Kerala High Court
Mullachetta Jaffer vs Nangotiam Muthukoya on 22 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
2024:KER:80993
CRP(WAKF)NOs.21/2020 & 5/2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
CRP(WAKF) NO. 21 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 24.04.2020 IN WT(OA)
NO.2 OF 2017 OF WAKF TRIBUNAL, LAKSHADWEEP, KAVARATTI AGAINST
THE ORDER DATED 07.03.2017 IN W.C.NO.1/2013 OF THE LAKSHADWEEP
STATE WAQF BOARD.
PETITIONERS/RESPONDENTS 2, 3, 4, 5, 6 & 7 IN W.T(OA)
NO.02/2017/RESPONDENTS 2, 3, 4, 5, 6 & 7 IN W.C.NO.1/2013:
1 NANGOTIAM MUTHUKOYA,
AGED 69 YEARS, S/O. KIDAVE,
KAVARATTI-682555, UT OF LAKSHADWEEP. (DECEASED)
2 M.C. MUTHUKOYA
AGED 70 YEARS, S/O. KOYAMMA MALMI,
KAVARATTI-682555, UT OF LAKSHADWEEP.
3 NANGOTIAM CHERIYABI,
AGED 57 YEARS, D/O. KIDAVE,
KAVARATTI-682555, UT OF LAKSHADWEEP.
4 NANGOTIAM ANWAR HUSSAIN
AGED 35 YEARS, S/O. M.C. MUTHUKOYA,
KAVARATTI-682555, UT OF LAKSHADWEEP.
5 NANGOTIAM NOUSHAD,
AGED 33 YEARS, S/O.M.C. MUTHUKOYA,
KAVARATTI-682555, UT OF LAKSHADWEEP.
2024:KER:80993
CRP(WAKF)NOs.21/2020 & 5/2021
2
6 NANGOTIAM FOUSIYA
AGED 32 YEARS, D/O. M.C. MUTHUKOYA,
KAVARATTI-682555, UT OF LAKSHADWEEP.
PETITIONERS 3 TO 6 IN CRP(WAKF) 21/2020 ARE RECORDED
AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST
PETITIONER AS PER ORDER DATED 1/2/2022 IN
IA.NO.1/2022 IN CRP(WAKF)21/2020.
BY ADVS.
M.P.RAMNATH
SRI.P.RAJESH (KOTTAKKAL)
SEI.M.VARGHESE VARGHESE
SMT.S.SANDHYA
SRI.BEPIN PAUL
SRI.SHALU VARGHESE
SRI.S.DEEPAK
SRI.ANTONY THARIAN
SHRI.ARJUN S.
SHRI.ASWIN PRABHU S.D.
RESPONDENTS/LIVING APPELLANTS AND 8TH RESPONDENT & DECEASED
APPELLANTS 2 & 3 IN W.T(OA)NO.02/2017/PETITIONERS IN
W.C.NO.1/2013:
1 MULLACHETTA JAFFER,
AGED 59 YEARS, S/O. ASSAINAR,
KAVARATTI-682555, UT OF LAKSHADWEEP.
2 KADER MOOTHAMMADE,
AGED 77 YEARS, S/O. IBRAHIM,
KAVARATTI-682555, UT OF LAKSHADWEEP.
3 ASKAR ALI,
AGED 46 YEARS, S/O. KOONIYAM ALI,
KAVARATTI-682555, UT OF LAKSHADWEEP.
4 POOKOYA BEERATHODE,
AGED 69 YEARS, S/O. USMAN,
KAVARATTI-682555, UT OF LAKSHADWEEP.
2024:KER:80993
CRP(WAKF)NOs.21/2020 & 5/2021
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5 SAINUL ABID MOOTHAMMADE,
AGED 41 YEARS, S/O. MUTHUKOYA,
KAVARATTI-682555, UT OF LAKSHADWEEP.
6 RIYAS KHAN NELIYAMPURA,
AGED 29 YEARS, S/O. JAFFER,
KAVARATTI-682555, UT OF LAKSHADWEEP.
7 THE LAKSHADWEEP STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, KAVARATTI
ISLAND , U.T. OF LAKSHADWEEP-682555.
