IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 CRP.No. 215 of 2011() --------------------- OS.5/2011 of WAKF TRIBUNAL, KOLLAM .................... REVN. PETITIONERS: PETITIONERS -------------------------------- 1. THE SECRETARY,THATTAMALA JAMA ATH, THATTAMALA,MAYYANADU,PIN-691020. 2. SHAMSUDEEN,S/O.KASEEMKUNJU,VAIDYAN, AGED 58 YEARS,SECRETARY,THATTAMALA MUSLIM JAMAATH, THATTAMALA,MAYYANADU,PIN-691020. 3. HANEEFAKUTTY,S/O.MUHAMMEDKUNJU, AGED 83 YEARS,PRESIDENT,THATTAMALA MUSLIM JAMA ATH,MAYYANADU,PIN-691020. BY ADV. SRI.T.R.RAJAN SRI.C.KHALID SRI.BADARUDEEN SRI.T.P.SAJID SRI.T.R.RAJAN SMT.P.VANDANA RESPONDENTS: PETITIONERS -------------------------- 1. ISSUDEEN @ ISSUDEEN KAVIL SHAKAFFI, S/O.HASBULLA,AGED 52 YEARS,CHARUVILA VEEDU, NEDUMPANA.P.O,MUTTAKAVU,KOLLAM,PIN-691580. 2. SHOUKATH,S/O.ABDUL KHADAR KUNJU,AGED 55 YEARS,PARAYARUVILA VILAYIL PUTHEN VEEDU, UMAYANALLOOR.P.O,VADAKKUMKARA,KIZHAKKENCHERRY, THAZHUTHALA,PIN-691589. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/07/2011, ALONG WITH CRP NO.276 OF 2011. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. Nos.215 and 276 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of July, 2011 JUDGMENT K.M. Joseph J., Both these civil revision petitions are filed against the interlocutory orders passed in O.S.No.5 of 2001 on the file of Wakf Tribunal, Kollam. The suit was filed by the petitioners in C.R.P. No.215 of 2011. The suit is filed for declaration and injunction to restrain the defendants/counter petitioners from conducting any meeting in the mosque or in the premises of the mosque or from causing any obstruction to the day to day affairs of the revision petitioners. They filed I.A No.67 of 2011 praying for an interlocutory injunction to restrain defendants 1 to 3 and their men. The said application was dismissed. It is against the same, C.R.P.No. 215 of 2011 is filed. C.R.P. Nos.215 & 276 of 2011 :2: 2. C.R.P. No. 276 of 2011 is filed by defendants 7 to 9 in O.S. No.5 of 2011. They filed I.A.No.133 of 2011 for appointment of a receiver. The said application was also dismissed. 3. We heard learned counsel appearing for the parties in both the cases. 4. The first respondent/defendant, according to the petitioners in C.R.P. No.215 of 2011, was the former imam. According to the petitioners, there were complaints against him and thereafter the committee decided to take action against the same. After following the procedures, the committee decided to remove the first respondent. He along with his associates were causing obstructions to the day-to-day affairs and it was under those circumstances the I.A. was filed, it is pointed out. The additional defendants 5 to 9, who are the petitioners in C.R.P. No.276 of 2011 prayed for issue of a direction for appointment of a receiver to collect the income of Jama-ath. It is their case that the counter petitioners are not collecting the offerings in the Kanikkavanchi of C.R.P. Nos.215 & 276 of 2011 :3: Jama-ath in the tomb and thereby they are causing loss to the Wakf. They further contend that the term of the office of the plaintiffs as office bearers has already expired and they are continuing in office without conducting fresh elections. It is also case that they have filed a petition before the the Wakf Board for conducting elections. 5. The Tribunal found that there is no petition filed by the petitioners before the Wakf Board alleging mis-management of funds by the mutavalli and that the appointment of a receiver is covered by Section 86 of the Wakf Act. It is also stated that though the period of the elected committee is expired, they are continuing as the mutavalli till the new committee is elected. It is also found that the petition will not come within the purview of Section 86 of the Wakf Act. 6. The reasoning of the Tribunal in dismissing the I.A. No.67 of 2011 is briefly as follows. The present committee took charge in the year 2008. Even after expiry of the period of the committee consisting of the petitioners 2 and 3, they are continuing as the C.R.P. Nos.215 & 276 of 2011 :4: committee members of the Jama-ath without conducting the election. It is noted that whether the action taken by the petitioners are in the interest of the majority of the beneficiaries of the first petitioner has to be considered and that there is nothing on record to show that the general body of the first petitioner was convened and a decision was taken as per the majority of the members of the first petitioner. It is pointed out that primafacie there is no material on record to show that the decision taken by the committee terminating the first respondent from the office is in the interest of the majority of the beneficiaries of the first petitioner Wakf. Injury would be caused to the first respondent, it is found. Hence the application was dismissed. 