Kerala High Court
Pookkadan Moideenkutty vs Kuttiyali on 14 July, 2009
Author: K.M.Joseph
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21399 of 2008(S)
1. POOKKADAN MOIDEENKUTTY,
... Petitioner
Vs
1. KUTTIYALI, S/O KAITHAKATHU
... Respondent
2. THE KERALA STATE WAKF BOARD,
3. THE GOVERNMENT OF KERALA,
For Petitioner :SRI.S.ABDUL RAZZAK
For Respondent :SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :14/07/2009
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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W.P.(C) No.21399 of 2008-S
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Dated, this the 14th day of July, 2009
J U D G M E N T
K.M.Joseph, J.
Petitioner, the 6th defendant in the suit seeks a writ of certiorari and quash Ext.P3. Ext.P3 is the order of the Wakf Tribunal, Kozhikode holding that the Tribunal has jurisdiction to try the suit filed. A declaration is sought that the dispute as to right to act as Muthawali is not a dispute required by the Wakf Act (hereinafter referred to as the "Act') to be decided by the Wakf Tribunal and the resolution of such dispute sought to be determined in Ext.P1 falls within the realm of Sections 63, 67 and Clauses (d), (g) and (o) of Sub Section (2) of Section 32 of the Act.
2. The Ist respondent (hereinafter referred to as the plaintiff) filed Ext.P1 plaint making the following allegations. Briefly put the plaint schedule property originally belonged to the tharavad of plaintiff. By WPC 21399/2008 -2- document No.137/1902 a wakf was created for the purpose of mosque. As per the document the eldest male member of the family is entitled to manage the wakf. Plaintiff's father was the Muthawali and after his death one K.K.Kunhimoideenkutty had become the Muthawali. The said Kunhimoidheenkutty is the first cousin of plaintiff. He expired five years ago. Plaintiff's brother is a mentally retarded and disabled person. According to the plaintiff he is entitled to act as the Muthawali. He was residing elsewhere and now he has settled down at his native place. It has recently came to the notice of the plaintiff that the Ist defendant committee and some persons in the locality are having dispute regarding the management of the mosque. On enquiry he came to know that the management of the wakf was entrusted to the committee on the basis of false documents and false representation. Nobody has right to transfer the Muthawaliship. Hence a declaration is sought that the plaintiff is the Muthawali of the mosque in question and WPC 21399/2008 -3- wakf properties. He also sought permanent prohibitory injunction against defendants 1 to 3 restraining them from interfering with the management of the wakf properties. A written statement was filed by defendants 1 and 6 contending interalia that the suit is not maintainable. Their case is that during 1978 pursuant to a move to form a committee for the management of the mosque some respected persons in the locality interfered in the matter and decided to call a meeting of mahal members. In the meeting a committee of 25 persons were formed. The plaintiff was a party to that committee. It is further alleged that the committee was registered in the year 1980 as per the Societies Registration Act. Elections were held and the plaintiff had participated in the meeting held on 15.3.1994. Thereafter, he resigned from the committee. Pw1 to Pw6 were examined and Exts.A1 to A9 and Ext.X1 and X2 were marked on the side of the plaintiff. On the side of the defendants Dw1 was examined and Exts.B1 to B11, WPC 21399/2008 -4- X3 to X16 were also marked. It is on the basis of the preliminary objection taken that the Tribunal has no jurisdiction in view of the decision of this Court in Mohammed Kunhi M.A. Vs. Biju and Others (I.L.R. 2008 (2) Ker. 290) that preliminary issue was considered and the Court proceeded to hold that the Tribunal has jurisdiction to the try the suit. This writ petition is directed against the said order of the Tribunal.
3. We heard Sri.S.A.Razzak, learned counsel for the petitioner, T.Krishnanunni, learned senior counsel for the Ist respondent and Sri.M.M.Saidu Muhammed, learned counsel for the 2nd respondent Wakf Board.
4. Learned counsel for the petitioner would contend that the decision of the Tribunal that there is jurisdiction to try the suit is unsustainable. He took us to the plaint allegations. It is pointed out that the case of the Ist respondent is that there is a committee which is managing the affairs of the mosque and there is fraud. The allegations inter alia run as follows: WPC 21399/2008 -5- WPC 21399/2008 -6-
He would then submit that going by the allegations in the plaint essentially if the suit was to be decreed it would involve removal of the Muthawali namely the committee. He would contend that under the Act the Wakf Board has power to remove the Muthawali.