8 ABDUL SALEEM PUTHIYAVEEDU,
AGED 48 YEARS, S/O. HAMZATH, KAVARATTI-682555,
UT OF LAKSHADWEEP. (DIED)
(HE DIED ON 16.07.2019 PENDING WT(OA) 2/2017 AND BY
ORDER PASSED IN IZ NO.1/2020 BY THE TRIBUNAL THAT
RIGHT TO SURVIVES AGAINST THE SURVIVING
APPELLANTS/APPLICANTS; BUT AGAIN WRONGLY SHOWN IN THE
ARRAY OF PARTIES IN THE IMPUGNED JUDGMENT AND HENCE
SHOWN IN THE PARTY ARRAY HEREIN)
9 A.P. MOHAMMED HANEEFA SAKHAFI,
ALACHAPPADE, AGED 60 YEARS, S/O. IBRAHIM, KAVARATTI-
682555, UT OF LAKSHADWEEP. (DIED)
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN
SMT.BHANU THILAK
SRI.M.MUHAMMED SHAFI
SRI.PRENJITH KUMAR -SC
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
22.10.2024, ALONG WITH CRP(WAKF).5/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2024:KER:80993
CRP(WAKF)NOs.21/2020 & 5/2021
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
CRP(WAKF) NO. 5 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 24.04.2020 IN WOA
NO.2 OF 2017 OF WAKF TRIBUNAL, LAKSADWEEP, KAVARATTI,
ARISING FROM THE ORDER DATED 07.03.207 IN W.C.NO.1/2013 OF
THE LAKSHADWEEP STATE WAQF BOARD
PETITIONERS/APPLICANTS 1 & 4-8/APPELLANTS 1 & 4-8:
1 MULLACHETTA JAFFER
AGED 56 YEARS, S/O ASSAINAR, KAVARATTI-682 555.
2 KADER MOOTHAMMADE,
AGED 74 YEARS, S/O IBRAHIM, KAVARATTI-682 555.
3 ASKAR ALI,
AGED 43 YEARS, S/O KOONIYAM ALI,
KAVARATTI-682 555.
4 POOKOYA,
AGED 66 YEARS, BEERATHODE, S/O UNMAN,
KAVARATTI-682 555.
5 SAINUL ABID,
MOOTHAMMADE, S/O MUTHU KOYA, KAVARATTI-682 555.
6 RIYAZ KHAN,
AGED 33 YEARS, NELIYAMPURA, S/O JAFFER,
KAVARATTI-682 555.
2024:KER:80993
CRP(WAKF)NOs.21/2020 & 5/2021
5
BY ADVS.
K.S.HARIHARAPUTHRAN
SMT.BHANU THILAK
RESPONDENTS/RESPONDENTS 2-8/RESPONDENTS 2-8:
1 NANGOTIAM MUTHUKOYA
AGED 66 YEARS
S/O KIDAVE, KAVARATTI-682 555.
2 M.C.MUTHUKOYA,
AGED 62 YEARS
S/O KOYAMMA MALMI, KAVARATTI-682 555.
3 NANGOTIAM CHERIYABI,
AGED 54 YEARS
D/O KIDAVE, KAVARATTI-682 555.
4 NANGOTIAM ANVER HUSSAIN,
AGED 32 YEARS
S/O M.C.MUTHUKOYA, KAVARATTI-682 555.
5 NANGOTIAM NOUSHAD,
AGED 30 YEARS
S/O M.C.MUTHUKOYA, KAVARATTI-682 555.
6 NANGOTIAM FOUSIYA,
AGED 29 YEARS
D/O M.C.MUTHUKOYA, KAVARATTI-682 555.
7 THE LAKSHADWEEP STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
KAVARATTI ISLAND, LAKSHDWEEP IN 692 555.
BY ADVS.
SRI.M.P.RAMNATH
SRI.BEPIN PAUL
2024:KER:80993
CRP(WAKF)NOs.21/2020 & 5/2021
6
SMT.S.SANDHYA
SRI.SHALU VARGHESE
SHRI.ARJUN S.
SMT.UMA R.KAMATH
SRI.P.RAJESH (KOTTAKKAL)
SEI.M.VARGHESE VARGHESE
SRI.S.DEEPAK
SRI.ANTONY THARIAN
SRI.PRENJITH KUMAR -SC
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
22.10.2024, ALONG WITH CRP(WAKF).21/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2024:KER:80993
CRP(WAKF)NOs.21/2020 & 5/2021
7
ORDER
[CRP(WAKF) Nos.21/2020, 5/2021] Amit Rawal, J.
1. This order shall dispose of two revision petitions CRP(Wakf)Nos.21/2020 and 5/2021 against the order of the Tribunal dated 24.04.2020 in W.T.(OA) No.2/2017, whereby, though accepting the findings of the Wakf Board rendered in favour of the petitioners in CRP(Wakf)No.21/2020 (respondents in CRP(Wakf) No.5/2021), but suo motu ordered the claim set up by the respondents (petitioners in CRP(Wakf)No.5/2021) that the entire 27.1 Ares of land situated in Survey No.94/6 to be a Wakf property. It is in that background, both the parties are before us in these revisions.
