Kottakalathil Ravi vs The Kerala State Wakf Board on 26 July, 2024

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Kerala High Court

Kottakalathil Ravi vs The Kerala State Wakf Board on 26 July, 2024

The present CRP is directed against the order dated 31.12.2015 of the Wakf Tribunal in O.A.No. 01/2014 whereby the claim of the petitioner in challenging the proceedings/notices contemplated to be issued under Section 52A of the Wakf Act has been dismissed.

2. Petitioner, against a valuable consideration, on 06.02.2003 purchased a property vide sale deed Ext.A3 from the members of the Jama-ath bearing registration No.333/2003. Jama-ath acquired some other commercial property in view of the receipt of the aforementioned sale deed. Section 51 (1A) of the Act introduced with effect from 01.11.2023 by Act No.27/2013 embodies that any sale, gift, exchange, mortgage or transfer of Wakf property without the permission of Wakf shall be void ab initio, and prior thereto, it was held to be voidable in case the property had been sold without the permission of the Wakf Board. Till 2014, WAKF CRP(WAKF) NO. 280 OF 2016 4 Board did not take any action and came out with a notice as per provisions of Section 52A of the Act directing to take criminal action. Apprehending that the petitioner may be evicted or sale deed may be held to be voidable as per the provisions of Sections 51 and 52 of the Act, invoked the jurisdiction of the Tribunal vide O.A.No.1/2014. The stand of the respondent - Wakf Board was that though prior to the amendment, the sale without sanction or permission of the Board would be voidable but the fact remains the Jama-ath did not take any permission and therefore, appropriate proceedings have been issued but did not deny the fact that sale deed was, so far, not challenged.

3. Sri. Mohamed Ravuf , learned counsel appearing on behalf of the respondent submitted that on 18.06.2011 an application was filed to Chief Executive Officer of the Wakf Board for rectification/granting permission of the alleged illegality in not obtaining the sanction of the Board but no action has been taken. Learned Tribunal on the basis of the aforementioned pleadings and evidence brought on record CRP(WAKF) NO. 280 OF 2016 5 dismissed the OA holding it to be premature.

4. Sri.R.Ramdas, learned counsel appearing on behalf of the petitioner contended that the findings of the Tribunal are wholly arbitrary and illegal much less fallacious for the reason that petitioner could not have been ousted on the ground that the petition was premature as Board had already expressed intention to initiate criminal proceedings, simultaneously the proceedings as provided under Section 52 of the Act. All these circumstances if had been looked into in correct perspective, petition could have decided on merits. In support of their contention relied upon the judgment of this Court in 2022 KHC 158 Karikunni puthiya purayil Hajira v. Kerala State Wakf Board & Another to contend that the penal provisions under Section 52A cannot be taken into consideration as it does not have any retrospective operation. In other words, it was submitted that any transaction done before 2013 would not attract the penal provisions of Section 52A of the Act.

5. On the other hand, Sri.Jamsheed Hafiz, learned CRP(WAKF) NO. 280 OF 2016 6 counsel appearing on behalf of the respondent - Wakf Board submitted that the provisions of section 108 of the Act has the overriding effect therefore should not be construed as inconsistent with the other Acts. It was further contended that prior to the causing of the amendment as per the provisions of the Act, any sale without the sanction of the Board was voidable.

6. We have heard the learned counsel for the parties and appraised the paper book.

7. Section 51 and 52 and 52A of the Act reads as under;

51. Alienation of waqf property without sanction of Board to be void.--2 [(1) Notwithstanding anything contained in the waqf deed, any lease of any immovable property which is waqf property, shall be void unless such lease is effected with the prior sanction of the Board:

Provided that no mosque, dargah, khanqah, graveyard, or imambara shall be leased except any unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013).

(1A) Any sale, gift, exchange, mortgage or transfer of CRP(WAKF) NO. 280 OF 2016 7 waqf property shall be void ab initio:

Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board:

Provided further that nothing contained in this sub- section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board:

Provided also that--

(a) the acquisition shall not be in contravention of the Places of Public Worship (Special Provisions) Act, 1991 (42 of 1991);

(b) the purpose for which the land is being acquired shall be undisputedly for a public purpose;

(c) no alternative land is available which shall be considered as more or less suitable for that purpose; and

(d) to safeguard adequately the interest and objective of the waqf, the compensation shall be at the prevailing market value or a suitable land with reasonable solatium in lieu of the acquired property.

52. Recovery of waqf property transferred in contravention of section 51.--(1) If the Board is satisfied, after making any inquiry in such manner as may be prescribed, that any immovable property of a 1 [waqf] CRP(WAKF) NO. 280 OF 2016 8 entered as such in the register of 1 [waqf] maintained under section 36, has been transferred without the previous sanction of the Board in contravention of the provisions of section 51 4 [or section 56], it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.

(2) On receipt of a requisition under sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order.

(3) Every order passed under sub-section (2) shall be served--

(a) by giving or tendering the order, or by sending it by post to the person for whom it is intended; or

(b) if such person cannot be found, by affixing the order on some conspicuous part of his last known place of abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates:

Provided that where the person on whom the order is to be served, is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be the service upon the minor.

(4) Any person aggrieved by the order of the Collector under sub-section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the Tribunal within whose jurisdiction the property is situate and the decision of the Tribunal on such appeal shall be final.

CRP(WAKF) NO. 280 OF 2016 9 (5) Where an order passed under sub-section (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board.

(6) In exercising his functions under this section the Collector shall be guided by such rules as may be provided by regulations.

[52A. Penalty for alienation of waqf property without sanction of Board.--(1) Whoever alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a waqf property, without prior sanction of the Board, shall be punishable with rigorous imprisonment for a term which may extend to two years:

Provided that the waqf property so alienated shall without prejudice to the provisions of any law for the time being in force, be vested in the Board without any compensation therefor.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) any offence punishable under this section shall be cognizable and non-bailable.

(3) No court shall take cognizance of any offence under this section except on a complaint made by the Board or any officer duly authorised by the State Government in this behalf.

CRP(WAKF) NO. 280 OF 2016 10 (4) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this section.] 8. On perusal of Sub-section 1A of Section 51 introduced by way of amendment 2013 any alienation under any of the expressions used therein would be void. Thus, for all intends and purposes before the introduction of the aforementioned amendment the sale deed was not held to be void. Petitioner's status in our considered view is of a bonafide purchaser as per the provisions of Section 41 of the Transfer of Property Act which cannot be said to be inconsistent with the provisions of Wakf Act and therefore, the Board cannot be permitted to take assistance or aid of the provisions of section 108 of the Act. Moreover, no explanation has come forth for not taking up the matter almost for ten (10) years. Be that as it may. No steps have been taken on the application dated 18.06.2011 submitted by the Jama-ath for granting permission but despite that application is pending and notice under Section 52A has been issued. Section 52A CRP(WAKF) NO. 280 OF 2016 11 was inserted with effect from 01.11.2013. But it would not relate back to any transaction prior to that date. Therefore, the notice was fully void and illegal and should have been pondered by the Tribunal in terms of the observations recorded above.

Accordingly, O.A.No.1/2014 is allowed. Notice is quashed in terms of the observation as well the fact that the provisions of Section 52A was introduced with effect from 01.11.2013 and the Board is directed to take a call on the application in terms of the observation recorded herein and consider in a pragmatic way, as expeditiously as possible, within a period of four months.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE nak

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