Kerala High Court
P.K. Abdul Rahiman vs Kottol Central Juma Mazjid on 11 February, 2013
Bench: K.Hema, A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HON'BLE MR. JUSTICE A.HARIPRASAD
MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934
CRP.No. 840 of 2005
-----------------------
JUDGMENT IN WOA.5/2002 of WAKF TRIBUNAL, ERNAKULAM
ORDER IN PETITION.29/2000 of WAKF TRIBUNAL, ERNAKULAM
............
REVISION PETITIONERS/APPLICANTS/PETITIONERS::
1. P.K. ABDUL RAHIMAN, S/O. KUNJU MUHAMMED,
PONNAMEMKATTI, P.O. PAZHANJI, DO. DO.
2. P.A. MUHAMMED, S/O. ALMUNNI,
PONNAMEMKATTU, P.O. PAZHANJI, DO. DO.
3. PATHUMMU, D/O. UMMER, PONNAMEMKATTU P.O.,
KADAVALLOOR, THALAPPILLY TALUK, DO. DO.
ADDL.4. KHADEEJA, W/O. LATE ABDULLA,
AGED 58 YEARS, MALIYEKKAL HOUSE,
KADAVALLOOR P.O., KARAKKAD VIA., NORTH KOTTOL.
5. RAZACK, S/O. LATE ABDULLA, 41 YEARS, DO.
6. KUNHALI, S/O. ABDULLA AGED 39, DO. DO.
7. FATHIMA, D/O. LATE ABDULLA, AGED 36, DO. DO.
8. MOHAMMED, S/. LATE ABDULLA, AGED 32, DO. DO.
9. ISMAIL, S/O. ABDULLA,AGED 28, DO.
10. UBAID, S/O. ABDULLA, AGED 22 YEARS, DO. DO.
BY ADV. SRI.T.H.ABDUL AZEEZ
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1. KOTTOL CENTRAL JUMA MAZJID,
REP. BY ITS PRESIDENT, KOTTOL CENTRAL
JUMA MAZJID COMMITTEE, P.O. PAZHANJI
THRISSUR DISTRICT., PIN-680 542.
2. THE SECRETARY, KOTTOL CENTRAL JUMA
MAZJID COMMITTEE, P.O. PAZHANJI,
THRISSUR DISTRICT PIN-690 542.
3. KERALA WAKF BOARD REP. BY ITS CHIEF
EXECUTIVE OFFICER, WAKF BOARD OFFICE,
PARAMARA ROAD, COCHIN-18.
R1 & 2 BY ADVS. SRI.BABU KARUKAPADATH
SRI.K.A.NOUSHAD
R3 BY ADVS. SRI.P.A.ABDUL JABBAR
SRI.M.M.SAIDU MUHAMMED
SRI.K.SHIBILI NAHA
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
11-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.Hema & A.Hariprasad, JJ.
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C.R.P.No.840 of 2005
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Dated this the 11th day of February, 2013
ORDER
Hema, J.
An application was filed under Sections 32 and 70 of the Wakf Act ('the Act' for short) before the Kerala Wakf Board ('the Board' for short) by petitioners 1 to 3 and another (whose legal representatives are shown as additional petitioners 4 to 10 in this revision). They are the descendants of deceased Beeravunny Musliar. They sought for a declaration that they have right to get half share of the income derived from the Jaram (tomb) of deceased Beeravunny Musliar. They also sought for a direction against respondents 1 and 2 herein to distribute half share of the income to them.
2. As per the averments in the petition, deceased Beeravunny Musliar was a Saint and he died on 22.03.1976. It was decided to bury his dead body in the graveyard of Kottol Central Juma Masjid ('Juma Masjid' for short) even though there was an opinion among the members of the family of deceased CRP 840/05 2 Beeravunny Musliar to bury the dead body in the premises of 'Namaskara Pally' near his family house. After the burial, a tomb was constructed and people from different walks of life started making offerings and prayers. Juma Masjid collected the income from the tomb.
3. Decesed Beeravunny Musliar was survived by his two brothers and sister. He had also two pre-deceased brothers. The applicants were the descendants of deceased Beeravunny Musliar. A dispute arose between them and Juma Masjid regarding the share of income derived from the "Jaram". The dispute was later settled in a mediation and it was decided that 1/6 share of income from the Jaram has to be paid to the descendants of deceased Beeravunny Musliar.
