Kerala High Court
Ernakulam vs By Adv.Sri.G.Sreekumar (Chelur)
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939
WP(C).NO. 41229 OF 2017
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AGAINST THE ORDER/JUDGMENT IN OP 111/2015 OF WAKF TRIBUNAL,
ERNAKULAM
PETITIONER
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KANNAMPARAMBU JUMATH PALLI PARIPALANA COMMITTEE
A REGISTERED BODY, REP. BY ITS SECRETARY, SAKEER HUSSAIN,
AGED 41, S/O.KUNJAHAMMED, KALLAYI P.O., KOZHIKODE-673003.
BY ADV.SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS:
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1. THE STATE OF KERALA
REP. BY THE SECRETARY TO THE GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT
SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. THE CORPORATION OF CALICUT
REP. BY ITS SECRETARY, CALICUT-673003.
3. THE DISTRICT COLLECTOR
COLLECTORATE, CALICUT-673001.
4. THE KERALA STATE WAQF BOARD
REP. BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR,
COCHIN-682017.
5. T.P.SACKEER
S/O.HASSAN KOYA, THEKUMTHALAPARAMBU, KANNAMPARAMB,
KOZHIKODE-673003.
6. S.V.ASKAR
S/O.MAMMED KOYA, 15/672, NAINAM VALAPPU,
KOZHIKODE-673003.
7. P.RASHID
S/O.AHAMMED KOYA, 15/817, SABIRA NIVAS, NAINAM VALAPPU,
KOZHIKODE-673003.
..2..
:2:
WP(C).NO. 41229 OF 2017
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8. A.V.MAMMED KOYA
S/O.KUNHAYIN, 15/230, FATHIMA MANZIL, PALLIKANDI,
KOZHIKODE-673003.
R1 & R3 BY GOVERNMENT PLEADER SHRI.SWAMIDASAN.K.N
R2 BY ADV. SRI.K.D.BABU,SC, KOZHIKODE CORPORATION
R4 BY ADV.SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
R5-R8 BY ADVS. SRI.V.V.SURENDRAN
SRI.P.A.HARISH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:3:
WP(C).No. 41229 of 2017 (C)
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APPENDIX
PETITIONER'S EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE BYELAW OF THE PETITIONER
ORGANIZATION REGISTERED DATED 23-3-83.
EXHIBIT P2 A TRUE COPY OF THE ORDER OF THE GOVERNMENT OF
MADRAS DATED 24-3-1896.
EXHIBIT P3 A TRUE COPY OF THE SURVEY SKETCH CONCERNING
THE SUBSEQUENT ACQUISITION BY THE CORPORATION
DATED 21-3-2011 ISSUED BY THE NAGARAM VILLAGE
OFFICER.
EXHIBIT P4 A TRUE COPY OF THE SURVEY SETTLEMENT ISSUED BY
THE SPECIAL SETTLEMENT OFFICER, MALABAR DATED
27-12-1903.
EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION OF THE
KOZHIKODE CORPORATION DATED 26-3-2013.
EXHIBIT P6 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE
VILLAGE OFFICER, NAGARAM DATED 18-6-2010.
EXHIBIT P7 A TRUE COPY OF THE ADANGAL REGISTER RELEVANT
PAGE DATED 18-6-2010.
EXHIBIT P8 A TRUE COPY OF THE PAPER REPORT DATED 16-7-2015.
EXHIBIT P9 A TRUE COPY OF THE SUMMONS FOR APPEARANCE
WITH AN INTERIM ORDER DATED 23-3-2015 HAS ISSUED
BY THE FOURTH RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE ORDER PASSED BY THE THIRD
RESPONDENT DATED 14-9-2015
EXHIBIT P11 A TRUE COPY OF THE COUNTER STATEMENT FILED BY
THE PETITIONER IN OP NO.111 OF 2015 DATED 15-6-2015.
EXHIBIT P12 A TRUE COPY OF THE ADDL. COUNTER STATEMENT
FILED BY THE PETITIONER SIMILAR TO EXT P10 DATED
14-9-2015.
