Hyder A.S Vs. Kaippamangalam Badar Juma-ath Palli Mahal Committee - Court Judgment

IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY,THE11H DAY OF FEBRUARY201422ND MAGHA, 1935 CRP(WAKF).No. 634 of 2013 () --------------------------------------- THE ORDER

IN I.A.218/13 IN W.O.S. 26/2013 of WAKF TRIBUNAL, ERNAKULAM DATED1309-2013 PETITIONER(S)/PETITIONER: ------------------------------------------ 1. HYDER A.S AGED32YEARS S/O.ZAGEER A B, R/A.ANTHARATHARA HOUSE KAIPPAMANGALAM VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT2 ISAHAK PA, S/O. P K ABDUL KAREEM AGED25YEARS R/A.PUHAMKARAYILLATH HOUSE, CHALINGAD P O KAIPPAMANGALAM VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT3 SHARAFFUDIN M.H AGED32YEARS S/O.M.A.HAMEED KUNJU, R/A.MUTTUNGAL HOUSE KAIPPAMANGALAM VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT4 P M ABDUL RAOOF AGED50YEARS S/O.PA MOOSA, R/A.PONNATH HOUSE KAIPPAMANGALAM VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SMT.P.A.SHEEJA SMT.MEENA.A. SRI.K.C.KIRAN RESPONDENT(S)/RESPONDENT: -------------------------------------------------- 1. KAIPPAMANGALAM BADAR JUMA-ATH PALLI MAHAL COMMITTEE, CHALINGAD P O, KAIPPAMANGALAM VILLAGE KODUNGALLUR TALUK, THRISSUR DIST, PIN-680681 REPRESENTED BY ITS SECRETARYA .A. ABDUL KHADER, S/O. ABDU. CRP(WAKF).No. 634 of 2013 - 2 - 2. HASSAN KUNJU S/O.KUNJU PRESIDENT KAIPPAMANGALAM BADAR JUMA PALLI MAHAL COMMITTEE CHALINGAD P O, KAIPPAMANGALAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680681 3. P.A.HAMSA S/O.MOHAMMED, TREASURER KAIPPAMANGALAM BADAR JUMA PALLI MAHAL COMMITTEE CHALINGAD P O, KAIPPAMANGALAM VILLAGE KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680681 4. M AMOHAMMED SHAFI, AGED55YEARS S/O.ABDULAZEEZ MUSALIYAR, RESIDING ATH.N.KMCR118 CHETTIYATH,VADAKKETHIL HOUSE, VERUVALLI BHAGAM MAVELIKKARA, KAYAMKULAM P O, PIN-690506 5. THE KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER NORTH INTERNATIONAL STADIUM, KALOOR, ERNAKULAM KOCHI-17 R1 BYADV.SRI.T.H.ABDULAZEEZ(CAVEATOR) R1-R4 BYADV. SRI.T.H.ABDULAZEEZ R5 BY SRI.K.SHIBILI NAHA, SC, KERALASTATEWAKF BOARD RADDL.6 TO8BY ADV. SRI.P.A.ABDUL JABBAR THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON1102-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. M. JOSEPH & A.K. JAYASANKARAN NAMBIAR, JJ ------------------------------------------------------------------- C.R.P.(Wakf). No. 634 OF2013------------------------------------------------------------------- Dated this the 11th day of February, 2014 ORDER

K.M. Joseph, J Petitioners are the petitioners in I.A. No.218 of 2013 in W.O.S. No.26/2013 on the file of the Wakf Tribunal, Ernakulam.

