IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 5047 of 2009(A) --------------------------------------- PETITIONER(S): ------------------------- 1. P.P.ABOOBACKER, AGED 52 YEARS, S/O.ALI AHAMMADUNNI, PARAPURAYIL, RESIDING AT PERUMBADAPPU VILLAGE, PERUMBADAPPU AMSOM, DESOM, PONNANI TALUK, PERUMPADAPPU P.O, MALAPPURAM DISTRICT. 2. P.N.KUNHI BAPPU, AGED 57 YEARS, S/O.MUHAMMU, PUTHIYA VEETTIL NAKOLAKKAL, RESIDING AT PERUMBADAPPU VILLAGE, PERUMBADAPPU AMSOM DESOM, PONNANI TALUK, PERUMPADAPPU P.O., MALAPPURAM DISTRICT. BY ADVS. MR.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, MR.K.A.NOUSHAD, MR.P.G.PRAMOD, MR.JAGAN GEORGE. RESPONDENT(S): --------------------------- 1. THE PRINCIPAL SECRETARY, VIGILANCE (T) DEPARTMENT, GOVT. SECRETARIATE, THIRUVANANTHAPURAM. 2. THE KERALA STATE WAKF BOARD, V.I.P.ROAD, KALOOR, COCHIN-17, REPRESENTED BY IT'S CHIEF EXECUTIVE OFFICER. Kss .2/- ...2..... WPC.NO.5047/2009 A 3. E.K.ASHARAF SULAIMAN, ADVOCATE & RETURNING OFFICER FOR ELECTION TO PERUMPADAPPU PUTHENPALLI JARAM MADRASA & HOSPITAL PARIPALANA COMMITTEE, KOZHIKODE ROAD, VALANCHERRY, MALAPPURAM. *ADDL.R4 IS IMPLEADED: R4. K.ABDURAHIMAN, AGED 65 YEARS, S/O.KUNJALAN, KUVVAKKATTAYIL HOUSE, PERUMPADAPPU P.O., MALAPPURAM DISTRICT. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 16/02/2009 IN I.A.NO.2387/09) R1 BY GOVERNMENT PLEADER MR. M.A.ASIF R2 BY ADV.MR.M.M.SAIDU MUHAMMED,SC,WAKF BOARD ADDL.R4 BY ADV.MR.NOUSHAD THOTTATHIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5047/2009 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE BYE LAW OF THE PUTHANPALLI JERAM & MADRASA PARIPALANA COMMITTEE. EXT.P2: COPY OF NOTIFICATION DTD. 07/02/2009 ISSUED BY THE 3RD RESPONDENT RETURNING OFFICER. EXT.P3: COPY OF LETTER DTD. 12/02/2009 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P4: COPY OF DECISIONS OF THE 3RD RESPONDENT REFUSING TO ACCEPT THE NOMINATION OF THE PETITIONERS. RESPONDENT'S EXHIBIT: EXT.R4(1): COPY OF THE ELECTION NOTIFICATION DTD. 07/02/2009. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. ----------------------- W.P.(C).No.5047 OF 2009 ------------------------ Dated this the 18th day of February, 2009. JUDGMENT Petitioners are the members of a Wakf by name Puthenpally Jaram Madrassa & Hospital. Ext.P1 is the bye- law of the Wakf. The members of the Managing Committee of the Wakf is to be elected in terms of Ext.P1 bye-laws for a tenure of 3 years. 2. Petitioners submit that last election was held on 26.2.2006 and that they were elected to the Managing Committee. It is stated that on 4.10.2007 a resolution passed resolving to oust them. However, the matter is pending in adjudication before the 2nd respondent. 3. In the meantime as the term of the elected committee was expiring the 3rd respondent was appointed as the Returning Officer for conducting election for the term 2008-09. The 3rd respondent there upon issued Ext.P2 WP(c).No.5047/09 2 election notification and the petitioners submitted their nomination. As per the schedule fixed in Ext.P2, the nominations were scrutinized on 12.2.2009 and the election is scheduled to be held on 22.2.2009. 4. It was while so that the 3rd respondent issued Ext.P4, informing the petitioners that the norminations have been rejected acting upon Ext.P3 direction issued by the 2nd respondent. It is in these circumstances the writ petition has been filed seeking to quash Ext.P3 and for directing the 3rd respondent to accept the nominations and to conduct election as already scheduled by hm. 5. Notice has been issued by Special Messenger and respondents have been served. The additional 4th respondent, the present Secretary of the Wakf sought impleadment by filing I.A.No.2387/09 and the same was allowed and Counsel was heard on his behalf as well. 6. Ext.P3 is the direction issued by the 2nd respondent to the 3rd respondent Returning Officer. A reading of Ext.P3 WP(c).No.5047/09 3 shows that the first respondent by letter dated 12.2.2009 has directed the 2nd respondent to prevent the accused in Vigilance Case No.V.C.16/06/MPM from filing nomination in the election to be held to the Managing Committee of the Wakf. On that basis, the 2nd respondent has directed the 3rd respondent not to accept the nomination of the petitioners and that led to the issuance of the impugned order. 7. While the counsel for the petitioners contend that the 2nd respondent has no power whatsoever to issue a direction in the nature of Ext.P3, he counsel for the Wakf Board seems to justify Ext.P3 and the power of the Government by relying on Section 32 and 97 of the Wakf Act. Section 32(1) provides as follows; “Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers WP(c).No.5047/09 4 under this Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thee of is duly applied to the objects and for the purposes for which such Wakfs were created or intended. 8. Section 97 confers a general power on the Government to issue directions to the Board for the performance of its functions and the Board shall comply with such directions. 9. As already noticed, the only ground on which such directions are sought to be enforced is on the basis that the petitioners are involved in a vigilance case. Nobody has got a case that any offence has been proved against them. If that be so, in my view Section 32 or Section 97 cannot stand in the way of the petitioners contesting in the elections as long as they are not found guilty of the offence alleged and in that WP(c).No.5047/09 5 view of the matter I am not persuaded to uphold the rejection of the nomination at this stage. Although, addl. respondent has a case that the petitioner do suffer 7 other ineligibilities as provided under the bye laws, since such a reason has not been relied on by the Returning Officer to reject the nomination of the petitioners, I am not persuaded to consider these contentions. Therefore, I quash Exts.P3 and P4 and direct the Returning Officer to scrutinize the nomination of the petitioners, if it is not already done and take necessary action for the conduct of election. It is clarified that I have only examined the validity of Exts.P3 and P9 and if for any reason the petitioners are found ineligible, it is for the Returning Officer to do the needful. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/