Kerala High Court
N.V Ali Akbar vs Abdul Azeez Mannisseri on 8 July, 2014
Bench: Thottathil B.Radhakrishnan, P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY,THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936
OP (WAKF).NO. 23 OF 2014 (R)
------------------------------------------
PETITIONERS:
--------------------
1. N.V ALI AKBAR,
S/O.MAMMADUNNI, AGED 80 YEARS,
PALAKKAKUNDU HOUSE, ERNAD TALUK,
KARAKUNNU AMSOM, AMAYUR DESOM P.O-676 123.
2. KURUGADAN CHEKKUNNI, S/O.MOIDEENKUTTY,AGED 76 YEARS,
POOLAKOTTIL HOUSE, ERNAD TALUK,
KARAKUNNU AMSOM, AMAYUR DESOM P.O-676 123.
BY ADVS.SRI.K.R.AVINASH (KUNNATH),
SRI.ABDUL RAOOF .P.
RESPONDENTS:
-----------------------
1. ABDUL AZEEZ MANNISSERI,
S/O.ALI AKBAR MANNISSERI,AGED 56 YEARS,
MANNISSERI HOUSE,
ERNAD TALUK, KARAKUNNU AMSOM,
AMAYUR DESOM P.O-676 123.
2. M.ABDUL RAHIMAN, S/O.MOIDEEN, AGED 72 YEARS,
MANNISSERI HOUSE, ERNAD TALUK,
KARAKUNNU AMSOM, AMAYUR DESOM P.O-676 123.
3. HASSAN KOTTAKKODAN, S/O.MOHAMED ALI, AGED 64 YEARS,
KOTTAKODAN, ERNAD TALUK,
KARAKUNNU AMSOM, AMAYUR DESOM P.O- 676 123.
4. MOIDEEN,S/O.ABDUL RAHIMAN,AGED 38 YEARS,
RESIDING AT PEVURUPARAMB HOUSE,
ERNAD TALUK, KARAKUNNU AMSOM,
AMAYUR DESOM P.O- 676 123.
Prv.
O.P. (WAKAF). NO.23/2014 - R:
5. ABDUL KARREEM.M, S/O.CHEKUTTY, AGED 62 YEARS,
POOVATHIKKAL HOUSE, ERNAD TALUK,
KARAKUNNU AMSOM, AMAYUR DESOM P.O- 676 123.
6. N.V.MOIDEEN, S/O.CHEKUNHI, AGED 54 YEARS,
NOTTAN VEEDAN HOUSE, VELLARAMKALLU,
ERNAD TALUK, KARAKUNNU AMSOM, AMAYUR DESOM P.O-676 123.
7. THE KERALA STATE WAKF BOARD,
KALOOR, ERNAKULAM-686 673.
R1 TO R3,R5 & R6 BY ADVS. SRI.LAL K.JOSEPH,
SRI.A.A.ZIYAD RAHMAN
SRI.V.S.SHIRAZ BAVA,
R7 BY SRI.K.SHIBILI NAHA, S.C,
SRI. K.A. JALEEL, ADDL. ADVOCATE GENERAL.
THIS O. P (WAKF) HAVING BEEN FINALLY HEARD ON
03-07-2014, THE COURT ON 08-07-2014 DELIVERED
THE FOLLOWING:
Prv.
O.P. (WAKAF). NO.23/2014 - R:
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: COPY OF THE REGISTERED DOCUMENT NO.489/1958.
EXT.P2: COPY OF THE LEGIBLE TYPE WRITTEN COPY OF THE REGISTERED.
DOCUMENT.
EXT.P3: COPY OF THE AGREEMENT.
RESPONDENTS' EXHIBITS:
EXT.R1.(A): TRUE COPY OF THE RELEASE DEED DTD. 12/10/1989, EXECUTED BY
THE 2ND RESPONDENT.