2. The case of the petitioners before the Tribunal, as noted by it in brief, is as follows : The petitioners are the Mahal members as well as the beneficiaries of Kaippamangalam Badar Juma-ath Mosque (hereinafter referred as to Wakf/Mosque). The first respondent is the Committee represented by its Secretary of the Wakf. Second and third respondents respectively are the President and Treasurer of the Committee. The 4th respondent was one of the former Khatheeb of the Mosque. The first respondent Mosque registered before the Kerala Sate Wakf Board and governed by its registered bye-law. The first respondent committee came into force of the Juma-ath Committee on the basis of election conducted as per the bye-law. Section 5 of the bye-law clearly CRPWK.634/13 2 mentioned regarding the condition for appointment of any employee of the Wakkf/Mosque including, Khatheeb and Mu'addin. The bye-law specifically mandates that any appointment of employees of the Wakf/Mosque should obtain approval from the general body meeting of Mahal Members without which the committee cannot appoint any person as the employee of the Wakf/Mosque. Section 5(12) of the bye-law clearly mandates that, the administrative committee should not appoint any employee in the wakf/Mosque without the approval of the general body of the Wakf. But the respondents 1 to 3 and their committee trying to appoint 4th respondent as the Chief Khatheeb of the Mosque, who has been dismissed from the office of the Khatheeb by the earlier committee consequent to his unholy, inexplicable and uncharitable activities and incidents which also led several chaos and blood shedding incidents inside the holy Mosque. The 4th respondent is also spitted with several inflammatory speeches by misusing the Friday congregation and trying to divide the people among the mahal for his own selfish gain. The respondents 1 to 3 are trying to bring the dismissed Khatheeb/4th respondent as Chief Khatheen of the Mosque again by misusing their office. This will only contribute breach of peace and troublesome incidents in the Mahal. Though the respondent CRPWK.634/13 3 Nos.1 to 3 are in management of Wakf, they have no right or authority to take any whimsical decision in connection with appointment of employees in accordance with their devilish whims and fancies and against the mandates of bye-law. They are also trying to put the wakf in anarchy and administering the Wakf without giving ear to the large scale resentment of the mahal members.

3. The respondents filed counter affidavit stating as follows : "The petitioners have no locus-standi to question the lawful decisions taken by the committee in management of the wakf. The present committee members were elected in the election held don 17.2.2013. Before the last election, the respondents 2 and 3, the Secretary and other candidates who contested the election had published an election manifesto, in which one of the promises given to the voters was to give an opportunity to the 4th respondent, the former Khatheeb who was sent out without any valid reason and without giving a show cause notice by the former committee. Thus the first respondent committee is committed and duty bound to fulfill and implement the promises made in the election manifesto. During the long tenure of the 4th respondent as Khatheeb there was no complaint against him either by the former CRPWK.634/13 4 committees or any members of Juma-ath. But before sending out the Khatheeb, the former committee felt inconvenience in his speeches regarding the misdeeds and maladministration of the then committee. Therefore, the former committee sent him out without affording an opportunity to him for explanation. The present suit and alleged accusations against the former Khatheeb are at the instance of the former committee. The approval of the general body meeting of the mahal members for the appointment of the employees of the Juma-ath is not a pre condition and it is only after the said appointment approval has to be sought from the General Body. In the meeting held on 17.3.2013 the first respondent has satisfied and convinced the explanation of the 4th respondent that there was no reason or justification for sending out him from service by the former committee. Accordingly the committee has unanimously decided to cancel the decision of dismissing the 4th respondent by the former committee. The decision to appoint the 4th respondent as Chief Khatheeb in fact is his reinstatement in service as he has rendered about 11 years of service as Khatheeb of the Mahal. The first respondent has got the right to appoint the employees of the Juma-ath and it has exercised its right within its powers. The approval of the general body on the appointment of the employees arises CRPWK.634/13 5 later only and not before the appointment. It is the right and privilege of the first respondent to appoint the 4th respondent and other employees of the Juma-ath and no member has the right to question the said power. It is not true that the 4th respondent has been dismissed from the office of the Khatheeb by the earlier committee consequent his unholy, inexplicable and uncharitable activities and incidents which also led several chaos and blood shedding incidents inside the holy Mosque. It is also absolutely false to allege that the 4th respondent is also spitted with several inflammatory speeches by misusing the Friday congregation and trying to divide people among the mahal for his own selfish gain. It is baseless and untrue to state that the 4th respondent by using status as a Khatheeb and head of the society misused several persons for his financial gaining and even he venturing upon maintaining illegal relationship with some helpless persons in the mahal. In fact, large scale resentments from the public was against the former committee. The erstwhile committee were responsible for all the untoward incidents took place in the mahal. There was no blood shed and bediam inside the Mosque. There is no complaint against the 4th respondent. There is absolutely no law and order problem in the Jama-ath. The petitioners have not made out a prima facie case and the balance of convenience also in favour of an elected committee CRPWK.634/13 6 and respondents 1 to 4." 4. The Tribunal, on a conspectus of the relevant bye-laws, came to the conclusion that the consent of the general body is not a pre-condition for the appointment of the employees. Consent may be obtained only after the appointment and it found no force in the argument of the petitioner that the committee chould not appoint any employee in the Wakf without the approval of the General Body. The Tribunal has also reasoned that petitioner has no case that as per the bye-laws there is any bar to reinstate any employee who has been once terminated. Failing to prove prima facie case and noting that balance of convenience is also in favour of the respondents the application was dismissed. Being aggrieved, the petitioners are before us.