Therefore, according to him, the suit was not maintainable and the remedy if at all of the plaintiff was to approach the Wakf Board. In this regard he relied on Section 32 of the Act in so far as the relevant portion is extracted hereunder:
"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 for 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:
xx xx (2) Without prejudice to the generality of the foregoing power, the functions of the Board WPC 21399/2008 -7- shall be-
xx xx
xx xx
xx xx
(g) to appoint and remove mutawallis in
accordance with the provisions of this Act."
5. He further refer to Section 64 of the Act which deals with the power to remove Muthawali. He relied on Section 64 (1) (k). Section 64 (1) (k) reads as follows:
64 (1) Notwithstanding anything contained in any other law or the deed of Wakf, the Board may remove a mutawalli from his office if such mutawalli-
xx xx
xx xx
(k) misappropriates or fraudulently deals with the property of the Wakf.
6. He would further contend that the Wakf Board is endowed with power under Section 67 of the Act to remove a committee. Section 67 reads as follows: WPC 21399/2008 -8-
67.Supervision and supersession of committee of management.-(1) Whenever the supervision or management of a Wakf is vested in any committee appointed by the Wakf, then, notwithstanding anything contained in this Act, such committee shall continue to function until it is superseded by the Board or until the expiry of its terms as may be specified by the Wakf, whichever is earlier:
Provided that such committee shall function under the direction, control and supervision of the Board and abide by such directions as the board may issue from time to time.
Provided further that if the Board is satisfied that any scheme for the management of a Wakf by a committee is inconsistent with any provision of this Act or of any rule made thereunder or with the directions of the Wakf, it may, at any time, modify the scheme in such manner as may be necessary to bring it in conformity with the directions of the Wakf or of the provisions of this Act and the rules made thereunder.
(2) Notwithstanding anything contained in this Act, and in the deed of the Wakf, the Board may, if it is satisfied, for reasons to be recorded in writing, that a committee, referred to in sub-section (1) is not functioning properly and satisfactorily, or that the Wakf is being mismanaged and that in the WPC 21399/2008 -9- interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the Wakif, in so far as it relates to the constitution of the committee, shall cease to have any force:
(4). Any order made by the Board under sub-
section (2) shall be final.
Provided that any person aggrieved by the order made under sub-section (2) may, within sixty days from the date of the order, appeal to the Tribunal:
Provided further that the Tribunal shall have no power to suspend the operation of the order made by the Board pending such appeal.
7. Lastly he would refer to Section 83 of the Act. Section 83 deals with constitution of Tribunals. The relevant portion of the Section reads as under:
83.Constitution of Tribunals etc.- (1) The State Government shall, by notification in the Official Gazette, constitute as many as as 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 each of such Tribunals.WPC 21399/2008 -10-
(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.
8. After referring to sub-sections 1 and 2 of Section 83 the learned counsel would point out that unless there is an order by the Wakf Board it is not open to a party to approach the Tribunal. The power of the Tribunal is limited to examine a complaint which arises from any order passed by the Wakf Board. There is no such order in this case as the plaintiff has not cared to approach the Wakf Board before instituting the suit before the Tribunal. The Tribunal was therefore without jurisdiction. He relied on the following judgments-- Pookoya Haji v. Cheriyakoya {2003 (3) KLT 32}, M.P.Wakf Board v. Subhan Shah (Dead) By LRs. and Others {2006 (10) SCC 696}, Madeena Masjid v. Kerala WPC 21399/2008 -11- Jama Ath Islami Hind {2007 (3) KLT 800}, Kunhimohammed Haji v. Darul Huda Islamic Academy {2008 (1) KLT 957}, Muhammed Kunju v. Biju {2008 (2) KLT833} and A.M.Ali Akbar and another v. Keelakarai South Street Jamath Masjid Paripalana Committee and Others {AIR 2001 Mad.431}.
9. Before we refer to the decisions we would examine the provisions as they stand and consider whether on the allegations in the plaint the suit is maintainable before the Tribunal. The prayers sought as already noted are for a declaration that the plaintiff is the Muthawali of the mosque and the wakf properties. He has also sought for a permanent prohibitory injunction against defendants 1 to 3 from managing the wakf properties.
10. Section 32 of the Act deals with the powers and functions of the Board. It confers power of general superintendence and it is the duty of the Board to ensure that the Wakf under its superintendence are WPC 21399/2008 -12- properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such Wakf is created.
11. The question of jurisdiction has been essentially decided with reference to the allegations in the plaint as also the reliefs sought in the plaint. According to the learned senior counsel for the plaintiff his case is that he does not admit that the committee as such is the Muthawali and on the contrary it is his case that the plaintiff is entitled to be the Muthawali and that the said right is not assigned. He would also submit that if it is found that the committee is actually acting as the Muthawali, it may have its consequences.