EXT.R1.(B): TRUE COPY OF THE WAKF DEED DTD. 16/08/1989 EXECUTED BY ONE
ENUDDEEN @ IMBICHI.
EXT.R1.(C): TRUE COPY OF THE NOTICE DTD. 15/03/2006.
EXT.R1.(D): TRUE COPY OF THE REPLY NOTICE DTD. 20/04/2006.
EXT.R1.(E): TRUE COPY OF THE COMPLAINT DTD. 21/07/2013.
//TRUE COPY//
P.S. TO JUDGE.
Prv.
"CR"
Thottathil B.Radhakrishnan
&
P.B.Suresh Kumar, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = OP(WT).No.23 of 2014 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of July, 2014 Judgment Thottathil B.Radhakrishnan, J .
1.Article 227 of the Constitution of India is invoked on the premise that petitioners are unable to seek redressal of grievances from the Wakf Tribunal constituted under section 83 of the Wakf Act, 1995, in view of the amendment to that section as per the Wakf (Amendment) Act, 2013. They plead disability to institute proceedings in the absence of a Tribunal with the composition in terms of the amended provisions. They are also precluded from suing in the civil courts owing to the bar of jurisdiction as per section 85 of the Act, it is contended.
2.In view of the importance of the issue in the realm of judicial administration and deliverance of justice, notice was issued to the Advocate OPWT23/14 -: 2 :- General. Heard learned counsel for the petitioners, the learned Additional Advocate General and the learned standing counsel for the Wakf Board.
3.Section 85 of the principal Act provided that 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 or Wakf property or other matter which is required by or under the Act to be determined by the Tribunal. By the effect of sections 4 and 45 of the amending Act, such bar to jurisdiction was extended to preclude revenue courts and other authorities as well.
4.As per Section 44 of the amending Act, sub- sections 1 and 4 of section 83 of the principal Act have been substituted, also resulting in the introduction of sub-section 4A. Thereby, apart from enlarging the subject matter jurisdiction of the Tribunal, its composition has been enlarged from that of a single-member tribunal to a three- member one; one member to be from the State OPWT23/14 -: 3 :- Judicial Service, who shall be the Chairman; another from the State Civil Services and another from persons having knowledge of Muslim law and jurisprudence. The three sources are more particularly described in the Act as amended.
5.As per sub-section 4A introduced through the aforenoted substitution as per the amending Act, the terms and conditions of appointment, including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members, shall be such as may be prescribed. Since Section 83 does not fall within Chapter III of the Act, such prescription can be only by Rules made by the State Government, in view of section 3(l) read with section 109 (1) & (2)(xxv) of the Act. It is the trite requirement of law that any rule so made shall be published in the Official Gazette. Section 111 prescribes that every rule made under section 109, among other things, shall be laid, as soon as may be after it is made, before the State Legislature. Making of such rules following due procedure is, therefore, sine qua non for the OPWT23/14 -: 4 :- Tribunal to act in terms of the amendments brought in as per the amending Act as regards its composition. This is so, though the rule of laying noted here does not prescribe the prior approval of the State Legislature for the rules being effectuated.
