Kerala High Court
Thorayil Juma Masjid Mahhalu Committee vs Kerala Wakf Board on 28 September, 2006
Equivalent citations: 2008(1)KLJ202
Author: Kurian Joseph
Bench: Kurian Joseph, K.T. Sankaran
ORDER Kurian Joseph, J.
1. Wakf Tribunals have been set up under the Wakf Act, 1995 (hereinafter referred to as 'the Act') for the determination of disputes, questions and other matters relating to Wakf and Wakf property. The Act also contemplates the Tribunal to act as an appellate authority in certain circumstances prescribed under the Aet. Powers of superintendence over the Wakfs is conferred on the Wakf Board. Whether an order passed by the Wakf Board in exercise of its appellate jurisdiction under Section 72(7) of the Act is liable to be challenged before the Wakf Tribunal under Section 83 as a dispute, question or matter relating to wakf is the issue to be considered in this case.
2. Petitioner is the petitioner in O.P. 3/2004 on the file of the Wakf Tribunal, Kozhikode. The Chief Executive Officer of the Wakf Board issued a demand notice directing payment to the tune of Rs. 2,50,094/- as contribution for the years 1994-95 to 2001-02, after due assessment under Section 72 of the Act. The petitioner preferred an appeal before the Wakf Board, under Section 72(7). The appeal was disposed of by the Wakf Board remanding the matter for fresh consideration to the Chief Executive Officer, with a condition to deposit 25% of the demand. It was against that order, the petitioner filed the Original Petition before the Wakf Tribunal, Kozhikode. The Tribunal held that the order passed by the Wakf Board in exercise of its appellate jurisdiction under Section 72(7) of the Act is final and hence a further adjudication as if in a second appeal is not contemplated under Section 83(2) and dismissed the petition. The said order is under challenge in this Civil Revision Petition.
3. Learned Counsel for the petitioner contends that notwithstanding the order passed by the Chief Executive Officer or the Wakf Board, in case there is a dispute over a matter relating to the wakf, that is liable to be adjudicated under Section 83 of the Act. It is all the more so, since the jurisdiction of the civil court is barred and the exclusive jurisdiction for such adjudication is that of the Wakf Tribunal. Still further it is contended that any person interested or aggrieved by an order made under the Act or Rules is entitled to approach the Tribunal for the determination of such dispute/matter relating to the wakf. Reliance is placed on the Bench decision of this Court in Pookoya Haji v. Cheriyakoya . Learned Counsel for the respondent however contends that the order passed by the Wakf Board having attained finality, it is not liable to be the subject matter of a further adjudication before the Tribunal.
4. In order to appreciate the rival contentions taken by the parties, it is necessary to refer to the provisions dealing with the issue. Wakf Board is established under Section 13 of the Act. Section 32 which prescribes the powers and functions of the Board, to the extent relevant reads as follows:
32. Powers and function 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 as to exercise its powers under this Act as to ensure that the wakfs under its superintendence are property 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;
xxxxxxxxxxxxxx (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be~
(a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every wakf.
(b) to ensure that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were intended or created;
(c) to give directions for the administration of wakfs;
(d) to settle schemes of management for a wakf:
Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard.
xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx
(l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the wakf property as the Board may, from time to time, require;
(m) to inspect, or cause inspection of, wakf properties, accounts, records or deeds and documents relating thereto;
(n) to investigate and determine the nature and extent of wakf and wakf property, and to cause whenever necessary, a survey of such wakf property;
(o) generally do all such acts as may be necessary for the control, maintenance and administration of wakfs.
(3) Where the Board has settled any scheme of management under Clause (d) or given any direction under Clause (e) of Sub-section (2), any person interested in the wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directives and the decision of the Tribunal thereon shall be final.
Section 72 provides for annual contribution payable to the Board and the procedure of assessment. Section 72(6) reads as follows:
72(6) - Where, after the commencement of this Act, the mutawalli of a wakf fails to submit a return of the net annual income of the wakf within the time specified therefor or submits a return which, in the opinion of the Chief Executive Officer is incorrect or false in any material particular, or which does not comply with the provisions of this Act or any rule or order made thereunder, the Chief Executive Officer may assess the net annual income of the wakf to the best of his judgment or revise the net a annual income as shown in the return submitted by the mutawalli and the net annual income as so assessed or revised shall be deemed to be the net annual income of the Wakf for the purpose of this Section:
Provided that no assessment of net annual income or revision of return submitted by mutawalli shall be made except after giving a notice to the mutawalli calling upon him to show cause, within the time specified in the notice, as to why such assessment or revision of the return shall not be made and every such assessment or revision shall be made after considering the reply, if any, given by the mutawalli.
Any mutawalli who is aggrieved by the assessment or revision thereof made by the Chief Executive Officer under Sub-section (6) of Section 72 is entitled to file an appeal before the Wakf Board and the Board may after hearing the appellant confirm, reverse or modify the assessment or revision or the return and the decision of the Board in the appeal is final. Sub-section (7) of Section 72 reads as follows:
Any mutawalli who is aggrieved by the assessment or revision made by the Chief Executive Officer, under Sub-section (6), may prefer an appeal to the Board within thirty days from the date of the receipt of the assessment or revision of return and the Board may, after giving the appellant a reasonable opportunity of being heard, confirm, reverse or modify the assessment or revision or the return and the decision of the Board thereon shall be final.
