Kerala High Court
Attakoya Kinattinakara vs Kunhibi Pulippinakkad on 4 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 4TH DAY OF OCTOBER 2024 / 12TH ASWINA, 1946
CRP(Waqf) NO. 17 OF 2021
(AGAINST THE ORDER DATED 18.03.2020 IN W.T.(O.A.)NO.1/2016 OF THE
WAQF TRIBUNAL, LAKSHADWEEP, KAVARATTI)
REVISION PETITIONERS/APPLICANT:
ATTAKOYA KINATTINAKARA,
AGED 57 YEARS
KAVARATTI ISLAND, U.T. OF LAKSHADWEEP.
BY ADVS.
T.H.ABDUL AZEEZ
K.P.MAJEED
RESPONDENTS/RESPONDENTS:
1 KUNHIBI PULIPPINAKKAD,
KAVARATTI, U.T. OF LAKSHADWEEP, PIN-682 555.
2 THE CHIEF EXECUTIVE OFFICER,
LAKSHADWEEP STATE WAQF BOARD, KAVARATTI,
U.T. OF LAKSHADWEEP, PIN-682 555.
BY ADVS.
SRI.JAMSHEED HAFIZ, SC, WAKF
LAL K.JOSEPH
P.MURALEEDHARAN (THURAVOOR)
T.A.LUXY
SURESH SUKUMAR
KOYA ARAFA MIRAGE
ANZIL SALIM
CHACKO MATHEWS K.
CRP(Waqf) NO. 17 OF 2021 -2-
2024:KER:75627
R.V. SREEJITH
THIS CRP (Waqf ACT) HAVING BEEN FINALLY HEARD ON
04.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRP(Waqf) NO. 17 OF 2021 -3-
2024:KER:75627
JUDGMENT
EASWARAN S. The applicant before the Waqf Tribunal in W.T. (O.A.) No. 1 of 2016 is the revision petitioner. The revision petitioner - applicant was the respondent in W.C. No. 12 of 2013 on the files of Lakshadweep State Waqf Board, Kavarathi. The first respondent claimed to be a dejure Mutawalli of Thekkeputhiyapalli Waqf in Kavaratti Island. It is stated that he was functioning as Mutawalli after the death of Pookoyakeleyam, the son of founder, one Kinattinakkara Muhammed. Pookoya died on 31.8.2002. The Waqf was dedicated as per the partition deed No.62 of 1997 executed by Muhammed and others. There is a clear recital in the partition deed that 'A' schedule property was allotted to Kinattinakkara Muhammed when the partition effected between Kinattinakkara and Pulipinikkad tharawads in the year 1952. It is also contended that the said Muhammed had registered the Thekkuputhiyapalli before the CRP(Waqf) NO. 17 OF 2021 -4- 2024:KER:75627 Lakshadweep State Wakf Board and it was shown as Serial No.211 in the list of Wakfs published by the Union Territory of Lakshadweep and Kinattinakkara Muhammed was showed as Mutawalli. As per notice dated 07.03.1968 the Wakf Board gave direction to the founder Mutawalli to submit accounts. The said Pookoya had submitted annual returns of the income and expenditure for the years 2010-11 and 2011-12, then directions was given by the Waqf Board as per notice dated 07.06.2012. Though he claimed that he had submitted the annual report before the Board, after the death of Mutawalli, further gave intimation to the Waqf Board under Section 42 of the Wakf Act, 1995 regarding the change of Mutawalli. However, by mistake and on a wrong advice, on 13.12.2012 he requested the Board to enter his name as Mutawalli in place of Pookoya. Though the Waqf Board published the notification for inviting objection nobody came with any objection within thirty(30) days of the publication of notice. However, CRP(Waqf) NO. 17 OF 2021 -5- 2024:KER:75627 later a notice was issued asking the petitioner to appear before the Board on 24.05.2013. The said notice was issued on an application by the first respondent seeking himself to be appointed as Mutawalli of Thekkuputhiyapalli. Though he appeared before the Waqf Board and showed cause, an impugned order was passed on 15.01.2016 by which the committee was appointed as Mutawalli for the management and supervision of Thekkuputhiyapalli for the period of five(5) years. It is challenging the said order, the revision petitioner approached the Waqf tribunal. The tribunal after considering the relevant materials on record came to the conclusion that the Waqf board was entitled to appoint a committee as Mutawalli when the post became vacant on the death of the former Mutawalli and hence found no infirmity or illegality in the order under challenge.