6.Going by the constitution of the Tribunal in terms of sub-section 1 of section 83, its objects, functions and the basket of jurisdiction, Tribunal ought to be a full-time one. The concept of ex officio members in sub- section 4A of section 83 could never be understood to mean the discharge of the functions of any member of the Tribunal as part-time functions, in addition to the other regular official duties of any person appointed as a member of the Tribunal. When jurisdictional civil courts are precluded and citizens with grievances are required to seek remedies from tribunals, such tribunals are required to extend qualitative and quantitative output of justice deliverance as would be comparable with what has been deprived from the litigants by such OPWT23/14 -: 5 :- tribunalisation as part of the justice delivery system. This view is inexcusable in the context of the jurisdiction of the Tribunal in terms of sub-section 1 of section 83 of the Act and the extent of exclusion of jurisdiction of the civil court, revenue court and any other authority in terms of section 85 of the Act. So much so, any attempt to make the Tribunal a part-time one for any or all of the members, would be anathema to the concept of access to justice and equality before law and equal protection of the laws in terms of the Constitution of India. It will result in erosion of the constitutional values and goals which are indubitably blended in the cream of the Constitution of India which surge smeared in its entirety, and particularly, in the Preamble and Parts III & IV. Here, it would not be inapposite to recall a prime constitutional concern reflected in Article 50, that the State shall take steps to separate the judiciary from the executive in the public services of the State. Therefore, if the nomination of a member from the State Civil Services is to be made on a part-time or ad hoc, or ex officio basis; that OPWT23/14 -: 6 :- would demean the avowed goal of insulating judicial function from executing function and would infringe independence of judiciary which is a basic feature of the Constitution. So much so, in our considered view, any attempt to make a part-time, ad hoc, or ex officio authorisation to a full member of the State Civil Services, while appointing that person as a member of the Tribunal would be to do something not conceived for, but would be in jurisdictional and jurisprudential contradiction to the statute in hand in the context of the Constitution of India.
7.Now, we proceed to examine a very critical issue. Under the unamended Act, the Tribunal was required to consist of one person, who is a member of the State Judicial Service, more particularly described in that provision. The amending Act modifies that composition of the Tribunal by including two members from two different sources; one from the State Civil Services and the other from a different source, belonging neither to the Judicial Service or the Civil Services. Obviously therefore, when such a OPWT23/14 -: 7 :- composition comes into being and operational, that Tribunal, as an establishment, cannot function without necessary infrastructure as required for an institution of exclusive existence. This is because all the three members, including the Chairman, who is to be the member from the State Judicial Service, cannot sit in tandem and exercise any function other than those functions which are enumerated under the Act. That would be a total change of the scenario from what is now being operated as the Wakf Tribunal under the Act before amendment. Therefore, the inexcusable practical minimum is that there should be sufficient infrastructure facility for the Tribunal to function as an independent unit, without the judiciary taking upon the infrastructure burden, and, the establishment of the wherewithal for the running of that Tribunal as an independent establishment. Contextually, we think it is necessary to indicate here and now itself that it is constitutionally impermissible to have a member of the Judicial Service in the Tribunal as per the amended provisions except by way of deputation. It could never be as if that OPWT23/14 -: 8 :- officer could function in the dual role of being a member and chairman of the Tribunal and also contemporaneously discharging duties and functions as a District, Sessions or Civil Judge Class I, at par with what such an officer would have been doing under the amended provisions. This means that, insofar as the litigants who need to access the Tribunal are concerned, they cannot be forced to do so without establishment of appropriate infrastructure in terms of building, office infrastructure, officials to man the establishment etc. The staff pattern of such support staff for the Tribunal has also to be determined and laid by the Government to make such a Tribunal functional. That liability cannot be one of the existing judiciary which is a separate intact system as conceived by Article 50 of the Constitution, as noted above.
8.We now proceed to notice as to what is happening as of now, as regards the Wakf Tribunals. In 2012, a question arose as to whether an officer who is put in charge of a Tribunal by the High Court or who is covered by general transfer OPWT23/14 -: 9 :- orders issued by the High Court and posted to man the Tribunal has to be further energised by a notification of the State Government to act, function and discharge the functions of the Tribunal. The situation was one of stalemate owing to the delay in issuing government notifications. The constitutional and statutory situation therefore became focal issues and it was held that government notifications were not necessary in such situations. It was therefore declared by this Court that following general transfers and other transfer orders of judicial officers of the subordinate judiciary from time to time, the person manning any Wakf Tribunal, on transfer, will hand over charge as may be ordered by the High Court in its proceedings on the administrative side and such handing over charge is sufficient to clothe the person put in charge of the Tribunal to discharge all functions and powers of the Tribunal in terms of the provisions of the Act. See - Abdulla Shahul Hameed v. State of Kerala [2012 (3) KLT 324].
