In the High Court of Kerala
Antony Dominic, Dama Seshadri Naidu, JJ.
Kunhimuhammed & Others - Petitioners
Versus
Palakkottu Issathul Islam Sangam, Represented by its President & Others - Respondents
CRP No. 54 of 2011
Decided On : 17-06-2016
Wakf Act, 1995 - Section 83 - Code of Civil Procedure, 1908 - Order XIV, Rule 1 - Locus standi - Ex debito justitia - Lis pendence - Held, Further polemics on the semantic shades cannot be avoided concerning 'person interested' if we acknowledge that S.83 of the Act has put both the person affected and the person interested on the same pedestal. In the facts and circumstances, we hold that the issue of standing or locus standi is a mixed question of law and fact requiring the parties to lead evidence on the issue.
Dama Seshadri Naidu, J.
1. Faced with successive rejections before two for a on the issue of standing, the unsuccessful petitioners have filed this revision petition.
2. The facts in brief are that the petitioners-eight in number-have claimed to be the members of the first respondent Sangam, apart from being interested persons as the beneficiaries of the Wakf maintained by the Sangham. Their grievance is that the Sangam, a registered body, is being maintained contrary to its byelaws. They allege that no elections have been held in the managing committee of the Sangam for a long time and that it has been managed by the third and fourth respondents, the self-proclaimed President and the Secretary of the Sangam, to the detriment of the Sangam. They have also made a specific allegation that vast wakf properties in the control of the Sangam are being mismanaged. In the backdrop of the above allegations, the petitioners have sought the following reliefs before the Wakf Board, Ernakulam, in O.P.No.40 of 2009.
“a. a decree directing the 3rd and 4th respondents to convene the general body of the 1st respondent committee after duly serving notice to the all general body members including the petitioners;
b. appointing an Advocate Commissioner to supervise the general body election process of the 1st respondent committee and to ensure that the provisions of the bye-law of the 1st respondent committee are complied with while it convenes the general body; and
c. a perpetual prohibitory injunction restraining the respondents and their henchmen from cutting and removing the kuzhikoors in the petition schedule properties and from in any way encumbering the petition schedule properties and alienating the petition schedule properties without the sanction of the Wakf Board;
3. Looking at the array of the respondents, we gather that the first and second respondents are one and the same, i.e. the Sangam. In the first instance, it is represented by its president; in the second, by its secretary. The third and fourth respondents are said to be the President, and Secretary arrayed nominee given the plea on the petitioners’ part that they have never been duly elected, but self-proclaimed.
4. The counter affidavit was filed by one Mr. T.P. Mohammed Haji and the 4th respondent, who also represents the second respondent. Apart from traversing the allegations made by the petitioners, the respondents have taken a specific plea that the petitioners are not the members of the general body of the Sangam and that they have no locus standi or authority to file the Original Petition. In that context, they have pleaded that maintainability ought to be decided as a preliminary issue.
5. Meeting the petitioners’ contentions on merits, the respondents have specifically averred that the President and Secretary have been duly elected, that the Sangam is being managed strictly under the bye-laws, that the office bearers of the Sangam have been striving for the common good of the community, and that they have made no efforts to misuse or diminish the value of the Wakf properties, including felling of trees as had been alleged by the petitioners.
6. Because of the specific plea taken by the respondents concerning the petitioners’ standing to maintain the Original Petition, the Wakf Board has framed the following issues:
i. Whether the Wakf Board has a jurisdiction to entertain the petition?
ii. Whether the petitioners filed the proper affidavit as contemplated under Section 70 of the Wakf Act?
iii. Whether the petitioners have the locus standi to file the Original Petition?
7. On merits, the Wakf Board has returned its findings in petitioners’ favour on issues 1 and 2. On issue No.3, however, the Board has come to a definite conclusion that the petitioners have produced no material to show they are the members of the Sangam; on the said premise, concluding that the petitioners are strangers, the Board dismissed the O.P. at the threshold as not maintainable.
8. Aggrieved, the
Muhammed Kunju v. Biju (2008 (2) KLT 833)
Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai (2015 (6) SCC 412)
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