IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 CRP.No. 52 of 2007() -------------------- AGAINST THE ORDER DATED 11/10/2006 IN IA 173/06 IN WOS.28/2006 of WAKF TRIBUNAL, ERNAKULAM REVN. PETITIONERS: PETITIONERS/PLAINTIFFS 1. K.A.MOHAMMED, AGED 58 YEARS, SON OF ABDUL KHADER, KOLLAMPARAMBU, VATTEKKUNNAM, EDAPPALLY NORTH, KOCHI-682 024, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. ABDUL KAREEM, AGED 35 YEARS, SON OF SAINUDEEN, KANJIRATHINGAL, VATTEKKUNNAM, EDAPPALLY NORTH, KOCHI- 682 024, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.M.S.ABDUL RAHIM RESPONDENTS: RESPONDENTS/DEFENDANTS 1. VATTEKKUNNAM MUSLIM JAMA-ATH, EDAPPALLY NORTH P.O., KOCHI- 682 024. 2. P.K.ABDUL RAHIM, SON OF KUNJHU MOHAMMED, PARAPPURATH HOUSE, VATTEKKUNNAM, EDAPPALLY NORTH PO, KOCHI- 682 024. 3. KERALA WAKF BOARD, WAKF BUILDINGS, NEAR JAWAHARLAL NEHRU INTERNATIONAL STADIUM, KALOOR, KOCHI- 682 017. BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.T.B.HOOD SMT.M.ISHA SRIBEPIN PAUL SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- C.R.P. NO. 52 OF 2007 ---------------------------------------------------------------- Dated this the 19th day of March, 2008 O R D E R Kurian Joseph, J. The order dated 11.10.2006 in I.A. No.173 of 2006 in W.O.S. No.28 of 2006 on the file Wakf Tribunal, Ernakulam is under challenge in this revision. The above application was field by the petitioners/plaintiffs praying for an order of injunction restraining the second respondent therein from acting as a member in the proceedings of the first respondent/Jama- ath as a nominated member. According to the plaintiffs/petitioners, since the second respondent had been a member of the committee during the immediate preceding two terms, he could not have been nominated for a third term in view of Clause 12 D of Annexure A1 bye-laws. The Tribunal took the view that the prohibition in clause 12 D does not operate as a restriction on the right of a person being nominated any number of times in the committee. Hence, this revision. 2. According to the learned counsel appearing for the respondents, the practice followed in the first respondent/Jama-ath was to nominate the members without any restriction and to permit them to act as such C.R.P. NO.52/2007 2 continuously. It is further submitted that Clause 12 D prohibits only a person becoming a member as an elected member and not as a nominated member. Yet another submission is that nomination is not a matter of rule; it is only a matter of discretion of the elected committee. As specifically provided in the bye-laws, only 13 members are to be elected and they themselves can form a committee and only if these members feel the need for additional assistance, they need nominate two members. The fourth ubmission is that in case any person is aggrieved by the proceedings of the Jama-ath, it is for the aggrieved person to approach the Jama-ath under Clause 23 of the bye-laws and the Jama-ath will decide the dispute. It is submitted that instead of approaching the Jama-ath, they have approached the Tribunal and hence, the Tribunal ought to have dismissed the suit as premature. Now that the Tribunal has given an interpretation on the disputed clause, we feel that it is only in the interest of the parties that the matter is dealt with by this Court on merits. 3. Clause 12 D of the bye-laws deals with the Managing Committee of the first respondent/Jama-ath. Clause 12 A states that there shall be 13 members in the Managing Committee and they are to be elected from the general body and that the term of the elected Managing Committee is two years. Clause 12 B provides that the office bearers are C.R.P. NO.52/2007 3 to be elected from among the elected members of the Managing Committee. Clause 12 C states that for the smooth functioning of the committee, it will be open to the committee to nominate two persons as members. There are two restrictions as far as such nomination is concerned (i) both the members shall not be from the same ward and (ii) the nominated members shall not be persons who were defeated in the election. It is further provided in Clause 12 C that the nominated members also will have the same status as the elected members. Clause 12 D provides that nobody shall be a member for more than two terms consecutively. However, in case a person bags two-thirds majority, such person can be a member of the committee consecutively for more than two terms. 4. It is fairly clear that there are two aspects to Clause 12 D: (i) to the effect that nobody can be a member of the Committee for more than two terms consecutively and (ii) in case a person bags two-thirds majority of the elected general body, he can be a member consecutively for more than two terms. Therefore, in order to enable a person to be in the committee consecutively for more than two terms, he has to secure two- thirds majority. In the case of a nominated member that question does not arise since there is no election so as to secure two-thirds majority. We find C.R.P. NO.52/2007 4 it difficult to accede to the persuasive submission of the learned counsel appearing for the respondents that Clause 12 C is operative independent of clause 12 D. Clause 12 D specifically provides that nobody shall be a member in the committee for more than two terms consecutively. No distinction whatsoever is made as to whether the person going to the committee as a nominated member or an elected member. A conditional exception is given to elected members only. In that view of the matter, we find that the Tribunal has not properly appreciated the scheme of the bye-laws while passing the impugned order. 5. The impugned order is hence set aside. I.A.No.173 of 2006 is allowed. There will be a direction to the Wakf Tribunal to dispose of W.O.S. No.28 of 2006 within a period of one month from the date of production of a copy of this Order. The Civil Revision Petition is disposed of as above. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.52/2007 5 KURAIN JOSEPH & HAURN-UL-RASHID, JJ. C.R.P. NO.52/2007 O R D E R 19TH MARCH, 2008