T.H. NAVAS v. KERALA STATE WAQF BOARD, VIP ROAD, KALOOR, KOCHI

SRI JAMSHEED HAFIZ - STANDING COUNSEL- KERALA STATE WAKF BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.30215 of 2022 2 J U D G M E N T The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging his disqualification and expulsion the 2nd respondent-Ilfathul Islam Sangam (Ponnurunni Jama Ath) Administrative Committee as per Ext.P1 communication dated 21.03.2021.

2. According to the petitioner, the 2nd respondent took the decision as per Ext.P1 disqualifying him from the Managing Committee of the said Jama Ath and excommunicating him stating the reason that he had cheated the Jama Ath and did not pay Rs.9,00,000/- towards PF arrears in connection with the functioning of a School. The petitioner would contend that he had paid the entire monthly contribution upto 31.12.2022 and that no amount is due from the petitioner to the 2nd respondent towards EPF/ESI contribution. A suit instituted by the petitioner before the Munsiff’s Court, Ernakulam as O.S.No.353 of 2021 is said to have been returned by the said court on 20.07.2022 stating that the said court has no jurisdiction to entertain that suit. The petitioner and other members of the Jama Ath are also said to have filed O.P.No.88 of 2021 before the first respondent Wakf Board to declare all decisions taken by the 2nd respondent Jama Ath after 27.12.2020 as illegal W.P.(C).No.30215 of 2022 3 and void. The above petition is said to have been finally disposed of by the first respondent as per Ext.P5 order dated 07.04.2022 by appointing the 3rd respondent as Interim Muthavalli cum Returning Officer. The former Secretary and Managing Committee members of the 2nd respondent challenged Ext.P5 order before this Court by filing W.P.(C) No.14257 of 2022 which was disposed of vide Ext.P6 judgment dated 30.06.2022 appointing Adv.Mrs.Amrin Fathima and Adv.Mrs.Shaniba T.T as Commissioners to assist the 3rd respondent in the preparation and finalisation of voters list and for the peaceful conduct of election to the 2nd respondent Jama Ath with the direction that the election has to be completed within eight weeks from the date of Ext.P6 judgment. Thereafter, the nomination submitted by the petitioner to contest the election to the Managing Committee of the 2nd respondent is said to have been rejected on the basis of an objection raised by the 4th respondent, a member of the 2nd respondent Jama Ath. The Returning Officer allegedly rejected the nomination of the petitioner on the ground that the General Body of the 2nd respondent Jama Ath had disqualified the petitioner, and that the petition filed by the petitioner before the 1st respondent as O.P.No.88 of 2021 was dismissed vide Ext.P5 order. As per Ext.P7 proceedings dated 20.09.2022 of the 3rd respondent in connection with the scrutiny of the nominations for the election to the Managing W.P.(C).No.30215 of 2022 4 Committee of the 2nd respondent, the nomination of the petitioner was rejected for the reason that he incurred pecuniary liability in connection with the default in payment of PF and ESI, and that the General Body of the 2nd respondent had disqualified the petitioner. It is also stated thereunder that O.P.No.88 of 2021 filed by the petitioner against the above decision of the General Body, had been dismissed by the 1st respondent.

3. The petitioner challenges his excommunication and expulsion from the 2nd respondent Jama Ath by virtue of Ext.P1, and contends that Ext.P7 proceedings of the 3rd respondent rejecting his nomination for the election to the Managing Committee of the 2nd respondent Jama Ath Committee, is also vitiated by illegality. Thus, he seeks a declaration that Ext.P1 and P7 decisions are null and void and not liable to be implemented. The petitioner also seeks a writ of mandamus directing the 1st respondent to consider the question of validity of Ext.P1 and to take a decision thereon without delay, and a further direction to respondents 1 and 3 to postpone the election to Ward No.4 of the 2nd respondent Jama Ath till the validity of Ext.P1 is considered and decided by the 1st respondent.

4. Despite service of notice, respondents 2 to 4 did not appear or contest the proceedings. W.P.(C).No.30215 of 2022 5

5. The learned Standing Counsel for Kerala State Wakf Board appeared for the 1st respondent.

6. Heard the learned counsel for the petitioner and the learned Standing Counsel who represented the 1st respondent.

7. As regards the prayer challenging Ext.P7 decision of the 3rd respondent, rejecting the nomination of the petitioner for the election to the Managing Committee of the 2nd respondent Jama Ath scheduled to 25.09.2022, and disqualifying him from contesting the said election, it is pointed out by the learned Standing Counsel for the 1st respondent that the said relief sought for in this writ petition has become infructuous since the said election was already over. It is also pointed out by the learned Standing Counsel for the 1st respondent that the dispute pertaining to the pecuniary liability incurred by the petitioner with the 2nd respondent in connection with the default in remittance of provident fund and ESI amount, cannot be adjudicated in the instant case instituted under Article 226 of the Constitution of India.