4. The said decision was implemented. First respondent started paying the amount to the descendants of deceased Beeravunny Musliar till 26.07.1998, on which day, third petitioner received a letter from first respondent stating that there was no deserving persons to receive the share of income from the Jaram. It was also stated in the letter that Juma Masjid committee decided that if the descendants prove within three months that CRP 840/05 3 they are the legal heirs who are entitled to receive the amount, the committee will continue to pay the amount.
5. On receipt of the said letter, a representation was given by the applicants to the President of Juma Masjid on 23.08.1998. But, a reply dated 30.08.1998 was given by the first respondent stating that they were fully convinced that applicants were not entitled to receive the amount and that 1/6 share of the income was intended to be given only to the then surviving siblings of deceased Beeravunny Musliar during their life time. A lawyer notice was, therefore, sent to respondents 1 and 2 demanding the share of income from the Jaram. A reply was sent raising false and frivolous contentions.
6. Respondents 1 and 2 filed written objection before the Board contending that applicants were not the legal representatives of deceased Beeravunny Musliar. It is admitted that income from the Jaram is collected by the Wakf. But, according to respondents, some amount was given to the descendants of deceased Beeravunny Musliar from time to time, considering their poverty. The statement that legal heirs of deceased Beeravunny Musliar were given the share of income as CRP 840/05 4 of right is denied.
7. According to respondents, a few years back, some of the applicants came forward with a demand to make payment in favour of them and there was a discussion in 1980's in the presence of Sri.E.K.Aboobacker Musliar. A decision was taken to give the income from Wakf to the then living legal representatives of deceased Beeravunny Musliar and accordingly, amounts were given to them from time to time until their death. The committee is convinced that present family members of deceased Beeravunny Musliar are in good financial position and they are not entitled to any financial aid from Mosque and hence, the committee stopped the payment. Respondents also contended that applicants are not entitled to get any benefit of the income derived from the Wakf and that the petition is liable to be dismissed.
8. Before the Board, PWs 1 to 3 were examined and Exts.A1 to A7 were marked on the side of applicants in support of their contentions. Ext.B1 series were marked on the side of respondents 1 and 2. The Board after considering the rival contentions held that petitioners are not entitled to get any CRP 840/05 5 amount or financial aid from the Wakf as of right. The contention raised by respondents that amounts were given as gift to the descendants of deceased Beeravunny Musliar was accepted.
9. The Board also found that as long as applicants do not prove as to what was the understanding in the mediation or whether they had any right to get the amount from the Wakf, they have no right to get any relief as prayed for. It was also held that the right claimed by petitioners is a civil right and it does not come under the provisions of the Act and the Board has no jurisdiction to grant the relief. The petition was dismissed.
10. Applicants took up the matter in appeal before the Wakf Tribunal ('Tribunal' for short). During the pendency of the appeal, first applicant died and his legal representatives were impleaded as additional applicants 5 to 11. Tribunal confirmed the finding of the Board and held that applicants cannot make any claim for income generated from the Jaram, "as of right". It is also held that evidence of PWs 1 and 2 conclusively prove that descendants of deceased Beeravunny Musliar were poor and a decision was taken in mediation to give 1/6 share of the income to the applicants considering their weak financial condition. The CRP 840/05 6 finding of the Board that the right claimed by petitioners is a civil right and that Board cannot decide the dispute is held to be not sustainable. It was held that the Board is competent to decide the dispute and the appeal was dismissed and hence this revision.
11. Heard both sides. Perused the records. The records reveal that descendants of deceased Beeravunny Musliar filed an application under Sections 32 and 70 of the Act before the Board for a declaration that they have right to get half share of the income derived from the Jaram of deceased Beeravunny Musliar. They also sought for a direction against respondents 1 and 2 to distribute half share of the income to them. Both these prayers were turned down by the Board. The decision of the Board was confirmed by Tribunal.
12. Challenging the legality, propriety and correctness of the said decision, this petition is filed. To consider whether the decision is in order, it is necessary to understand the scope of Section 70 of the Act. Section 70 reads as follows:
"Inquiry relating to administration of Wakf:- Any person interested in Wakf may make an application to the Board supported CRP 840/05 7 by an affidavit to institute an inquiry relating to the administration of the Wakf and if the Board is satified that there are reasonable grounds for believing that the affairs of the Wakf are being mismanaged, it shall take such action thereon as it thinks fit."
13. As per Section 70 of the Wakf Act, any person interested in a Wakf is entitled to make an application to the Board supported by an affidavit to institute an inquiry relating to administration of the Wakf. If the Board is satisfied that there are reasonable grounds for believing that affairs of the Wakf are being mismanaged, it shall take such action, as it thinks fit. The averments and allegations made in the petition filed before the Board reveal that petitioners have serious grievance regarding administration of the Wakf especially since they were denied half share of the income generated from the Jaram to which they are allegedly entitled to.