2. We have heard Sri.T.H.Abdul Azeez, learned counsel appearing for the revision petitioner, CRP(Waqf) NO. 17 OF 2021 -6- 2024:KER:75627 Sri.Jamsheed Hafiz, learned Standing Counsel for the second respondent and Sri.Lal K. Joseph, learned counsel appearing for the first respondent.
3. The learned counsel for the revision petitioner Sri.T.H.Abdul Azeez confined his argument to one issue. According to the learned counsel, when the existing Mutawalli died, the revision petitioner had filed an application to include his name as Mutawalli in the register of Waqf. Though notice was issued inviting objections as to the appointment of the petitioner as Mutawalli, the Lakshadweep Waqf board did not take any action on the said application. It is without considering the said application, the Waqf board proceeded to consider the request of the first respondent and therefore there is a clear violation of the provisions of the Waqf act. According to the learned counsel for the revision petitioner, without deciding the first application, the Board could not have decided the second application and passed the impugned order which lead to the filing CRP(Waqf) NO. 17 OF 2021 -7- 2024:KER:75627 of the appeal before the tribunal. The tribunal also did not consider the appeal in its true perspective and erroneously found that the Board was entitled to appoint the Mutawalli for the purpose of management of the mosque.
4. On the other hand the learned counsel appearing for the respondents supported the order and submitted that there is no illegality and impropriety in the order passed by the Waqf Board as confirmed by the appellate tribunal.
5. We have considered the rival submissions raised across the Bar and perused the order impugned.
6. It is admitted fact by both sides that the first application of the applicant for appointing himself as the Mutawalli was pending and although objections were invited, no objections are raised. That be so, we are of the considered view that the second application could not have been decided by the Waqf Board without rendering its findings on the first application. Since, no CRP(Waqf) NO. 17 OF 2021 -8- 2024:KER:75627 decision has been taken by the Waqf Board either accepting or rejecting the request of the petitioner, we are of the considered view that the orders impugned in the revision petition cannot be sustained. The Waqf Board is required to take a fresh decision on the application submitted by the revision petitioner without any delay. The further management of the mosque will depend upon the decision so arrived by the Waqf Board.
7. Since we have already found that the Waqf Board could not have decided the application submitted by the first respondent without deciding the application submitted by the petitioner, and in order to enable the Waqf Board to take a fresh decision on the same, the order dated 18.03.2020 in W.T.(O.A.) No.1 of 2016 of the Waqf Tribunal, Lakshadweep and also order dated 15.01.2016 in W.C.No.12 of 2013 before the Lakshadweep State Waqf Board, Kavarathi are liable to be set aside. Accordingly, the revision petition is allowed. The order in W.T.(O.A.) No.1 of 2016 CRP(Waqf) NO. 17 OF 2021 -9- 2024:KER:75627 confirming the order dated 15.01.2016 in W.C.No.12 of 2013 is set aside. Parties are directed to appear before the Waqf Board on 01.11.2024. The Waqf Board shall decide the claim of the revision petitioner for appointment of Mutawalli and thereafter proceed with the application submitted by the revision petitioner at first instance and thereafter depending upon the decision, proceed with the application submitted by the first respondent. The Lakshadweep State Waqf Board shall take a decision in the application after hearing the parties concerned and also permitting them to adduce evidence, if any, and decide the same at any rate within a period of two(2) months from the date of the appearance. Till such time the decision is taken, the status quo as on today shall be maintained by the parties.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE vv