Excommunication Illegal Under Wakf Act, Infringes Fundamental Rights: Kerala High Court

In a notable judgment, the Kerala High Court has held that ex-communication or externment, whether declared or undeclared, is illegal and impermissible under the Wakf Act.The Court further declared that any bye-law or scheme in relation to the administration of the Wakf Property authorising ex-communication is also illegal as it infringes the fundamental rights guaranteed by the Constitution.

A division bench comprising Justice SV Bhatti and Justice A Badharudeen was deciding a civil revision petition challenging the orders of the Wakf Tribunal and the State Wakf Tribunal. The petitioner complained of "ooruvilakku" (ex-communication) imposed by the members of a Juma Masjid Mahallu Committee. The Tribunal and the Board rejected his petition saying that the ex-communication was not established by records.

While deciding the revision, the High Court observed that "the seminal issue crops up for consideration is; whether ooruvilakku, externment and excommunication is legally permissible?".

The Court said that the facts revealed that the petitioner belonged to Jama-ath Islami faction of Muslim community and the Mosque has been managed by Sunni faction of the Muslim community having different ideologies. The Court noted that difference of opinion mainly in the matter of implementation of ideologies is embedded in this matter. In this background, the Court opined that the complaint of the petitioner was probable though no records are available. The Court referred to the situation as "implied" or "undeclared" ex-communication. In this backdrop, the Court stated :

"..we hold that 'ooruvilakku', externment and excommunication either express/declared or implied/undeclared are illegal as these powers are not traceable from the letter and spirit of the Waqf Act"

The Court further declared :

"We hold further that any provisions in the bye-law or scheme in relation to administration of a Jama-ath or Waqf property authorising 'ooruvilakku', externment and excommunication are also illegal, since the same would infringe the fundamental rights guaranteed by the Constitution of India".

The Court directed that there should be no "ooruvilakku", whether declared or undeclared, against the petitioner and that the Juma Masjid should function as per the Wakf Act.

The petitioners were represented by Senior Advocate T.H. Abdul Azeez and Advocate Mohammed Sadique T.A. while the respondents were represented by Standing Counsel Jamsheed Hafiz, Standing Counsel for Waqf Board T.K. Saidalikutty, Standing Counsel for State Waqf Board T. P. Sajid, Senior Advocate P. Vijay Bhanu, Advocates Ajeesh K. Sasi and Pooja Pankaj.

Case Title : PV Kassim vs Kakkattiri Juma Masjid Mahallu Committee and others

Citation: 2022 LiveLaw (Ker) 66

Click here to read/download the judgment