that essentially the same lays down
that the election to the Executive Committee has to be conducted
through consensus and conciliation. The Election Commission has
only acted accordingly.
10. As noticed by the Tribunal, the various clauses in the
bye-laws are not practicable with respect to their implementation.
The Tribunal has, therefore, advised the Kerala State Waqf Board
to consider necessary amendments to the bye-laws, for the
smooth functioning of the Executive Committee. The said findings
of the Tribunal also support the ultimate conclusion as regards the
election carried out to the Executive Committee.
11. It cannot be said that there is no substantial compliance
to the procedures contemplated by the bye-laws. Insofar as there
is substantial compliance with the bye-laws prescribed, the
election carried out cannot be found fault with.
We, therefore, find no merit in this revision petition and
hence, dismiss the same. The parties to suffer their respective
costs.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
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