12. Undoubtedly, Sec.32 confers power of superintendence on the Board. It provides for various functions which are specifically enumerated. Indeed the power under sub-section 1 of Sec.32 is general power of superintendence. Actually it is the duty of the Board to effectively supervise the functioning of the wakfs so as to WPC 21399/2008 -13- see that the object of the wakf is achieved. In our view, however, the writ petitioner is not correct in contending that the reliefs sought for in Ext.P1 plaint is one which is covered by Sec.32 (2) (g). Section 32 (2) (g) empowers appointment and removal of Muthawali. The plaintiff has no case that the defendant committee is one appointed by the Board. Further, the removal of Muthawali referred in clause 'g' is to be done in accordance with the provisions of the Act.
13. The exact provision which deals with removal of Muthawali is Section 64 which we have already referred. Sec.64 provides power to the Board to remove Muthawali. Going by the allegation in the plaint it is difficult for us to accept the argument of the petitioner that it attracts Sec.64 (1) (k). It is the case of the plaintiff that he is the person entitled to act as Muthawali. It would appear to be his further case that the defendant committee is essentially inter-middling in the matter and they have no right to act as Muthawali. WPC 21399/2008 -14- No doubt, there is reference to the defendants having created certain documents in this regard. In fact, the learned counsel for the Wakf Board Sri.M.M.Saidu Muhammed would contend that Section 64 (1) (k) may not be attracted. In the nature of the allegations in the plaint and the reliefs sought for we are of the opinion that the argument that the Tribunal has no jurisdiction for the reason that the Board has the power to remove a Muthawali and the power can be exercised under Section 64 (1) (k) is to be rejected.
14. The further question would be whether Section 67 is attracted. Section 67 (1) contemplates appointment of a committee by the wakif for supervising or managing the wakf. The power of the committee to continue in office is till the expiry of its term or it is superseded by the Board. It is certainly not the case of the plaintiff that any committee has been appointed by the wakif. Sub section 2 also refers to such committee as is referred in sub section 1. It speaks of superseding the WPC 21399/2008 -15- said committee. Therefore, the condition precedent for exercising the power under Section 67 (1) and (2) is that the wakif must appoint a committee. It is in fact nobody's case that the wakif has appointed any such committee. Therefore, clearly the writ petitioner is totally misplaced in contending that the Board had the power to remove the defendant committee under Section 67 and therefore the suit was not maintainable under Section 83 of the Act.
15. As far as 83 (1) is concerned the Tribunal constituted by State Government is to determine any dispute, question or other matter relating to a wakf or wakf property under the Act. The Tribunal is to be deemed as a Civil Court and is to have the same powers as is exercised by the Civil Court under the Code of Civil Procedure 1908 for trying a suit or executing a decree or order. (See sub section 5 of Section 83).
16. No doubt, it shall follow such procedure as is prescribed notwithstanding the CPC. Sub section 7 WPC 21399/2008 -16- makes the decision of the Tribunal final and it is to have the force of a decree made by a Civil Court. No appeal lies against any decision or order whether interim order or otherwise. But, the High Court has power of revision. Section 85 bars any suit or other legal proceedings in any Civil Court in respect of any dispute, question or other matter which required by or under the Act to be determined by the Tribunal. Learned senior counsel appearing on behalf of the plaintiff would point out that as per the rules any mutawali, 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 the Act or in the rules or where no such time has been specified within thirty days from the date of the order. Sub-sec.2 no doubt appears to deal with a situation where an order is passed under the Act to apply thereunder and seek the relief. It speaks about three persons. They are as follows:
WPC 21399/2008 -17-
1. Any Muthawali. 2. Person interested in a Wakf. Person interested in wakf has been defined as in Section 3 (k) as follows:
Sec.3 (k). "person interested in a Wakf' means any person who is entitled to receive any pecuniary or other benefits from the Wakf and includes-
(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf;
(ii) the Wakif and any descendant of the Wakf and the mutawalli;
and thirdly any other person aggrieved by an order under the Act or rules made thereunder.