2. Mullachetta Jaffer and one Abdul Jabbar originally preferred Wakf Complaint No.1/2013 claiming that entire extent of land measuring 27.1 Ares situated in Survey 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 8 No.94/6 of Kavaratti be considered as a Mosque and the Mutawalli, the then respondent No.1 - Nangotiam Rukhia since dead, be removed as he, without the permission of the Board, transferred the land by a document bearing No.28/2010 dated 09.03.2010 in favor of respondent Nos.2 to 7 before the Wakf Tribunal. It was alleged that the beneficiary having interest in the Mosque and the Mosque called Pazhayapalli and its property are registered in the office of Lakshawdeep State Wakf Board in 2008. The Mosque was constructed about 1300 years back by Hazrath Ubaidulla. So before registration it was a Wakf by user as there was no documents showing dedication of the Wakf. In the year 1968 caused a notification in respect of various parcels of the land including serial No.207 of Pazhayapalli. For the purpose of conducting the survey as to whether the part of the property or the entire property around the Mosque was the Wakf or not, a notice dated 28.06.1970 was 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 9 issued to the Manager of Pazhayapalli. In the aforementioned notice, survey number was mentioned as 94/6 and as per the extract of land register of Kavaratti Ext.A2, after survey it was found that only portion of 94/6 ie., 0.09 hectors ie, 900M2 of original purchase certificate was a Wakf property. It is pertinent to mention here that at the relevant point of time, the survey number was incorrectly mentioned 93/5 but subsequently it was found that the survey number was 94/6 as noticed by the Wakf Board and the Tribunal, owing to the joint submissions of the parties. Wakf Board vide judgment dated 20.02.2017 dismissed the Wakf complaint No.2/2015. An appeal bearing No.2/2017 was preferred by the applicants in the wakf complaint, who are the petitioners in CRP (Wakf)No.5/2021, setting up various grounds.
3. Neither the land of 27.1 Are or 900M2 in Survey No.94/6 has been shown in the register of Waqf as 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 10 properties. But, however, while rendering the remaining findings, held that the Wakf Board was factually and legally incorrect in holding the entire property in Survey No.94/6, incorrectly mentioned as 93/5, to be not Wakf property, but while exercising the power under Section 54 of the Wakf Act held that the person who are in possession of the property ie., the respondents in the complaint and petitioners in CRP No.21/2020, are encroachers. Therefore, Wakf Board cannot remove the encroachment from 18.1 Ares of land in Survey No.94/6 and 900M2 of land even though the land Wakf property and thereafter held that the entire property in 94/6 to be Wakf property, therefore, granted liberty to the applicants to move before the appropriate forums. It was also noticed that in the meantime, the Mutawalli had died therefore, the first relief sought by the complainants in the complaint stood extinguished. In view of the dichotomous findings by the Tribunal both the parties to the lis have 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 11 approached this Court.
4. The question which is posed before us is as to whether the Tribunal while exercising the powers under sub- section (2) of Section 83 of the Wakf Act can have the trappings of Article 227 of the Constitution of India or not. Section 83 of the Wakf Act reads as under:
83. Constitution of Tribunals, etc.--1 [(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.
(2) Any mutawalli person interested in a waqf 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 waqf.
(3) Where any application made under sub-section (1) relates to any waqf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 12 such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the waqf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the waqf or any other person interested in the waqf or the waqf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such waqf or waqf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interest of justice to deal with the application afresh.
(4) Every Tribunal shall consist of--
(a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman;
(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 13 Additional District Magistrate, Member;
(c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation.
(4A) The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed.] (5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.
(8) The execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).
(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 14 question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."
