IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 19644 of 2009(A) ------------------------ PETITIONER(S): ------------------------ 1. V.S.KAREEM SHAH, S/O.SAINUDHEEN, VELIYANKODE HOUSE, THIRUVATHRA (PO), CHAVAKKAD, THRISSUR (DT) 2. C.S.SHAHUL HAMEED, S/O.SEETHI, CHINGANATH HOUSE, THIRUVATHRA (PO), CHAVAKKAD, THRISSUR (DT) 3. PELA HANEEFA, S/O.KUNHIMON, PELA HOUSE, THIRUVATHRA (PO), CHAVAKKAD, THRISSUR (DT) BY ADVS. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL SMT.P.A.PRIYA RESPONDENT(S): ------------------------- 1. KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, ERNAKULAM. 2. THIRUVATHRA JUMA-ATH COMMITTEE, THIRUVATHRA, REPRESENTED BY ITS SECRETARY, THIRUVATHRA (PO), CHAVAKKAD, THRISSUR (DT) 3. MUSLIM MAHAL COMMITTEE, THIRUVATHRA REPRESENTED BY ITS SECRETARY, THIRUVATHRA (PO),CHAVAKKAD, THRISSUR (DT) 4. P.N.SUJEER, ADVOCATE COMMISSIONER AND RETURNING OFFICER, THIRUVATHRA JAMA-ATH PALLI, RESIDING AT PUTHUVEETTIL, NAKKOLAKKAL, MARANCHERY (PO), MALAPPURAM (DT) 5. REGISTRAR OF SOCIETIES, THRISSUR. ...2/- WP(C).No. 19644 of 2009(A) -2- *ADDL. R6 & R7 IMPLEADED *6. K. NAVAS, S/O. K. BEERU SAHIB, THE NEWLY ELECTED PRESIDENT OF THIRUVATHRA JUMAATH COMMITTEE, THIRUVATHRA (P.O.), CHAVAKKAD TALUK, THRISSUR (DT) *7. P.M. HAMZA, S/O. MOIDU, THE NEWLY ELECTED SECRETARY OF THIRUVATHRA JUMAATH COMMITTEE, THIRUVATHRA (P.O.), CHAVAKKAD TALUK, THRISSUR (DT) *ADDL.R6 & R7 ARE IMPLEADED AS PER ORDER DT. 14/8/2009 IN IA. NO. 10027/2009. **ADDL. R8 IMPLEADED **8. JAFAR, AGED 30 YRS., S/O. HAMZA, MAKKIRAKATH HOUSE, P.O. THIRUVATHRA, THRISSUR. **ADDL.R8 IS IMPLEADED AS PER ORDER DTD. 23/9/10 IN I.A. NO. 12913/10. R1 BY ADV. SRI.M.M.SAIDU MUHAMMED, SC, WAKF BOARD R2 BY ADVS. SRI.T.K.AJITH KUMAR SRI.P.VINODKUMAR R3 , R6 & R7 BY ADV. SRI.P.K.ABOOBACKER (EDAPPALLY) R4 BY ADV. SRI.SHOBY K. FRANCIS R5 BY GOVT. PLEADER R8 BY ADV. SRI. P. CHANDRASEKHAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- WP(C).No. 19644 of 2009(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE REGISTRATION CERTIFICATE. EXT.P2 : COPY OF THE BYE-LAWS OF THE 2ND RESPONDENT SOCIETY. EXT.P3 : COPY OF THE REGISTRATION CERTIFICATE OF THE 3RD RESPONDENT SOCIETY. EXT.P4 : COPY OF THE BYE-LAWS OF THE 3RD RESPONDENT SOCIETY. EXT.P5 : COPY OF THE ORDER DATED 23.12.2003, PASSED BY THE 1ST RESPONDENT. EXT.P6 : COPY OF THE ABOVE ORDER OF THE 1ST RESPONDENT DATED 24.3.2007. EXT.P7 : COPY OF THE NOTIFICATION, APPLICATION AND TERMS AND CONDITIONS. EXT.P8 : COPIES OF THE ACKNOWLEDGMENT GIVEN BY 4TH RESPONDENT TO THE PETITIONERS SHOWING ACCEPTANCE OF THEIR APPLICATIONS. EXT.P9 : COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT. EXT.P10 : COPY OF THE NOTICE PUBLISHED BY THE 4TH RESPONDENT. EXT.P11 : COPY OF THE VOTERS LIST. EXT.P12 : COPY OF THE NOTICE DATED 20.6.2009. EXT.P13 COPY OF THE NOTIFICATION PUBLISHED IN MADHYAMAM DAILY DATED 26.6.2009. EXT.P14 COPY OF THE ELECTORAL ROLL CONSISTING 1159 VOTERS PUBLISHED BY THE 4TH RESPONDENT. EXT.P15 COPY OF THE OBJECTION DATED 2.7.2009. EXT.P16 COPY OF THE JUDGMENT REPORTED IN HAJI P. LIYAKATH ALIKHAN V.K.UNEENKUTTY SAQUAFI & OTHERS (ILR 2005 (4) KER.530) (Contd...) WP(C).No. 19644 of 2009(A) RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT DATED 6.6.2003 REJECTING THE APPLICATION FILED BY MR. P.M. HAMZA. EXT.R2(b) : COPY OF THE COMPLAINT FILED BY R2 BEFORE THE INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM. EXT.R2(c) : REPLY OF THE INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM DATED 23.6.2003. EXT.R2(d) COPY OF THE APPLICATION FILED BY MR. SHIHABUDHEEN DATED 13.4.2003 AND THE REPLY GIVEN BY R2 DATED 15.4.2003. EXT.R2(e) COPY OF THE LETTER DATED 18.4.2003 GIVEN BY MR. SHIHABUDHEEN TO R2. EXT.R2(f) COPY OF THE JUDGMENT DATED 22.10.2007 IN WP(C) NO. 13910/07. EXT.R2(g) COPY OF THE JUDGMENT IN RP 1132/07 DATED 23.11.2007. EXT.R2(h) COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 20.3.2009. EXT.R2(i) COPY OF THE JUDGMENT IN WP(C) NO. 19527/09 DATED 13.7.2009. EXT.R2(j) COPY OF THE OBJECTION DATED 15.9.2007 FILED BY THIS RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.R-4(A) COPY OF THE LETTER DATED 1-5-07 