9.The amending Act has changed only the composition OPWT23/14 -: 10 :- of the Tribunal as provided in sub-section 4 of section 83 of the parent Act. The amendment made to sub-section 1 of section 83 only enlarges the subject matter jurisdiction. For all other purposes, it continues to be what it was before the amendment. Though the amending Act has enlarged the subject matter jurisdiction of the Tribunal and has modified the composition of the Tribunal by the amendment to sub-section 4 of section 83, there is no transitory or other provision in the amending Act which deals with matters pending before the Tribunal as it stands under the parent Act, until the composition of the Tribunal gets modified, through statutory notifications, in terms of the amended provisions. This is clear legislative material to infer that the constitution the Tribunal by notifications issued under the parent Act shall continue to be in vigour notwithstanding the amendments, and, modifications if any to the constitution of the Tribunal in terms of the amendments to the parent Act by the amending Act, would become operational only if and when such compositions are notified in conformity with the OPWT23/14 -: 11 :- amended section 83(4). As already noted, this can be done only after the rules are prescribed and made in accordance with law, by the State Government and infrastructure is provided, without tinkering with the existing judicial establishment, and, to the satisfaction of the High Court, since any modification of the constitution in terms of the amended section 83 (4) would call for the deputation of a judicial officer from the State Judicial Service. Therefore, any Tribunal already notified under the provisions of the parent Act would continue to stand with authority, and, with enlarged subject matter jurisdiction in terms of the amendment to sub-section 1 of Section 83, however that, the composition of the Tribunal cannot be modified except by a notification in terms of the amended sub-section 4 of that section.
10.No citizen has a right to ask for a particular composition of Tribunal; the law being well settled that one has only a vested right of action but no vested right to a forum; and, even if in a particular case there is a right to a OPWT23/14 -: 12 :- vested forum, that does not extend to any particular composition of the forum. See - New India Insurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840], Ittyavira Mathai v. Varkey Varkey [AIR 1964 SC 907] and Mary v.Pappu [2001 (1) KLT 12].
11.It appears to be appropriate that we indicate now that we can foresee some practical problems that may arise due to the lack of any provision following the amendment to section 83(4), to take care of actions taken by the Tribunal in the absence or vacancy of members. It is a normal legislative tool to clothe situations of vacancy of members by a protective legislative covenant. As part of judiciary, we would abide by our limitations and would not venture to lay down or issue any direction in that regard since that is a matter in the legislative domain.
12.The conclusion of the aforesaid discussion is that all Tribunals exercising functions under the Act before its amendment will continue to do so, taking it that their subject matter jurisdiction OPWT23/14 -: 13 :- has been enlarged in terms of what is provided as per the amended sub-section 1 section 83 of the Act. They have to necessarily follow the declaration and directions contained in Abdulla Shahul Hameed's case (supra) for all intents and purposes. They shall not wait for any re- composition of the Tribunal in terms of sub- section 4 of section 83 of the Act, as amended, unless they are notified by the High Court to do so, on fulfilment of the conditions precedent for operating any composition of Tribunal in terms of the amended provisions, as explained above and declared hereby.
13.Going by their own showing, the petitioners have come to this Court only on the plea as to non- availability of Tribunal in view of the amendment to the Act. That having been found against, they would be free to seek remedy from the Tribunal in accordance with law and subject to their entitlement to any such relief.
14.In the result, this original petition is closed preserving the right of the petitioners to move OPWT23/14 -: 14 :- the appropriate Tribunal for such reliefs, if any, as would be available to them in accordance with law, as may be decided by that authority. The Registry will note the contents of this judgment and issue appropriate instructions to the judicial officers manning the Tribunals constituted under the Act.
Sd/-
Thottathil B. Radhakrishnan Judge Sd/-
P.B.Suresh Kumar Judge Sha/
-true copy-
PS to Judge