17. Having regard to the language of Section 83 read with Section 85 we are of the view that the contention of the learned counsel for the writ petitioner that there is no power vested with the Tribunal unless an order is passed by the Wakf Board has no merit. We are of the view that not only can the Tribunal entertain an WPC 21399/2008 -18- application at the instance of persons who are enumerated in Sub-sec.2 of Section 83 but it does have power to determine any dispute, question or other matter relating to wakf or wakf property. For instance , if there is an attempted trespass by a 3rd party can it be said that a suit for injunction by the Muthawali is barred? The Muthawali will be in a position where he can neither file a suit in the Civil Court nor he can approach the Tribunal though the learned counsel for the petitioner point out that even then he can approach the Board. We find it difficult to accept the said contention. Parliament intended to vest the power which would have been exercised by the Civil Court with a specially constituted Tribunal. The decision of the Tribunal is a decree. It is not appealable as the judgment of a Civil Court. There is only limited remedy available by way of filing revision. Parliament intended that one Tribunal be constituted to exclusively deal with matters arising out of wakf or wakf properties. If such is the intention we need not adopt a WPC 21399/2008 -19- restricted interpretation of the provisions which will substantially result in the injured person being left without any remedy. Certainly there will be matters which will require adjudication by the Civil Court and instead of the Civil Court by the Tribunal which is deemed to be a Civil Court and the decision of the said Tribunal is treated as decree. Certainly it is not open to the Wakf Board to grant a declaration that the plaintiff is the Muthawali. Therefore, we are of the view that the case of the plaintiff cannot be rejected on the ground that the suit will not lie before the Tribunal. This must not be taken as an expression of our view on the merits of the matter.
18. The decisions in our view do not in any manner detract the view which we have taken. In Pookoya Haji v. Cheriyakoya {2003 (3) KLT 32} a Division Bench of this Court dealt with a batch of cases where the question was regarding jurisdiction of the Tribunal. Therein the Court, interalia held as follows: WPC 21399/2008 -20-
" The words any dispute, question or other matters relating to Wakf of Wakf property under S.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."
Incidentally, we notice that in para 15 the Court has held as follows:
"We may therefore dispose of all the cases in the light of the above mentioned principles laid down by us. W.A.No.2273 of 1999 arises out of O.P.No.26419 of 1998. Writ Petition was filed by the first defendant in O.S.No.1 of 1998 of the Wakf Tribunal (District Judge, Kavaratti) declaring that the Wakf Tribunal has no jurisdiction to entertain the suit and for a direction to pass orders on Ext.P4 preliminary objection and whether it has got jurisdiction to resolve the dispute. Learned single Judge of this Court dismissed the Original petition holding that the Tribunal has got jurisdiction to resolve the dispute. In that suit plaintiff has sought for a declaration that members of WPC 21399/2008 -21- Pattakkal family alone are entitled to hold office Muthavalli under the custom and tradition and a declaration that first plaintiff was duly chosen Muthavalli as the next. We are of the view dispute falls squarely within the jurisdiction of the Wakf Tribunal and consequently we find no reason to interfere with the judgment of the learned single judge. The Writ Appeal would stand dismissed."
19. Learned counsel for the petitioner placed reliance on the decision of the Apex Court in M.P.Wakf Board v. Subhan Shah (Dead) By LRs. and Others {2006 (10) SCC 696} wherein on the application of a person Dargah in question was registered by the Board which overruled the objections of the person in possession and managing the Dargah. It also appointed a committee. The suit filed was considered before the Tribunal. The Tribunal passed an interim order framing a scheme for managing the affairs of the Dargah. Therein the Court took the view that the Wakf Act is a self-contained code and Section 32 (2) (d) provides for power to settle scheme for management of a wakf by the Board. The WPC 21399/2008 -22- Court held as follows:
"The Tribunal had been constituted for the purposes mentioned in Section 83 of the 1995 Act. It is an adjudicatory body. Its decision is final and binding but then it could not usurp the jurisdiction of the Board. Our attention has not been drawn to any provision which empowers the Tribunal to frame a scheme. In absence of any power vested in the Tribunal, the Tribunal ought to have left the said function to the Board which is statutorily empowered therefor. Where a statute creates different authorities to exercise their respective functions thereunder, each of such authority must exercise the functions within the four corners of the statute."
20. We have already noted that the contention of the petitioner about the Board having the power to remove the Muthawalli may not have any application to the facts of the case and for the purpose of deciding the question which falls for our consideration.
21. In Madeena Masjid v. Kerala Jama Ath Islami Hind {2007 (3) KLT 800} the question which arose was whether a suit or other legal proceedings could be maintained on behalf of an unregistered Wakf for enforcement of any of its rights before the Wakf WPC 21399/2008 -23- Tribunal. The Court interalia held as follows:
" As far as the jurisdiction of the Tribunal is concerned, the law is well settled by a Bench decision of this Court in Pookoya Haji v. Cheriyakoya (2003 (3) KLT 32) that "The words any dispute, question or other matters relating to Wakf or Wakf property under S.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 it the State."
