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2022 DIGILAW 825 (KER)

Kakkov Hidayathul Muslimeen Sangham v. Abbas Ali K. P. , S/o. Muhammed Haji

2022-09-29

BASANT BALAJI, S.V.BHATTI

body2022
JUDGMENT : Basant Balaji, J. This Writ Petition is filed by the petitioners with a prayer to the 7th respondent not to induct new members or delete existing members in the electoral rolls of the society. As per Ext.P1 order dated 13.7.2022, the 6th respondent has passed an order as follows : “Board find that it is a fit case for taking action under section 64(3) removing committee from mutawalliship/administration of Masjidal Hidaya Jama ath Mosque, Kakkovu under section 64 of the Waqf Act, 1995. In pursuance of the inquiry commenced under subsection 3 of section 64 Board finds that in the interest of the waqf it is necessary to suspend the committee for a period of 10 days from 13-07-2022 as the continuation of the present committee in the administration of the waqf will result in manipulation of documents in the waqf and may destroy the evidence for the enquiry. While the committee is suspended, Mr. Adv. Muhsin P.K, Kunthanikkavu House, Pazhamparambu, Po- Cheruvadi, Mavoor-Via, Kozhikode is appointed as the Interim Mutawally of the Waqf and he is directed to take charge of the office of the waqf with immediate effect. The suspended committee shall appear before the Board on 20-07-2022 for submitting its version at its Headquarters at Ernakulam at 2.PM.” 2. Ext.P1 was challenged before this court in O.P. (Wakf) No.22 of 2022. This court, by judgment dated 21.7.2022 did not interfere with Ext.P1, the order appointing interim muthawalli, but directed that the election to the Masjidul Hidaya Jama-ath Mosque committee shall be completed within a period of six weeks from the date of receipt of the judgment. 3. The main contention raised by the counsel for the petitioners is that by Ext.P1, the interim muthawalli was appointed after suspending the committee for a period of 10 days from 13.7.2022, the same order was not extended and the suspension period got over by a lapse of ten days and the appointment of interim muthawalli also terminated after 10 days. Though in the judgment in O.P.(Wakf) No.22 of 2021, we did not interfere with the appointment of interim muthawalli, the same has elapsed after a period of ten days from 13.7.2022, since the suspension of the committee was not extended by the Wakf Board. 4. Though in the judgment in O.P.(Wakf) No.22 of 2021, we did not interfere with the appointment of interim muthawalli, the same has elapsed after a period of ten days from 13.7.2022, since the suspension of the committee was not extended by the Wakf Board. 4. The counsel for the petitioners submits that the 7th respondent issued Ext.P5 notice stating that as per the order of the Wakf Board in I.A. No.4 of 2021 and 91 of 2022 in O.P. No.36 of 2021 and O.P.(Wakf) N0.22 of 2022, he was appointed as muthawalli of the jama-ath and that all matters regarding the marriage, death and other matters should be informed to him. Another notice was also issued by the 7th respondent calling for applications for inclusion of member ship in the Mahal in the camps to be conducted by him. 5. The counsel for the 7th respondent further submits that though the suspension of the committee as per Ext.P1 is only for ten days from 13.7.2022, in fact the appointment of interim muthawalli is till new election are conducted and it is without any time and hence, he is justified in acting as interim muthawalli and calling for the applications of the member ship for persons. He has not exceed his power and not acted contrary to the any of the directions of the Board. 6. As per Ext.P1, the Wakf Board has commenced the enquiry under sub-Section 3 of Section 64 of the Wakf Act and the suspended the Committee for 10 days from 13.7.2022 for the reason that if the present committee is allowed to administer the work, it will result in manipulation of the documents in the wakf and destroy evidence in the enquiry. It is also stated that the while the committee is suspended, 7th respondent is appointed as interim muthawalli and was directed to take charge of the Wakf Board with immediate effect. 7. It is also argued by the counsel for the petitioners that the suspension period of ten days was never extended and hence, the suspension and the appointment of the interim muthawalli lapsed after ten days on 23.7.2022. In that event the committee has again come to power and it administering the wakf. In such circumstances, the 7th respondent, has seized to be the interim muthawalli and has exceeded his jurisdiction and issued applications calling for applications for membership to the mahal. 8. In that event the committee has again come to power and it administering the wakf. In such circumstances, the 7th respondent, has seized to be the interim muthawalli and has exceeded his jurisdiction and issued applications calling for applications for membership to the mahal. 8. Today, we have directed the standing counsel for the wakf board to get instructions from the Board and to submit as to whether the suspension of the committee for ten days with effect from 13.7.2022 has been extended or not. 9. The standing counsel submits that the suspension was never extended. Taking note of the above submission of the standing counsel for the Wakf board, we are of the considered opinion that as per Ext.P3 judgment, we have already held that the election of the Mahal committee has to be completed within six weeks from the date of receipt of the judgment. Though panels were submitted for the appointment of Returning Officer from both sides, a consonance could not be arrived and hence a returning officer could not be appointed. 10. To preserve the wakf board and the masjid committee, the elections as directed in Ext.P3 has to be conducted within a time limit. On going through Ext.P1, we find that the suspension of the committee as well as appointment of the committee has expired on 23.7.2022 and the committee is now back in power. 11. For conducting the election the returning officer is already appointed and since there was no consonance between the parties, we deem it appropriate that two Advocates of this court can be appointed as Returning Officers to work along with the Returning officer already appointed by the Wakf Board for conduct of the election to the jamaath as directed in Ext.P3. We, therefore, appoint Adv. Ummul Fidha and Adv. Priya Shanavas as Advocate commissioners for the conduct of the election to the jamaath. In the result, the Original Petition is disposed of with the following directions : (i) The Returning Officer already appointed by the Wakf Board shall transmit the applications received from the persons of the jamaath for admission to the jamaath to the Advocate commissioners within a week from today. The Advocate Commissioners along with the Returning officer shall, publish a draft voters list including the members already in the voters list as well as the new members to be included, with suitable addition and deletion. The Advocate Commissioners along with the Returning officer shall, publish a draft voters list including the members already in the voters list as well as the new members to be included, with suitable addition and deletion. (ii) Thereafter objections to be called for from all quarters and after hearing the objections, a final voters list as per the bylaw, has to be published. Once the voters list is finalised, the election can be conducted in accordance with law. (iii) The entire process of finalisation of the voters list and declaration of the results shall be completed within a period of two months from the date of receipt of a copy of this judgment. (iv) Since there are allegations and counter allegations against the committee, we deem it proper that the Divisional Officer, Kerala State Wakf Board, Malappuram, to act as the interim muthawalli till the elections are conducted and the results are published. The displacement of the committee, by this order shall not be understood as having accepted any of the allegations alleged against it, but to ensure fairness to all. (v) The Advocate Commissioners appointed shall be paid an amount of Rs.50,000/- (Rupees fifty thousand only) each as fee and another Rs.15,000/- (Rupees fifteen thousand only) each as expenses. The interim mutawalli shall pay the fees and expenses to the Advocate commissioners from the fund of the Jamaath within two weeks from today. The O.P.(Wakf) is disposed of as above.