Kerala High Court
The Kerala State Wakf Board vs The Appellate Authority(Lr) on 29 May, 2008
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15461 of 2008(N)
1. THE KERALA STATE WAKF BOARD, V.I.P.ROAD,
... Petitioner
Vs
1. THE APPELLATE AUTHORITY(LR), KANNUR
... Respondent
2. SPECIAL TAHSILDAR, LR, LAND TRIBUNAL,
3. N.P.KUNHIPATHU, W/O.ABOOBACKER HAJI,
For Petitioner :SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :29/05/2008
O R D E R
S. Siri Jagan, J.
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W. P (C) Nos. 15461 & 15803 of 2008
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Dated this, the 29th May, 2008.
J U D G M E N T
In these two writ petitions, the Kerala State Wakf Board is the petitioner. They filed applications under Section 90(3) of the Wakf Act before the Land Tribunal concerned seeking to declare that certain proceedings of the Land Tribunal, whereby 81 cents and 1.64 acres of wakf properties were assigned in favour of the predecessors- in-interest of the contesting respondents in these writ petitions under the Kerala Land Reforms Act and certificates of purchase in respect of the same were issued in favour of the contesting respondents. The applications were dismissed by the concerned Land Tribunal on the ground that the remedy of the petitioner lies in filing an appeal against the order assigning the property to the kudikidappukaran and not to file an application before the Tribunal. Against the same, along with petitions to condone delay in filing the same, the petitioner herein filed appeals before the Appellate Authority. Both the applications for condonation of delay as well as the appeals were dismissed primarily on the ground that the petitioner had still not filed an appeal against the original order of assignment and filed appeals only against the orders of the Land Tribunal in the applications submitted by the petitioner. According to the Appellate Authority also, the petitioner ought to have filed appeals against the original orders of the Land Tribunal assigning the land and not against the orders dismissing the applications of the petitioner under Section 90 (3). The petitioner is challenging the orders of the Land Tribunal and that of the Appellate Authority in these two writ petitions.
2. The contention of the petitioner is that the lower authorities did not appreciate the contentions of the petitioner properly. Under Section 90(1), in every suit or proceeding relating to title to or possession of wakf property concerned, the court or Tribunal shall W.P.C. No. 15461 & 15803/2008. -: 2 :- issue notice to the Board at the cost of the party instituting such suit or proceeding. In this case, before passing the orders under the Kerala Land Reforms Act, the Land Tribunal did not issue notices to the Wakf Board. It is under the above circumstances that the petitioner filed applications under Section 90(3), which provides that in the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf. It is in exercise of that right under Section 90(3), the petitioner has filed the applications before the Tribunal, which are perfectly maintainable. Therefore, the orders of the Tribunal as well as the Appellate Authority to the effect that the petitioner should have filed appeals against the original orders for assignment is patently unsustainable, is the contention. The petitioner also points out that under Section 107 of the Wakf Act, the provisions of the Limitation Act 1963 are not applicable to a wakf property.
3. I have considered the rival contentions in detail.
4. Going by Section 90(3), perhaps the contention of the petitioner may be correct because Section 90(3) gives a right to the Wakf Board to file a petition against a suit or proceeding before the Court or Tribunal itself. But, Section 90(3) specifies that such petition shall be filed within one month of its coming to know of such suit or proceeding. In this case, the properties in question were assigned to the respective tenant as early as on 21-5-1975 and 21-10- 1976. Admittedly, ever since then and even before that date, the properties in question were in the possession of the respective tenant. 30 years have gone by. No reasonable person can assume that both the managing committee of the Wakf as well as the Wakf Board were W.P.C. No. 15461 & 15803/2008. -: 3 :- totally unaware of the possession of the property by the contesting respondents and their predecessors-in-interest. If possession was in the hands of the tenant, then they should naturally have constructive knowledge about proceedings under the Kerala Land Reforms Act especially when Wakf Act does not exempt wakf properties from the purview of the Kerala Land Reforms Act. In fact, in the applications filed before the Land Tribunal, the petitioner does not specifically state the date on which the petitioner came to know of the proceedings. A vague statement that they have filed the application within one month alone is there. I am of opinion that it cannot for a moment be believed that the Wakf Board was totally unaware of the possession of the wakf properties by the kudikidappukaran for all these 30 years and more. Therefore, clearly, the petitioner has not filed the applications within the time prescribed in Section 90(3) of the Wakf Act. There is also no provision for condonation of delay in the Act. That being so, clearly those petitions are not maintainable. Therefore, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner for the above said reasons. Accordingly, the writ petitions are dismissed.
S. Siri Jagan, Judge.
Tds/