5. We heard learned counsel for the petitioner Sri. T.Krishnan Unni, Sri. T.H. Abdul Azeez on behalf of respondents 1 to 4, Sri. Shibili Naha on behalf of the Wakf Board and Sri.P.A. Abdul Jabbar on behalf of the additional respondents.

6. Learned senior counsel for the petitioner submits that the election in which the first respondent committee was elected took place on 17.2.2013. Even now, the General Body has not been called. The appointment of the 4th respondent took place on 17.3.2013. CRPWK.634/13 7 7. When we asked whether the bye-laws provide for any time within which the General Body is to be convened, he would submit that there is no such clause in the bye-laws. But the argument is that the General body should have been convened within a reasonable period of time and it is not been done. Learned senior counsel for the petitioner would submit that appointment of the 4th respondent can come into effect only on the approval of general body.

8. The relevant clause in the bye-laws was read out to us. The relevant clause essentially provides that as found by the Tribunal the appointment is to be approved at the next meeting. Therefore, injunction which was sought for by the petitioner against the appointment being made on the premise that there is no approval and appointment will take effect only on there being approval, would not lie. What is contemplated is power to make appointment. This power however is hedged with the condition that it must receive the approval of the General Body at the next meeting. As already noted, there is no specific provision as to within what time the General Body must be called. But we are in agreement with the learned Senior counsel for the petitioner that General Body must be convened within a reasonable time.

9. In the circumstances of the case we are not shown any CRPWK.634/13 8 reason why we should interfere with the order passed by the Tribunal. At the same time, while we are not inclined to interfere with the order, in view of the passage of time, in particular, we deem it fit to make the following modifications: We affirm the order subject to condition that the General Body of the first respondent will be called within a period of one month in which the approval of the appointment of the 4th respondent will be taken up as an item in the agenda and necessarily, if there is no approval obtained, the 4th respondent cannot continue thereafter. At the meeting of the general Body, a representative of the Wakf Board will also be present. The first respondent will intimate the date of meeting of the General Body with seven days notice.

10. Sri. T.H. Abdul Azeez, learned counsel for respondents 1 to 4 made a prayer that in view of the circumstances, if a request is made in writing before the Station House Officer, Mathilakom Police Station, Police aid may be directed to be extended for the peaceful conduct of the General Body. Learned senior counsel for CRPWK.634/13 9 the petitioner and Sri. Abdul Jabbar also has no objection.

11. We heard learned Government Pleader also. In the circumstances of the case, in view of the apprehension expressed, we direct that if the first respondent in writing seeks for police aid, the Station House Officer, Mathilakom will grant sufficient aid for the orderly conduct of the General Body meeting of the first respondent. Sd/- K. M. JOSEPH, JUDGE Sd/- A.K. JAYASANKARAN NAMBIAR, JUDGE. Sou. // True copy // P.A. To Judge