5. Section 83 deals with constitution of the Tribunal and its functions. To the extent relevant, the provision reads as follows:
83. Constitution of Tribunals, etc.- (1) The State Government shall, by notification in the official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of eaoh of such Tribunals.
(2) Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf.
xxxxxxxxxxxxxxx (5) The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
xxxxxxxxx (7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court.
xxxxxxxxxxxx (9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.
It is the contention of the petitioner that in view of the pervasive jurisdiction of the Tribunal prescribed under Section 83, any dispute or matter relating to wakf, despite any other proceedings under the Act itself is liable to be adjudicated under Section 83. Section 85 deals with the bar of jurisdiction of Civil Courts, which reads as follows:
85. Bar of jurisdiction of Civil Courts.- No suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
Heavy reliance is placed on Pookoya Haji's case (supra). After referring to the entire scheme of the Act, it has been held as follows:
The word any dispute, question or other matters relating to Wakf or Wakf property under Section 85 are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act but also any dispute, question or any other matter relating to any Wakf or Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act itself. On examining the scheme of the Act and various provisions we are of the view that the intention of the Legislature is to resolve all disputes by one machinery and forum provided in the Act itself, that is, the Wakf Tribunal and not by the Civil Courts in the State.
But, it is to be noted that the above Bench decision does not deal with a situation where under the Act itself an order by the Wakf Board has attained finality. Whether such an order which has attained finality by the exercise of the appellate jurisdiction of the Wakf Board is liable to be challenged before the Wakf Tribunal is the moot question.
6. It is also significant to note that despite the pervasive expressions used under Section 83, the legislature has prescribed various situations where the Tribunal could be approached either by way of an appeal or by way of a suit, where the subject matter has engaged the attention of a designated authority/forum. Section 32(3) contemplates institution of suit at the instance of a party affected by any settlement made by the Wakf Board under Section 32(2)(e). The said Section 32(3) reads as follows:
(3) Where the Board has settled any scheme of management under Clause (d) or given any direction under Clause (e) of Sub-section (2), any person interested in the wakf of affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and thee decision of thee Tribunal thereon shall be final.
7. Under Section 54, any person aggrieved by an order passed by the Chief Executive Officer in the matter of removal of encroachment is entitled to institute a suit before the Tribunal. The provision reads as follows:
54(4) Nothing contained in Sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that Sub-section from instituting a suit in a Tribunal to establish that he has right, title of interest in the land, building, space or other property:
Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by thee mutawalli of the wakf or by any other person authorised by him in this behalf.
8. Section 33(4) confers an appellate jurisdiction on the Tribunal against the order passed by the Chief Executive Officer in cases where mutawalli is held to have caused any loss or damages to any Wakf property. The Executive Officer is also entitled to file an appeal under Section 38(7) before the Tribunal in respect of any orders passed against him by the Board. Sections 51(5), 52(4), 67, 69 and 73(3) also have prescribed appellate powers on the Tribunal. The Tribunal also is empowered to entertain applications, in situations contemplated under Section 39(3), 51(2) etc. But the situation under Section 72(7) is totally different. The same deals with appellate jurisdiction conferred on the Wakf Board against an order passed by the Chief Executive Officer, in the matter of assessment or revision of contribution payable to the Board by the Wakf. The jurisdiction thus exercised by the Wakf Board being appellate, against the order of the Chief Executive Officer, the legislature provided that the decision rendered by the Wakf Board in appeal under Section 72(7) shall be final. In other words, there shall not be any further adjudication in respect of a matter which has attained finality under Section 72(7) in the matter of assessment or revision of contribution payable to the Wakf Board, before the Wakf Tribunal under Section 72(7) in the matter of assessment or revision of contribution payable to the Wakf Board, before the Wakf Tribunal under Section 83 of the Act. There is no scope for such a further adjudication in respect of a matter which has thus attained finality under Section 72(7) though there may be a dispute or a question in a matter relating to wakf still available in the situation. Had it been the intention otherwise of the legislature, it would have specifically conferred jurisdiction on the Tribunal, as in other situations referred to above. It is also significant in this context to note that though any muthavalli or person interested in the wakf or any other person aggrieved by an order passed under this Act or Rules made thereunder is entitled to make an application before the Tribunal for the determination of any dispute, question or other matter relating to wakf, even that remedy is not available to such persons in view of the appellate remedy available to such persons against the order passed by the Chief Executive Officer under Section 72(6) and in view of the finality of the decision rendered by the appellate authority, viz., the Wakf Board. Thus the Bench decision in Pookoya Haji's case (supra) is not of any assistance to the petitioner in the facts and circumstances referred to above. The Tribunal has correctly held that an order passed under Section 72(7) of the Act by the Board is not liable to be challenged before the Wakf Tribunal under Section 83. The Civil Revision Petition falls and it is accordingly dismissed.