5. Nowhere in the aforementioned provisions of the Act, the superintending powers as provided under Article 226 to the High Court is vested with the Tribunal. In such circumstances, the role of the Tribunal was either to set aside order of the Board or otherwise, which in fact has been done by upholding the order but gone beyond the jurisdiction in directing the complainants to take recourse in accordance with law by holding that the entire portion of property in Survey No.94/6 and 93/5 which in fact has already been corrected but still referred to as 93/5, is Wakf. Perusal of the records particularly the Land Register Ext.A4 shows that only 900M2 of the land was dedicated to the Mosque and registered with the Wakf. However, in the 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 15 proceedings/notification in 1968 mentioning the area around the Mosque, an attempt is made to bring the entire property adjacent to the Mosque under the ambit of Wakf. The evidence as noticed above reveals that after causing of the notification in 1968, as per the notice of 28.06.1970 Ext.A3, intention was reflected as to whether the Survey No.94/6 consists of entire portion of 27.1 Are or of lesser portion. However, in the land register record, it has been recorded that only 900M2 of the land is being mentioned as Mosque and not the other area. This is precisely the view given by the Wakf Board and upheld by the Tribunal. A register is the record to be looked into for adjudication in view of the findings of the Supreme Court in Madanuri Sri.Rama Chandra Murthy v. Syed Jalal [2017 (13) SCC 174] wherein paragraph Nos.13 to 22 it has been held as under:
13. Section 4 of 1954 Act, empowered the State Government to appoint a State Commissioner, and as many Additional and Assistant Survey Commissioners of 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 16 Wakf as may be necessary, by a notification in the Official Gazette for the purpose of making survey of wakf properties existing within the State. The Survey Commissioner after making a survey of wakf properties would submit his report to the State Government containing various particulars as mentioned in sub-sections (3) and (4) of Section 4 of the Act. Section 5 of 1954 Act mandated that on receipt of such report from Survey Commissioner made under sub-section (3) of Section 4, the State Government should forward a copy of the same to the Wakf Board. The Wakf Board would examine the report forwarded to it and publish in Official Gazette, the list of Wakfs in the State. For resolving the disputes regarding Wakfs, Section 6 of 1954 Act, provided jurisdictional Civil Court as a forum and decision of Civil Court in respect of such matters should be final. It was also clarified that no such suit should be entertained by the Civil Court, after the expiry of one year from the date of publication of the list of Wakfs as per sub-section (2) of Section 5. Sub-section (4) of Section 6 stated that the list of Wakfs published under sub-section (2) of Section 5 shall be final and conclusive unless such list is modified on the direction of the Civil Court.
14. The provisions found in Sections 5 and 6 of Wakf Act 1995 and Act of 1954 are almost akin to each other.
However the change brought in by the Parliament under 1995 Act is that, in the case of dispute regarding Wakfs, the aggrieved party needs to approach the Wakf Tribunal 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 17 constituted under Section 83 of the Waqf Act 1995 and consequently the jurisdiction of the Civil Court is taken away. Except the aforesaid change, no other substantial modification is found in those provisions. Section 7 of 1995 Act empowers the Tribunal to determine the disputes, regarding Auqaf/Wakfs, the particulars of which are specified therein.
15. Section 6 and Section 7 of Waqf Act 1995 bars jurisdiction of the Civil Court to try the civil suit in respect of questions specifically enumerated under those provisions. Section 85 of Waqf Act, 1995 further clarifies that no suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
16. The overall view of the aforementioned provisions contained in Wakf Act, 1954 and Waqf Act 1995 make it evident that even under 1954 Act, as in 1995 Act, the Survey Commissioners were appointed for the purpose of making survey of wakfs in State. The Survey Commissioner was duty bound to conduct the survey of wakfs in the State and after making such enquiry, as he might consider necessary, would submit his report in respect of Wakfs existing in the State to the State Government with necessary particulars. Copy of the said report would be forwarded by the State to the Wakf Board which in turn would examine the report by applying its mind and 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 18 thereafter would publish the notification. Whereas under
1995 Act, the Wakf Board after examining the report forwards it back to Government within a period of 6 months for publication in the Official Gazette in the State. Pursuant thereto the State will publish the Gazette notification. The revenue authorities will consequently include the list of Auqaf properties while updating the revenue records under sub-section (3) of Section 5 of 1995 Act.
17. Thus it is amply clear that the conducting of survey by the Survey Commissioner and preparing a report and forwarding the same to the State or the Wakf Board precedes the final act of notifying such list in the official gazette by the State under 1995 Act, (it was by the Board under 1954 Act). As mentioned supra, the list would be prepared by the Survey Commissioner after making due enquiry and after valid survey as well as after due application of mind. The enquiry contemplated under sub- section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out at the grass root level, as to whether the property is a Wakf Property or not. Thereafter the Wakf Board will once again examine the list sent to it with due application of it's mind and only thereafter the same will be sent to Government for notifying the same in the Gazette. Since the list is prepared and published in the official Gazette by following aforementioned procedure, there is no scope for the plaintiff to get the matter reopened by generating some 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 19 sort of doubt about Survey Commissioner's report. Since the surveyor's report was required to be considered by the State Government as well as Wakf Board (as the case may be), prior to finalisation of the list of properties to be published in the Official Gazette, it was not open for the High Court to conclude that the Surveyor's report will have to be reconsidered. On the contrary Surveyor's report merges with the Gazette Notification published under Section 5 of the Wakf Act.