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT. EXT.R-4(B) COPY OF THE LETTER DATED 17-7-07 ISSUED BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT. EXT.R-4(C) COPY OF THE REPRESENTATION DATED 22-8-07 ISSUED BY THE PRESIDENT OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT. EXT.R-4(D) COPY OF THE BYE-LAW SEALED ON 5-9-07 BY THE 2ND RESPONDENT ISSUED TO 4TH RESPONDENT. EXT.R-1(a) PHOTOSTAT COPY OF JUDGMENT DATED 6-7-09 IN WP(C) NO. 18320/09. EXT.R-1(b) PHOTOSTAT COPY OF JUDGMENT DATED 13-7-09 IN WP(C) NO. 19527/09. (Contd...) WP(C).No. 19644 of 2009(A) EXT.R6 A PHOTOCOPY OF THE RELEVANT PORTION OF THE REGISTERED BYELAW UNDER THE SOCIETIES REGISTRATION ACT. EXT.R6 B PHOTOCOPY OF THE LETTER DATED 22.10.2007 ISSUED BY THE DISTRICT REGISTRAR (GENERAL). EXT.R6 C PHOTOCOPY OF THE JUDGMENT DATED 2.7.2003 BY THIS HON'BLE COURT IN WP(C) 18662 OF 2003. EXT.R6 D PHOTOCOPY OF THE ORDER DATED 20.3.2009 BY THE WAKF BOARD IN E.P. NO. 7203/RA. EXT.R6 E PHOTOCOPY OF THE MINITUES DATED 17.7.2009 BY WHICH THE EXECUTIVE MEMBERS WERE ELECTED. EXT.R6 F PHOTOCOPY OF THE MINUTES DATED 21.7.2009 BY WHICH THE OFFICE BEARERS WERE ELECTED. EXT.R6 G PHOTOCOPY OF THE REPORT DATED 29.7.2009 OF THE ADVOCATE COMMISSIONER. EXT.R6 H PHOTOCOPY OF THE LETTER DATED 1.5.2007 BY THE 2ND RESPONDENT TO THE ADVOCATE COMMISSIONER. EXT.R6 I PHOTOCOPY OF THE WAKF DEED NO. 940/2008 DATED 9.4.2008 OF THE CHAVAKKAD SUB REGISTRY. //TRUE COPY// P.A. TO JUDGE Mn P.R.RAMACHANDRA MENON, J ....................... W.P.(C).19644/2009 ....................... Dated this the 16th day of June, 2011 JUDGMENT The main issue forming the subject matter of the writ petition is based on whether the property is a 'wakf property' or the one belonging to the second respondent, which is a Society. The petitioner is constrained to approach this Court, because of the 'election' to the concerned Committee as ordered by the first respondent/Wakf Board. An Advocate Commissioner was appointed to conduct the election notified. It is seen from the materials on record; particularly the interim order in W.P.(C).19644/2009, that the main controversy was whether the respondents 2 and 3 are to be dealt with in terms of the 'Wakf law' or otherwise; the second respondent being a Society registered under the Societies Registration Act. After considering the issue, this Court, as per interim order dated 24.7.2009, directed that the 'Election Committee' shall not assume office until further hearing on interim relief; simultaneously permitting the petitioners to continue provisionally, with liability to account. The position continues even on this day. W.P.(C).19644/09 2 2. During the course of hearing, it is rather conceded that the matter is pending consideration before the first respondent , before whom Ext.P15 petition preferred by the petitioner is still to be finalized. Taking note of the rival contentions and the nature of the relief sought for, this Court finds that the matter has to be decided by the first respondent/Board at the first instance, especially with regard to the crucial question as to whether the property in question is a 'Wakf' or a 'Society property'. 3. The learned counsel for the petitioner submits that by virtue of the mandate under Section 40(3) of the Act, it is the duty of the Wakf Board to conduct an enquiry and to decide the issue; simultaneously stating that the petitioner will file an application in this regard before the first respondent within two weeks. If such an application is filed, same shall be dealt with and a decision shall be rendered, after hearing all the parties concerned including respondents 2, 3, 6 and 7 and such others if any, as found to be fit by the first respondent, in accordance W.P.(C).19644/09 3 with law. Proceedings shall be finalised at the earliest, at any rate, within 'three months' thereafter. 'Status quo' ordered by this Court as per the interim order dated 24.7.2009 will continue till such time. 4. It is made clear that further steps pursuant to Ext.P5 shall be subject to the decision to be taken by the first respondent as above. Writ petition is disposed of. P.R.RAMACHANDRA MENON, Judge mrcs