Kerala High Court
Revision vs By Advs.Sri.H.Hamza Rowther on 15 February, 2012
Bench: Thottathil B.Radhakrishnan, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2012/26TH MAGHA 1933
CRP.No. 520 of 2011 ( )
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OS.NO.8/2010 of WAKF TRIBUNAL, KOLLAM
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REVISION PETITIONER(S)/PLAINTIFF
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K.K.ABDUL LATHIF,
S/O.KOCHU MUHAMMED,AGED 58 YEARS, HAZINA MANZIL,
KODAMTHURUTHU MURI, KODAMTHURUTHU VILLAGE,
KUTHIYATHODU P.O., ALAPPUZHA DISTRICT.
BY ADVS.SRI.H.HAMZA ROWTHER
SRI.V.K.PEER MOHAMED KHAN
RESPONDENT(S)/ DEFENADANTS
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1. KUTHIYATHODU JUMA-ATH MAHAL,
REPRESENTED BY ITS PRESIDENT C.M.KUNJIKOYA,
S/O.MUHAMMADALI, AGED 50 YEARS, CHALAKKAL HOUSE,
KUTHIYATHODU P.O, CHERTHALA.PIN-688 533
2. KUTHIYATHODU JUMA-ATH MAHAL,
REPRESENTED BY ITS SECRETARY P.K.ABDUL JALEEL,
S/O.V.K.KOCHUMUHAMMED,AGED ABOUT 45 YEARS,
JASEEF MANZIL,KUTHIYATHODU P.O, CHERTHALA.PIN-688 533
3. KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
V.I.P ROAD,KALOOR,KOCHI-682 017
R1 & R2 BY ADV.SRI.ESM.KABEER
R3 BY ADV.SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 15-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
THOTTATHIL B. RADHAKRISHNAN
&
C.T. RAVIKUMAR, JJ.
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C.R.P. No. 520 OF 2011
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Dated this the 15th day of February, 2012
ORDER
Thottathil B. Radhakrishnan, J.
The plaintiff in a suit filed before the Wakf Tribunal, Kollam challenges the dismissal of the suit holding that it is not maintainable.
2. The reasons stated by the Tribunal for the said decision is that the matter, at best, would have to go only to the Wakf Board and Wakf Tribunal could only sit in appeal on the decision of the Wakf Board. The different provisions empowering the Wakf Board is dealt with by the Tribunal in the impugned order and the suit has been found to be not maintainable on the ground that the Wakf Board has got the power to grant the reliefs sought for.
C.R.P.520/11 2
3. Following is relief No.A sought for by the plaintiff in the plaint.
"To declare that plaintiff was the legally elected president for the period 2006-2008 of the defendant and that the continuance of the then existing committee and further inclusion of member to the Managing Committee and the decisions allegedly taken to bring out amendments to the existing constitutions are arbitrary, illegal and against the will of the members and to further declare that all the dealings made by persons claiming to be office bearers of the defendant are without sanction and will not bind the defendant."
4. Apart from the above, direction is also sought for, to conduct election as per the Constitution.
5. The aforequoted relief No.A in the plaint seeks a declaration that the plaintiff was the legally elected President for the period 2006-2008. Declaration sought is of "having been elected as the President of a Wakf." Also sought for in relief No.A is that it be declared that the decisions allegedly taken to bring out amendments to the existing Constitution are arbitrary, illegal and against the will of the members. That relief is founded on the plea that after excluding the plaintiff, there were C.R.P.520/11 3 unauthorised inclusions of members to the Managing Committee. The plaintiff also sought for a declaration that all the dealings made by persons claiming to be office bearers of the defendant are without sanction and will not bind the defendant Wakf.
6. With the aforesaid, by now, it is laid down by the Hon'ble Supreme Court in Board of Wakf v. Anis Fatma Begum (2010 (4) KLT 765 (SC)) that the scope of section 83 is very wide in connotation and any dispute, question or other matters whatsoever and in whatever manner which arises, relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. Their Lordships also stated specifically that it is not necessary for a party to first invoke the authority of the Wakf Board, get a decision, and then to move the Tribunal as if it is an appellate remedy. These principles are well stated in paragraphs 14 to 16 of the aforesaid judgment which are extracted hereunder:
"14.Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are in our opinion, words of very wide connotation. Any dispute, C.R.P.520/11 4 question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf has been defined in S.3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in S.3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.
16.We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Ss.83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt S.83 (2) refers to the orders passed under the Act, but, in our opinion, Ss.83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf property, as the plain language of Ss.83(1) and 84 indicates."
7. There are certain powers; like framing scheme etc. which fall within the exclusive domain of the Wakf Board. In matters relating the management of the Wakf and Wakf property, C.R.P.520/11 5 questions will arise as to the very constitution of the committee and the eligibility to continue in office, regarding the elected committee or its office bearers. In the light of the aforenoted pronouncement by the Hon'ble Apex Court, it cannot be held that the reliefs sought for by the plaintiff do not fall well within the scope of ambit of section 83 of the Wakf Act.
8. For the aforesaid reasons, impugned order is set aside and it is held that O.S.No.8/10 of the Wakf Tribunal, Kollam is maintainable.
In the result, this revision is allowed to the extent stated above and the matter is remitted directing the court below to proceed with the suit, in accordance with law, treating it as maintainable. No costs.
(THOTTATHIL B. RADHAKRISHNAN) JUDGE (C.T. RAVIKUMAR) JUDGE spc/15.2.
C.R.P.520/11 6