14. The grievance of the petitioners is that by denying the share of income from the Jaram, affairs of the Wakf are being mismanaged by Juma Masjid. Petitioners, therefore, requested the Board to issue direction under Section 32 of the Act against respondents 1 and 2 to give the share of income from the Jaram CRP 840/05 8 to the descendants of deceased Beeravunny Musliar, to which they are entitled to. Section 32 of the Act deals with powers, duties and functions of the Board. Section 32 of the Act (excluding the portions which are not necessary for disposal of this revision) reads as follows:
"Powers and functions of the Board:- (1) Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such Wakfs were created or intended:
Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the Wakif, the purposes of the Wakf and any usage or customs of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs. Explanation.- For the removal of doubts, it is hereby declared that in this sub-section, "Wakf" includes a Wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act.
(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-
(a) xxxxxxx
(b) to ensure that the income and other property of Wakfs are applied to the objects CRP 840/05 9 and for the purpose for which such Wakfs were intended or created;
(c) to give directions for the
administration of Wakfs;
(d) xxxxxxx
(e) to direct-
(i) xxxxxxx
(ii) in what manner the income of a
Wakf, the objects of which are not evident
from any written instrument, shall be utilized.
(iii) in any case where any object of Wakf has ceased to exist or has become incapable of achievement, that so much of the income of the Wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community:
Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;
Explanation.- For the purposes of this clause, the powers of the Board shall be exercised-
(i) xxxxxxx
(ii) xxxxxxx xxxxxxx
(f) xxxxxxx
(g) xxxxxxx
(h) xxxxxxx
(i) xxxxxxx
(j) xxxxxxx xxxxxxx
(k) xxxxxxx CRP 840/05 10
(l) xxxxxxx
(m) xxxxxxx
(n) xxxxxxx
(o) xxxxxxx (3) xxxxxxx (4) xxxxxxx (5) xxxxxxx xxxxxxx (6) xxxxxxx".
15. Section 32(1) relates to powers of the Board. Section 32(2) lays down the functions of the Board. As per Section 32(1), the general superintendence of all Wakfs in a State shall vest in the Board and the Board has the duty to exercise its powers under the Act to ensure that Wakfs under its superintendence are properly maintained, controlled and administered. Under Sections 32(1) and 32(2) of the Act, it is also the duty of the Board to ensure that income from the Wakfs is duly applied to the "objects" and also for "purposes" for which such Wakfs were created or intended.
16. Under Section 32(2)(e) of the Act, the Board can direct in what manner the income of a Wakf shall be utilised, if the objects of the Wakf are not evident from any written CRP 840/05 11 instrument relating to the same. From a reading of Section 32 of the Act, it is clear that even without any application, the Board can exercise its powers and discharge its functions because it shall be the duty of the Board to ensure that income from the Wakf is not mismanaged.
17. The proviso to sub-section (1) of Section 32 of the Act lays down that powers shall also be exercised by the Board in conformity with the direction of the Wakif and any usage or custom of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs. This is without prejudice to the generality of the power under Section 32(1). Thus, under Section 32 of the Act, it shall be the power, duty and function of the Board to ensure that Wakfs are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such Wakfs were created or intended.
18. It is relevant to note that in various sub clauses of Section 32, specific reference is made to the "objects and the purposes for which the Wakfs were intended or created". As per the proviso to Section 32(1) of the Act, powers of the Board can CRP 840/05 12 be exercised only in consonance with the objects and purposes for which the Wakf is created or intended. It shall also be done in conformity with the directions of the Wakif. If there is any usage or custom of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs, it shall ascertain what was such usage, custom, etc.
19. In cases in which it is not indicated as per any written instrument in what manner income of the Wakf is to be utilised, the Board is empowered to direct how the income has to be utilised. Section 32(2)(e)(iii) of the Act even indicates how the income is to be dealt with in cases where the object of the Wakf has ceased to exist or has become incapable of achievement. However, it is also laid down that in cases falling under Section 32(2)(e)(iii) of the Act, no direction regarding the income shall be given, without giving the affected parties an opportunity of being heard.