7. The learned counsel appearing for the first respondent in C.R.P. No.215 of 2011, Shri. T.H.Abdul Azeez would submit that the first respondent is not entitled to obstruct the committee. There is also no dispute that there is Kanichavanchi, wherein the offerings made by the devotees will be contained. As of now, it is stated to be C.R.P. Nos.215 & 276 of 2011 :5: overflowing. There is no dispute that arrangement must be made for taking the offering and accounting for the same, so that the interest of the Wakf is protected. Sri Abdul Azeez, learned counsel for the first respondent and for the petitioners in C.R.P. No.276 of 2011 would submit that it is a fit case for appointment of a receiver as the term of the elected committee has come to an end and there is a possibility of mis-appropriation and also not properly accounting the same. It is also submitted that the President and elected Secretary are not going to take the collection and they are actually making use of others for making collection. 8. On the other hand, Shri.C.Khalid, learned counsel for the petitioners in C.R.P. No.215 of 2011, who are also the respondents in C.R.P. No.276 of 2011, points out that in their affidavit filed before the Tribunal, they had agreed that they are prepared to go and collect funds in the presence of any persons including the petitioners in C.R.P. No.276 of 2011. We record the preparedness of the petitioners to hold the election at the earliest. C.R.P. Nos.215 & 276 of 2011 :6: 9. In the circumstances of this case, we notice that as far as injunction is sought by the petitioners in C.R.P. No.215 of 2011, the following facts are not in dispute. Petitions are the Jama-ath, the President and the Secretary. There is no dispute that as per the relevant clause, though their term is over, they can continue till the newly elected committee taken charge. We have already noted that the first respondent has no case that he intends to interfere with the administration , or obstruct in taking offerings from the Kanickavanchi by the elected members. The learned counsel for the petitioners in C.R.P. No.215 of 2011 would submit that they are prepared to take the offerings from the Kanickavanchi on every Friday after the congregation is over. 10. After having heard learned counsel for the parties we dispose of the C.R.Ps as follows: C.R.P. No.215 of 2011: We restrain respondents 1 and 2 or anyone at their instance from conducting any meeting in the mosque and from obstructing the day to day affairs of the first C.R.P. Nos.215 & 276 of 2011 :7: petitioner, including the collection of offerings from the Kanickavanchi. As far as the kanickavanchi is concerned, we further direct that at the time when the offerings are removed, the President and the Secretary shall be physically present. We record the submission of the petitioners in C.R.P. No.215 of 2011 that the amount so collected shall be immediately deposited in the account of the first petitioner on the same or the next day. We make it clear that the petitioners in C.R.P. No.276 of 2011 shall be entitled to be present at the time of offerings are taken, as aforesaid on every Friday after the congregation is over. Since it is submitted that the Kanickavanchi is overflowing, we direct that Wakf Board shall send any of its officers, and he shall be present at the time when the offerings are taken out on the first occasion. We direct that the Wakf Board will take up and dispose of the suit pending before it, within a period of three months from the date of production of a copy of this judgment. C.R.P. Nos.215 & 276 of 2011 :8: C.R.P. No.276 of 2011: In view of the decision that we have taken in C.R.P. No.215 of 2011 and that we are not inclined to interfere in the matter of appointment of a receiver, this C.R.P. is closed. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/