18. As held by the Tribunal as well as the High Court, the property in question does not find place in the Gazette notification published under Section 5 of the Wakf Act. In other words, the property in question is not notified in the official Gazette as Wakf property. If anybody including the Wakf Board or the plaintiff was aggrieved by such non- inclusion of the property in the list notified, the aggrieved person should have raised the dispute under Section 6 within a period of one year from the date of publication of the Gazette notification in the matter. The plaintiff has practically questioned the non-inclusion of the property in the list and the validity of the list notified in the official gazette dated 28.06.1962 after the lapse of about 50 years, i.e. in the year 2013 by filing the present suit.
19. As per Section 27 of 1954 Act (Section 40 of 1995 Act), the Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not the Board after making 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 20 such enquiry as it deems fit, decide the question. The decision of the Board on any question under sub-section (1) of Section 27 of 1954 Act (or under Section 40(1) of 1995 Act) shall, unless revoked or modified by the Civil Court, be final. The effect of Section 27 of 1954 Act or Section 40 of 1995 Act is that, if any property had been omitted to be included in the list of auqaf by inadvertence or otherwise, then it was/is for the Wakf Board to take action, as per said provision. In this context, it is relevant to note the observations by this Court in the case of T.N.Wakf Board vs. Hathija Ammal [1] which read thus:
"In the event, any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any question arises whether a particular property is a wakf property or not, it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf Board shall be final unless revoked or modified by a civil court. Such action has not been taken by the Wakf Board in this case."
20. Sub-section (1A) of Section 4 is inserted by Act 27 of 2013 w.e.f. 1.11.2013 and the same reads thus:
"(1A) Every State Government shall maintain a list of auqaf referred to in sub-section (1) and the survey of auqaf shall be completed within a period of one year 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 21 from the date of commencement of the Wakf (Amendment) Act, 2013, in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013:
Provided that where no Survey Commissioner of Waqf has been appointed a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement."
21. In the matter on hand, the said provision also will not come to the aid of the plaintiff inasmuch as the said sub- section can be employed only if survey of auqaf was not done before the commencement of Wakf (Amendment) Act, 2013. Admittedly in the matter on hand, the survey was conducted prior to 1962 and based on such Surveyor's report only, the list was prepared and the same was submitted to State Government, which in turn, was forwarded to Wakf Board, the Wakf Board after examining the report published the list in the official gazette in the year 1962. Hence, sub-section (1A) of Section 4 also will be of no avail to the plaintiff.
22. In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non- inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 22 Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra."
6. The challenge to the partition deed of 09.03.2010 as per the claim set out in the complaint in 2013 was on the premise that the area around the Mosque would also be a Mosque by user. The further question which arises is whether the area sought to be included as a Wakf at the spot was at any point of time being used as a Wakf as per the definition of Wakf under Section 3(r) of the Act or not. As per the commissioner's report, sketch plan has been placed on record and it is seen that the area dedicated to the Mosque is separate and the remaining area is being used as a building with a private pond.
2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 23
7. During the course of the hearing, we specifically asked the question whether the Mosque at any point of time had been paying the building tax, but the answer was negative, whereas, on the contrary, the respondents arrayed in the complaint and the petitioners in CRP (Wakf)No.21/2020 were in possession of the receipts. Besides the documents referred to above, complainants failed to place on record that the area in occupation of the respondents at any point of time being used as a Wakf by user as defined under the Act aforementioned. As far as the relief No.1 is concerned, the Mutawalli during the course of hearing had already died thus had become extinct.
8. Intriguingly, vide deed dated 09.03.2010 an additional property was dedicated as Wakf property measuring 640M2 to the Wakf. So the total Wakf area became 1540M2 and after calculation, the area which remained in the possession of the respondents before the 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 24 Board was 18.1 Ares of land which has been partitioned amongst the family members ie., respondent Nos.2 to 7. Having failed to advert to such factual, legal and documentary evidence on record, we are of the view that Tribunal exceeded jurisdiction in holding the possession of the respondents - petitioners CRP(Wakf)No.21/2020 to be as encroacher giving liberty to the complainants to take action in accordance with law, once there was categoric finding that complainant failed to adduce any evidence on record for forming an opinion that the entire property ie., 18.01 Ares, after written dedication and by user, was the Wakf property.
9. For the reasons aforementioned, we thus set aside the findings rendered by the Tribunal which were under stay during the pendency of the revision petition vide order dated 26.08.2020 as null and void and uphold the findings to the part and portion whereby the order of the 2024:KER:80993 CRP(WAKF)NOs.21/2020 & 5/2021 25 Wakf Board has been upheld. Consequently, CRP(Waqf)No.21/20 is allowed and CRP(Waqf) No.5/2021 is dismissed.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE nak