RESPONDENTS' EXHIBITS: NIL
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//TRUE COPY//
vgd/05.03.18 PA TO JUDGE
K.HARILAL
&
A.M.BABU, JJ.
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W.P(C)No.41229 of 2017
=======================
Dated this the 02nd day of March, 2018
JUDGMENT
K.HARILAL, J.
Kannamparambu Jumath Palli Paripalana Committee, the petitioner herein, is a society registered under the provisions of the Indian Societies Registration Act. The petitioner filed this writ petition under Article 226 of the Constitution of India with a prayer to call for records leading to Ext.P9 Original Petition and Ext.P10 order passed by the 4th respondent therein and to quash the same by issuing a writ of certiorari. The subject matter of the dispute, in the instant case, is a burial ground and a mosque situated near the same. According to the petitioner, the said burial ground and the adjoining mosque are owned and vested in the local authority namely Corporation of Calicut. The W.P(C)No.41229 of 2017 2 subject matter is not a Wakf property falling under the provisions of the Wakf Act. But the respondents 5 to 8 filed Ext.P9 original petition before the Wakf Board alleging that the said burial ground is a Wakf property and in the said original petition prayed for auditing the statement of income and expenditure of the Wakf under the supervision and direction of the Wakf Board and to conduct election to the office bearers of the Wakf. The petitioners filed Ext.P12 objection challenging the jurisdiction of the Wakf Board in proceeding with Ext.P9 and raising the contention that the subject matter in Ext.P9 original petition is not a Wakf property falling under Sec.52 of the Wakf Act, 1995. Though the said petition was filed in the year 2015, no steps had been taken so far either to decide the jurisdiction and maintainability of the petition or to dispose of the original petition itself.
2. The 2nd respondent Corporation also filed a W.P(C)No.41229 of 2017 3 counter statement claiming that the subject matter of Ext.P9 original petition is not a Wakf property and the 2nd respondent is vested with the management and supervision of the burial ground and nobody other than the 2 nd respondent has any right or possession over the said burial ground. Thus, the 2nd respondent also challenged the jurisdiction of the Wakf Board in considering Ext.P9 original petition.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
4. This writ petition is filed under Article 226 of the Constitution of India. The question in controversy centers around the ownership of a burial ground. According to the petitioner herein, the said burial ground is not a Wakf property and the same is vested with the 2 nd respondent. The 2nd respondent also contended that the burial ground is vested with the 2nd respondent only from time immemorial W.P(C)No.41229 of 2017 4 and is under the supervision and management control of the 2nd respondent. On the other hand, going by Ext.P9 original petition, it could be seen that the respondents 5 to 8 in this writ petition filed the said original petition alleging that the said burial ground is a Wakf property vested with the 4 th respondent and they prayed for auditing the statement of accounts and expenditure of the alleged Wakf by the 4 th respondent and also for conducting election to the office bearers of the Jumath under the supervision of the 4 th respondent.
5. Thus, we find that the question in controversy centers around a factual dispute which cannot be determined in a writ petition filed under Article 226 of the Constitution of India. It is needless to say that the High Court under Article 226 of the Constitution of India is not a fact finding court. The statutory remedy is available to the petitioner under the Wakf Act and the same is pending W.P(C)No.41229 of 2017 5 before the Statutory Authority. We do not find any reason to interfere with the merits of the dispute, invoking the jurisdiction and power under Article 226 of the Constitution of India.
6. However, having regard to the rival pleas raised by all the parties in this writ petition, we find that the factual dispute involved in Ext.P9 original petition requires a decision at the earliest. Though, the counter statement was filed on 14th September, 2015, no step had been taken to consider the jurisdictional issue.
7. In the above context, we direct the Wakf Board to consider and dispose Ext.P9 original petition, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. We further find that the petitioner has challenged jurisdiction of the Wakf Board in dealing with Ext.P9. It is also made clear that the issue of jurisdiction W.P(C)No.41229 of 2017 6 requires consideration of the 4th respondent, as a preliminary issue, at first.
Sd/-
K.HARILAL, JUDGE Sd/-
A.M.BABU, JUDGE vgd/05.03.18