22. In Kunhimohammed Haji v. Darul Huda Islamic Academy {2008 (1) KLT 957} the Court took the view that the functions of registration of property as wakf property is that of the Board and it has a duty to decide the question as to whether the property is wakf property or not. It is for the Board to decide the question in the WPC 21399/2008 -24- first instance and the Tribunal can be called upon to adjudicate on the question after the decision is taken by the Board on the disputed question it was held. The Court also took the view that the expression 'any dispute, question or other matter relating to the Wakf appearing under S.83 (2) has to be given a restricted meaning in its application as far as the disputes or questions under Ss. 6, 7 and S.40. Therefore, the Court took the view that the precondition for invoking the jurisdiction of the Tribunal under Sec.6 or Sec.7 is the presence of property as wakf property in the list of Wakfs published by the Wakf Board under Section 5. We do not see how the said decision can advance the case of the petitioner in the facts of this case.
23. In Muhammed Kunju v. Biju {2008 (2) KLT 833} an interim order was passed by the Wakf Tribunal in a suit filed before it where the reliefs were sought against mismanagement in relation to the conduct of election, administration of Wakf fund or other WPC 21399/2008 -25- misdeeds. That was a case where it was alleged in the suit interalia that the President and certain other office bearers of the Juma-ath constituted an election committee with the 4th respondent as its convener and published elections conditions for conducting election of the Juma-ath altering the basic structure of the committee. The proposed amendment of the original byelaw was neither placed before the general body nor approved by it. It was further alleged in the suit that the constitution of the election committee and appointment of 4th respondent as the convener was illegal and that they have no right to conduct the election in violation of the byelaw. In this context the Court held as follows:
"The power of administration, management and control of a Wakf shall vest in the Wakf Board and that a duty is cast on the Board to exercise its powers, if the Board finds that the committee is mismanaging the affairs of the Wakf and if necessary, to supersede such committees. The Wakf Tribunal is constituted for the purpose mentioned in S.83 of the Act. It is an adjudicatory body. The power to WPC 21399/2008 -26- initiate action against a committee for mismanagement is a power specifically assigned to the Wakf Board under S.67 read with S.32 of the Act. S.32 of the Act provides for powers and functions of the Board. Where a statute creates different authorities to exercise their respective functions thereunder, each of such authority must exercise the functions within the four corners of the statute. It is true that S.83 of the Act is 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 and that on examining the scheme of the Act and various provisions, it is clear that the intention of the Legislature is to resolve all disputes by one machinery and forum provided in the act itself, that is,t he Wakf Tribunal and not by the civil courts in the State. The original power to manage, administer and control the affairs of each and every Wakf, going by the statute is unambiguously conferred on the Wakf Board. The Wakf Board alone shall have the power to correct maladministration and mismanagement and it is empowered to issue suitable directions including the power of supersession. Under the provisions, the Wakf Board is also empowered to issue appropriate directions for the effective and smooth functioning of the Wakf. The provisions, namely, Ss.32 and 67 of the Act deal with the said specific power. S.70 of the WPC 21399/2008 -27- Act empowers the Wakf Board to initiate enquiry regarding the administration of the Wakf. Under the said section, if there is complaint regarding the administration of the Wakf, the Wakf Board can initiate enquiry and on being satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action as it deems fit. Whether such mismanagement relates to the conduct of election, administration of the Wakf fund, the conduct of members and office bearers not befitting to their position and other hosts of misdeeds, it is the function and duty of the Wakf Board at first instance to set right things and issue appropriate orders for the proper and benevolent administration of the Wakf. If any such circumstance arises, any person interested in the wakf can approach the Wakf Board for appropriate direction. S.67 (1) of the Act also unambiguously point out that the committee shall function under the direction, control and supervision of the Wakf Board and abide by such directions as the Board may issue from time to time. Ss.67 (2) and 70 of the Act empower the Wakf Board to take action for malfunctioning and mismanagement of the affairs of the Wakf. The same Act and the same provision, namely, S.67(4) specifically confers jurisdiction on the Wakf Tribunal to sit in appeal and decide the legality or otherwise of the orders passed by the Wakf Board. "
In the light of the above discussion there is no WPC 21399/2008 -28- merit in the writ petition and it is dismissed.
(K.M.JOSEPH) JUDGE.
(M.L.JOSEPH FRANCIS) JUDGE.
MS