20. Thus, in the light of the provision contained in Section 32 of the Act, it is abundantly clear that when a dispute arises relating to the income derived from the Wakf or the manner in which the income has been utilised or if any allegation of CRP 840/05 13 mismanagement regarding utilisation of income by the Wakf is raised, it is necessary for the Board to look into the various factors laid down in the sub-clauses of Section 32 of the Act. Unless the Board ascertains as to what are the "objects and the purposes for which the Wakfs were created or intended", it will not be possible to issue appropriate direction relating to the income from the Wakf as stated in Section 32 of the Act.
21. Having understood barely what are the powers, duties and functions of the Board in administering, maintaining and controlling the Wakf, we shall come to the facts of this case. Respondents admitted in the written statement that income from the Jaram has been treated as "Wakf property" and it was being administered by the Juma Masjid Committee. There is also no dispute that income derived from the Jaram is also treated as Wakf property. But, regarding the manner in which income derived from the Jaram is utilised by the respondents, there is serious dispute. Petitioners raised objection before the Board that respondents are denying their right to get share of income derived from the Jaram.
CRP 840/05 14
22. The records reveal that it is not for the first time that such a dispute was raised. It is an admitted case that on an earlier occasion also, a dispute arose whether income from the Jaram is to be given to the legal heirs of deceased Beeravunni Musliar or not and there was a mediation by Sri.E.K.Aboobacker Musaliar and it was decided that first respondent shall give 1/6 share of the income to the brothers and sister of deceased Beeravunni Musaliar. Accordingly, payments were also effected, as borne out by the documents and as admitted by respondents. Such payment continued up to 1986, for a long period of ten years, after the death of Beeravunni Musaliar on 22.03.1976.
23. According to petitioners, descendants of deceased Beeravunni Musliar were getting the share of income from the Jaram, as of right, whereas, respondents would contend that they have no right to get any amount from the income, but it was given only as gift. Learned counsel for petitioners brought to our notice that endorsement in Exts.A1 and A2 would clearly show that the amount was given by respondents to the descendants of deceased Beeravunni Musliar, "as of right" and not as charity or gift, as contended by respondents. A specific mention is made to CRP 840/05 15 the word "right" in the documents, it is submitted.
24. However, respondents have a definite case that as in the case of any Wakf, income derived from the Jaram was utilised by respondents for aiding the poor. The decedents of deceased Beeravunni Musliar being in a poor financial condition, respondents decided to give some aid to them also and that is why amount was given from the income of the Wakf. It is also pointed out by learned counsel for respondents that Ext.B1 receipts will reveal that amount was paid only as a gift and not "as of right".
25. In the light of the above rival contentions, the Board was bound to resolve the dispute between the parties and discharge its functions and duties under Section 32. Only if the Board ascertains as to what are the "objects and purposes for which the Wakf was created or intended" and various other relevant aspects referred to in Section 32, the Board will be able to give directions as sought for by appellants. Without looking into the various aspects as are referred to in Section 32 (such as, whether there is any direction from Wakif, whether there is any written instrument, usage or custom, etc.), the Board cannot CRP 840/05 16 exercise its powers and functions as required under law, take a decision and issue necessary directions as contemplated under Section 70 read with Section 32 of the Act.
26. It is pertinent to mention here that scheme of the provisions in Sections 32 and 70 of the Act strongly indicate that the proceedings initiated before the Tribunal under the said provisions are not akin to any proceedings commenced before a Court of Law. In a proceedings before a court, the function of the court may be to find out whether the applicant has any legal right, whether he made relevant assertions to support his alleged legal right to obtain the relief sought for and also whether he proved such assertions and thereby discharged his burden of proof, etc. But, unlike the court, the Board is given general superintendence of all Wakfs in the State and it is given certain powers, duties and functions which the Board is bound to discharge.
27. Therefore, the function of the Board is not merely to see whether a party, who approaches the Board, discharged his burden of proof or not. The Board has higher responsibility, duties, functions and powers to be discharged under Section 32 CRP 840/05 17 of the Act. Such powers are given to the Board by the legislature with a definite intention. It is to ensure that there is no mismanagement of Wakf property or income derived thereof. It is amply evident from Section 32 of the Act that functions and duties under the said provision are to be discharged even in the absence of any application being made to the Board by any person.
28. It shall be the duty and function of the Board to ensure that Wakfs are properly maintained, controlled and administered and the income thereof are properly utilised, in accordance with the objects and purposes for which such Wakfs are created or intended. The power given to the Board under Section 32 is not for the sake of mere formality. The Board is expected to exercise its powers to ensure that Wakf is properly administered, maintained and controlled and the "income" from the Wakf is not meddled up with anybody.
