Thiruvathra Jama-Ath Committee v. The Chief Executive Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 6TH DAY OF MARCH 2015/15TH PHALGUNA, 1936 WP(C).No. 32469 of 2014 (G) ----------------------- PETITIONER(S):

------------- THIRUVATHRA JAMA-ATH COMMITTEE AGED 65 YEARS THIRUVATHRA P.O, CGAVAKKAD, THRISSUR - 680 516 REPRESENTED BY ITS PRESIDENT, A.C ZAINUDHEEN HAJI. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.U.VINOD KUMAR SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR RESPONDENT(S):

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1. THE CHIEF INTERIM MUTHAVALLI KERALA STATE WAKF BOARD, V.I.P ROAD, KALOOR KOCHI- 17.

2. KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF INTERI MUTHAVALLI V.I.P ROAD, KALOOR, KOCHI - 17.

3. K.A.YOUSUF SENIOR SUPERINTENDENT, HEAD OFFICE KERALA STATE WAKF BOARD, VIP ROAD, KALOOR KOCHI - 17.

ADDL.R4: K. NAVAS, S/O. BEERU SAHIB, KARUTHA HOUSE, TIRUVATHRA, P.O. CHAVAKKAD PIN. 680 515 ADDL.R5: P.M. HAMZA, S/O. MOIDU, PALLIPARAMBIL HOUSE, THIRUVATHRA, P.O. CHAVAKKAD PIN - 680 56 ADDL. R4 & R5 ARE IMPLEADED AS PER ORDER DATED 6-32015 IN I.A. NO. 17395/2014 ADDL R4 & R5 BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY), ADV. SRI.T.M.VASUDEVAN & ADV. SRI.N.P.AMMU R2 BY SC SRI.K.SHIBILI NAHA, KERALA STATE WAKF BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 32469 of 2014 (G) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------------- P1- A TRUE COPY OF THE ORDER DT. 18.11.14 OF THE 1ST RESPONDENT.

A.M. SHAFFIQUE, J.

............................................................ .............................................................. Dated : 6th March, 2015

JUDGMENT

Ext.P1 order dated 18-11-2014 issued by the Chief Executive Officer of the Kerala Wakf Board, is under challenge. By virtue of Ext. P1, an order is issued by the Chief Executive Officer appointing one Mr. K.A. Yousuf, Senior Superintendent, Head Office, Kerala State Wakf Board as interim Mutavally-cumReturning Officer for carrying out the day-to-day affairs and administration of Thiruvathra Jama-ath Palli and the institutions under it and to conduct election to the Jama-ath Committee , within a period of three months. The order came to be issued stating that though the election was conducted in 2009, the administration was not handed over to the elected committee. He proceeded on the basis that the committee now administrating the

affairs of the Wakf is an unauthorised Committee, and, therefore, there is a vacancy. In the result, it is felt that it is proper to appoint an interim Mutavalli in terms of Section 63 of the Wakf Act, 1995. 2.

The facts involved in the above Writ Petition would disclose that there are certain disputes with regard to the functioning of the elected body, as a result of which Ext. P1 order came to be issued. This is challenged by the Committee who claims to be the Committee in-charge, inter alia, contending that Ext.P1 order is issued without jurisdiction, as the power under Sec. 63 can be invoked only by the Board which was not in office during the relevant time. Further it is contended that the powers of the Board cannot be delegated to the Secretary/ChiefExecutive Officer and that even the Board has no power to ratify the same. It is argued that the petitioner is the duly constituted committee and no vacancy of Mutavalli is existing, as stated in

Ext.P1.

3. Counter affidavit has been filed by the 2nd respondent, inter alia, stating that there was deadlock in the management of the institution, which was required to be rectified by appointing a Muthavalli and conducting election in accordance with the procedure prescribed. It is further submitted that the action taken by the Chief Executive Officer was ratified by the Board in the meeting held on 30-12-2014.

4. Heard the learned counsel for the petitioner and the learned counsel appearing for the Wakf Board as well as the impleading applicants.

5. The short issue to be considered is whether Ext. P1 has been issued in accordance with the provisions of the Act. It is not in dispute that the Chief Executive Officer cannot exercise the power of the Board under Section 63 of the Wakf Act. Then the

only question is whether the Board can ratify Ext. P1 issued by the Chief Executive Officer. When an order has been issued without jurisdiction, the question of ratification does not arise for consideration. An order can be ratified only if it is issued in accordance with the procedure prescribed. If the Chief Executive Officer had no power to issue an order appointing a Muthavalli by exercising the power of the Board and even by way of delegation, the Board does not have the power even to ratify the said action. Under such circumstances, without going into the merits regarding the other contentions urged, Ext. P1 is liable to be quashed.

6. Learned counsel for the Board submits that the Board is now in office. Under such circumstances, it shall be open for the Board to take appropriate action in accordance with law. They shall do so after giving notice to all the affected parties.

In the result, this Writ Petition is allowed. Ext. P1 is quashed. There will be a direction to the Wakf Board to take appropriate action in accordance with law.

Sd/- A.M. SHAFFIQUE (Judge) ani/ /true copy/ P.S. to Judge