Is the Chairperson of the Kerala State Waqf Board ('the Waqf Board' for short) holding an 'office of profit under the Government of the State' and therefore disqualified for being chosen as a member of the Legislative Assembly ?

2. The election of the first respondent to the Kerala Legislative Assembly from the Guruvayoor Legislative Assembly Constituency has been called in question in this Election Petition. The petitioner also seeks a declaration that he is the duly elected candidate from the said Constituency for having secured the next highest number of votes. The petitioner owed allegiance to the Indian Union Muslim League and contested the election with the support of the United Democratic Fund. The first respondent owed allegiance to the Communist Party of India (Marxist) and contested the election with the support of the Left Democratic Fund. The first respondent was declared elected by a margin of 9968 votes in the election held on 13.4.2011 and the other respondents in the Election Petition are the remaining candidates in the poll fray.

3. The challenge to the election is on the ground that the first respondent was holding an office of profit under the State of Kerala as the Chairperson of the Waqf Board at the material time. This Court earlier by judgment dated 16.11.2011 dismissed the Election Petition as not maintainable on the premise that it did not disclose a cause of action. This judgment was however set aside by the Supreme Court by judgment dated 29.8.2014 in Civil Appeal Nos.69-70 of 2012 and the Election Petition remanded for trial. The Chief Executive Officer of the Waqf Board, the Returning Officer, the Principal Secretary to the Revenue Department and the petitioner were examined. The first respondent alone contested the Election Petition maintaining that the Chairperson of the Waqf Board is not holding an office of profit under the Government of the State as alleged.

4. The Chief Executive Officer of the Waqf Board proved Ext.X1 Government Order sanctioning the payment of honorarium and the telephone bills in regard to the Chairperson. He also proved Ext.X2 series Travelling Allowance bills submitted by the Chairperson in addition to Exts.X3, X4 and X5 letters relating to the resignation of the Chairperson. The documents pertaining to the Travelling Allowance, use of the official car and the payment of fees and allowances to the members were marked Exts.X6 to X10. The Returning Officer proved Ext.Y1 objection filed by the petitioner and Ext.Y2 notes of arguments put in by the first respondent. He also proved Ext.Y3 nomination filed by the first respondent and Ext.Y4 letter addressed by the Chief Executive Officer forwarding the letter of resignation. The Principal Secretary to the Revenue Department proved Ext.Z1 letter of resignation put in by the first respondent and Ext.Z2 notes of the Government accepting the resignation. The proceedings relating to the convening of the meeting of the members of the Waqf Board to elect another Chairperson as the Successor were marked Ext.Z3. The petitioner proved Exts.Z4 and Z5 queries obtained under the Right to Information Act relating to the resignation and the drawing of emoluments by the first respondent. The first respondent did not mount the witness box and the documentary evidence adduced is not much germane since there is hardly any factual dispute.

5. I heard Mr. K. Ramakumar, Senior Advocate on behalf of the petitioner and Mr. M.K. Damodaran, Senior Advocate on behalf of the first respondent.

6. The first question to be considered is as to whether the Chairperson of the Waqf Board is holding an office of profit in order to be disqualified to be chosen as a member of the Legislative Assembly. The Chief Executive Officer has deposed that the Chairperson is entitled to travelling allowance for the meetings in addition to honorarium. The same would be paid out of the funds of the Waqf Board constituted by way of grant from the State Government as well as