29. It must also to be borne in mind that while exercising its powers, duties and functions in respect of Wakf and its income, utmost care and caution must be taken by the Board and directions shall be issued only in conformity with the objects and CRP 840/05 18 purposes for which the Wakf is created or intended, etc., as stated in Section 32 of the Act. But, unfortunately, the Board proceeded as though the burden is on the petitioners to prove the various aspects to get an order from the Board. The Board seems to have misunderstood that its duty is only to see whether petitioners discharge their burden.
30. The Board, therefore, held that petitioners failed to prove their case relating to the terms of mediation by Sri.E.K.Aboobacker Musliar, etc. and found fault with petitioners for their failure. The Board did not take any effort to consider what were the "objects" or "purposes" for which the Wakf was created or intended. It also did not look into whether there is any written instrument relating to the manner in which income of the Wakf is to be utilized. It has also not considered whether any object of the Wakf ceased to exist or has become incapable of achievement due to death of the descendants of deceased Beeravunni Musliar, etc.
31. If any person interested in the Wakf brings to the notice of the Board that income from the Wakf is not utilised in a proper manner and income is not given to persons who are CRP 840/05 19 entitled to receive the same, Board is bound to consider whether there is any merit in the allegations made. It must ensure that Wakf is managed rightly and its income are utilised in consonance with the objects and purposes for which the Wakf is created or intended, etc. It must consider whether any direction can be issued by the Wakf in relation to use of income from the Wakf consistent with the provisions contained in Section 32 of the Act.
32. In short, the Board shall consider all relevant aspects referred to in Section 32 of the Act and see whether any direction is to be issued as stated in Section 32. These are expected to be done, even if the person who makes the application proves his assertions or not. The failure, if any, to discharge the burden is no reason at all to reject his application under Section 70 read with Section 32 of the Act. The Board shall only treat filing of the petition only as a reminder to discharge its duties and functions under Section 32 and utilise such opportunity to ensure that Wakf and its income are properly administered, controlled and maintained for this purpose.
CRP 840/05 20
33. The Board shall, therefore, call for the relevant records, instead of waiting for the aggrieved to produce or cause production of relevant records to prove the allegations relating to mismanagement of Wakf, etc. It is the duty of the Board to ensure that income from the Wakf is applied in conformity with the objects, purposes etc. for which the Wakf is created or intended, as laid down in Section 32 of the Act. This is all the more so, since certain serious allegations by petitioners which not appear to be mere allegations, without any basis. Certain documents are produced by petitioners in support of their contentions.
34. The Board, however, appears to have not taken required effort to look into any of the matters referred to in Section 32 of the Act. Though it was brought to the notice of the Board that there was a mediation regarding the manner in which income is to be used, the Board seems to have overlooked such assertions and put the burden on the petitioners to prove the relevant aspects, forgetting the fact that it is the duty and function of the Board to consider such aspects. CRP 840/05 21
35. However, to take a right decision in the matter by the Board on the facts of this case, it is necessary to collect relevant materials and evidence touching various aspects relating to the controversy. But, we cannot, in this proceedings, resolve the factual dispute between the parties by exercising the power under Section 89(2) of the Act. We have only considered the legality, propriety and correctness of the impugned order, which alone is permitted under Section 89(2) of the Act. We are satisfied that this is a fit case where the Board must have a re- look into entire matter and take appropriate decision in the case.
36. The rival contentions are to be considered once again, by keeping in mind that it is the power, duty and function of the Board to ensure that Wakf and its income are properly dealt with, irrespective of whether petitioners fail to discharge their burden of proof. We also make it clear that Board can exercise its powers even suo motu to get the relevant documents produced or witnesses examined as are necessary for taking a right decision in the matter, in accordance with law.
37. Any way, we are satisfied that Board has not addressed itself to the relevant issues and its attention has not CRP 840/05 22 vbeen directed or focused on most relevant aspects under Section 32 of the Act. The Tribunal also committed the same mistake by ignoring to note the scope and the scheme of the relevant provisions of the Act. However, no case law was brought to our attention touching the various aspects considered in this revision. Hence, the impugned order is vitiated by illegality and impropriety and it deserves intervention in this revision. We are constrained to set aside the impugned order and remand the matter for fresh consideration and disposal, in accordance with law. Hence, the following order is passed:
(1) The impugned order is set aside.
(2) The matter is remanded to the Board, for fresh consideration and disposal in accordance with law in the light of the observations made in this judgment.
(3) Parties shall appear before the Wakf Board on 20.3.2013.
This petition is allowed.
(K.Hema, Judge) (A.Hariprasad, Judge) tkv