Kerala High Court
H.M.Shamshad vs The Kerala State Waqf Board on 11 December, 2019
Author: C.S.Dias
Bench: K.Harilal, C.S.Dias
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OP(WAQF) 44 OF 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941
OP (WAQF).No.44 OF 2019
AGAINST THE ORDER/JUDGMENT IN OP 60/2017 DATED 16.10.2019 OF THE WAQF BOARD,
ERNAKULAM
PETITIONER/S:
H.M.SHAMSHAD,AGED 62 YEARS,D/O LATE MUHAMMED HUSSAIN SAIT,
HOUSE NO 64/1080, PULLEPPADY, CHITTOOR ROAD, ERNAKULAM-18.
BY ADVS.
SHRI.ESM.KABEER
SMT.K.M.AMINABEEVI
SMT.NAJLA PAZHAYAKATH
RESPONDENT/S:
1 THE KERALA STATE WAQF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD,
KALOOR, COCHIN-17.
2 MUHAMMED HASHIM ISMAIL SAIT @ IQBAL SAIT,
HOUSE NO 64/1090, PULLEPPADY, CHITTOR,ERNAKULAM-18.
3 MAIMUNA BAI,AGED 73 YEARS
D/O LATE MUHAMMED HUSSAIN ABDUL SATHAR SAIT, 41/1080, ASHM
TRUST BUILDING, CHITTOOR ROAD, PULLPPADDY, ERNAKULAM-18.
4 ABDUL SATHAR MOHAMMED HUSSAIN SAIT,AGED 72 YEARS
S/O LATE MUHAMMED HUSSAIN ABDUL SATHAR SAIT, 41/1080, ASHM
BUILDING, CHITTOOR ROAD, PULLPPADDY, ERNAKULAM-18.
5 MUMTHAS BAI,AGED 68 YEARS
D/O LATE MUHAMMED HUSSAIN ABDUL SATHAR SAIT, HOUSE NO 121,
ASHOKA ROAD, MYSORE-570 001.
R2 BY ADV. SRI.T.M.ABDUL LATHEEF
R3-5 BY ADV. SRI.P.K.MOHAMMED PUZHAKKARA
OTHER PRESENT:
T K SAIDALIKUTTY---STANDING COUNSEL, WAQF BOARD .
THIS OP (WAQF) HAVING COME UP FOR ADMISSION ON 11.12.2019, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
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OP(WAQF) 44 OF 2019
JUDGMENT
C.S.DIAS, J.
This original petition is filed under Article 227 of the Constitution of India to set aside Ext P-5 order passed by the first respondent.
2. The petitioner's father had approached this Court earlier, in two rounds of litigation, which culminated in Exts P-1 judgment and P-3 order.
3. This Court by Ext P-3 order disposed C.R.P (Waqf) No.702 of 2013 as follows:
2. It is for the parties to move the Wakf Board for ventilation of their grievances in regard to the Mutawalliship. This is particularly so in the light of the judgment in O.P No.9325 of 1992 in respect of the same Wakf. The Wakf Board shall decide the question taking note of the intention of the Waqif (dedicator).
The intention is manifest from the Wakf deed itself and the question shall be decided after notice to the descendants of the Waqif.
3. The motion if any made in that regard shall be dealt with by the Wakf Board within a period of six 3 OP(WAQF) 44 OF 2019 months therefrom. The status quo as on today shall continue till such time.
4. The Wakf Board shall decide whether a public notice should be given nor not.
The Civil Revision Petition is disposed of.
4. The grievance of the petitioner in this original petition is that the first respondent has passed Ext P-5 order in violation of Exts P-1 judgment and P-3 order.
5. It is settled law that, if there is non- compliance of a direction contained in a judgment/ order, a fresh writ petition on the same cause of action is not the remedy as held by the Hon'ble Supreme Court in Devaki Nandan Prasad vs State of Bihar and others [AIR 1983 SC 1134], State of Haryana and others vs M.P.Mohla [(2007) 1 SCC 457], Commissioner, Karnataka Housing Board vs. C.Muddaiah [(2007) 7 SCC 689] and Farhd K.Warda vs. Union of India & others [(2009) 2 SCC 442]. If the petitioner has grievance that the first 4 OP(WAQF) 44 OF 2019 respondent has not complied with Ext P-1 judgment or Ext P-3 order, her remedy is to file a contempt of court case under the Contempt of Courts Act, 1971, and not filing a fresh writ petition to direct the first respondent to comply with the earlier directions.
6. Moreover, Ext P-5 order passed by the first respondent is appealable under the Waqf Act 1995, which the petitioner has not availed.
7. The further contention that an interim Muthawalli has been appointed by Ext P-5 order, in violation of Ext P-3 judgment, is also not a ground to file the present original petition. There is an alternative remedy provided under the Waqf Act, 1995. It is also trite law that a writ petition is barred, if there is an alternative remedy, unless exceptional circumstances are made out.
8. In view of the above findings, we hold that the original petition is not maintainable, and is hence 5 OP(WAQF) 44 OF 2019 consequently dismissed, however, reserving the right of the petitioner to seek appropriate reliefs before the competent Court(s)/authority in accordance with law.
Sd/-
K.HARILAL JUDGE Sd/-
C.S.DIAS
SKS/11.12.2019 JUDGE
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OP(WAQF) 44 OF 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN O.P
NO.9325/92 DATED 26.11.1999
EXHIBIT P2 TRUE COPY OF JUDGMENT IN WOS NO.
39/2009 DATED 30.9.2013 OF THE WAQF TRIBUNAL, ERNAKULAM EXHIBIT P3 TRUE COPY OF THE ORDER IN CRP (WAQF) NO 702/2013 DATED 3.4.2017 EXHIBIT P4 TRUE COPY OF THE PETITION IN O.P.NO.60/2017 FILED BY THE 2ND RESPONDENT DATED 25.4.2017 EXHIBIT P5 TRUE COPY OF THE ORDER IN O.P.60/2017 OF THE WAQF BOARD DATED 16.10.2019 EXHIBIT P6 TRUE COPY OF THE ENVELOPE SHOWING DATE AS 28.11.2019