8. There is substance in the above argument advanced by the learned Standing Counsel for the 1st respondent. It is seen from Ext.P7 proceedings that the nomination of the petitioner to the election to the Managing Committee of the 2nd respondent scheduled W.P.(C).No.30215 of 2022 6 to 25.09.2022 was rejected for the reason that he incurred pecuniary liability with the 2nd respondent in connection with the default in payment of provident fund and ESI amount and that the General Body of the 2nd respondent Jama Ath had disqualified him for acting against the rules and regulations of the Jama Ath and instituting O.P.No.88 of 2021 against the General Body decision of the 2nd respondent.

9. Among the above reasons stated by the 3rd respondent in Ext.P7 for disqualifying the petitioner from contesting the election to the Managing Committee of the 2nd respondent-Jama Ath, the issue relating to the default in the payment of provident fund and ESI amount, cannot be dealt with in this proceedings. Obviously, for the said reason, it is not possible for this Court to adjudicate whether the rejection of nomination of the petitioner for the election of the Managing Committee of the 2nd respondent scheduled

25.09.2022, was justified or not. However, the decision of the 2nd respondent resorting to life-long expulsion of the petitioner from the 2nd respondent-Jama Ath, is liable to be interfered with, to the extent to which it would amount to an externment, excommunication or ‘Ooruvilakku’, which is per se illegal.

10. It has been held by a Division Bench of this Court in Kassim P. V. v. Kakkattiri Juma Masjid Mahallu Committee W.P.(C).No.30215 of 2022 7 and Others [2022 (1) KHC 330] that Ooruvilakku, externment excommunication either express/declared implied/undeclared, are illegal, as these powers are not traceable from the letter and spirit of the Wakf Act. It was further observed in the said decision that any provision in the bye-law or scheme in relation to administration of a Jama Ath or Wakf property authorizing Ooruvilakku, externment and excommunication are also illegal, since the same would infringe the fundamental rights guaranteed by the Constitution of India.

11. Having regard to the above settled position of law, proscribing declared or undeclared excommunication and externment from the Society, Ext.P1 decision of the 2nd respondent is liable to be interfered with, to the extent to which it amounted to life-long disqualification of the petitioner from the 2nd respondent- Jama Ath Committee. However, the decision in this regard would no way affect the right of the 2nd respondent to initiate and prosecute appropriate proceedings, as per law, against the petitioner in connection with the alleged default on the part of the petitioner in making remittance of provident fund and ESI amount.

12. In the result, this Writ Petition is disposed of, interdicting Ext.P1 decision of the 2nd respondent, to the extent to which it W.P.(C).No.30215 of 2022 8 amounted to permanent disqualification and externment of the petitioner from the 2nd respondent-Jama Ath Committee. However, it is made clear that this order would no way affect the right and authority of the 2nd respondent to initiate and prosecute appropriate proceedings for the realisation of any amount, if found to be due from the petitioner under any account. (sd/-) ANIL K. NARENDRAN, JUDGE (sd/-) jsr/vgd G. GIRISH, JUDGE W.P.(C).No.30215 of 2022 9 APPENDIX OF WP(C) 30215/2022 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF LETTER DATED 21-03-2021 OF PRESIDENT OF PONNURUNNI JAMA ATH PALARIVATTOM Exhibit P1(a) Exhibit P2 Exhibit P2(a) Exhibit P3 TRUE ENGLISH TRANSLATION OF EXHIBIT P1 TRUE COPY OF THE RECEIPT DATED 08-09-2022 ISSUED BY THE OFFICE OF ILFATHUL ISLAM SANGAM (JAMA ATH COMMITTEE) ENGLISH TRANSLATION OF EXHIBIT P2 TRUE COPY OF THE PLAINT IN OS NO.353/2021,MUNSIFF COURT ERNAKULAM Exhibit P4 TRUE COPY OF OP NO.88/2021 OF THE PETITIONER BEFORE THE KERALA STATE WAQF BOARD Exhibit P5 TRUE COPY OF THE ORDER DATED 07-04-2022 IN OP NO. 88/2021 OF THE KERALA STATE WAQF BOARD Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 30-06-2022 IN WP(C) NO.14257 OF 2022 OF THIS HON'BLE COURT Exhibit P7 TRUE COPY OF THE ORDER DATED 20-09-2022 OF RETURNING OFFICER Exhibit P7(a) Exhibit P8 ENGLISH TRANSLATION OF EXHIBIT P7 TRUE COPY OF THE ORDER DATED 14-12-2021 IN CRE (WAQF) NO.442/2016 OF THIS HON'BLE COURT