Kerala High Court
Irshad vs Chekkutty Haji on 22 November, 2012
Author: K.Hema
Bench: K.Hema, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934
OP (WAKF).No. 3795 of 2012 (R)
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OS.38/2012 OF WAKF TRIBUNAL, KOZHIKODE
----------------
PETITIONERS :
----------------------
1. IRSHAD,
S/O.MUHAMMED @ BAVA
RESIDING AT VALIYAPEEDIYAKKAL HOUSE
ULLANAM AMSOM AND DESOM, TIRURANGADI TALUK
MALAPPURAM DISTRICT.
2. SOOPPIKUTTY
S/O.LATE KOYA MARAKKAR
PALATHINGAL VALIYAPEEDIYAKKAL HOUSE,
PARAPPANANGADI AMSOM DESOM, TIRURANGADI TALUK
MALAPPURAM DISTRICT.
BY ADVS.SRI.K.RAMACHANDRAN
SRI.P.RAMACHANDRAN
SMT.S.JAYASREE
SRI.K.MOHAMMED FAISAL NAHA
RESPONDENT(S):
--------------------------
1. CHEKKUTTY HAJI,
S/O.MUHAMMED, CHAPPANGATHIL HOUSE, SECRETARY
PALATHINGAL PULIKKALAKANDI JUMAYATH PALLI COMMITTEE
REPRESENTING THE COMMITTEE
ULLANAM AMSOM DESOM, TIRURANGADI TALUK
P.O. ULLANAM, MALAPPURAM DISTRICT, PIN-676 303.
2. AHAMMED KUTTY MUSLIYAR
PRESIDENT
PALATHINGAL PULIKKALKANDI JUMAYATH PALLI COMMITTEE
RESIDING AT PALATHINGAL IN
ULLANAM AMSOM AND DESOM, TIRURANGADI TALUK
ULLANAM, MALAPPURAM DISTRICT, PIN-676 303.
...2/-
OP (WAKF).No. 3795 of 2012 (R) -2-
3. ABOOBACKER
S/O.MOIDEEN, PALATHINGAL VALIYAPEEDIYAKKAL
ULLANAM AMSOM AND DESOM, TIRURANGADI TALUK
P.O. ULLANAM, MALAPPURAM DISTRICT, PIN-676 303.
*ADDL. R4 IMPLEADED
*4. KERALA WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
V.I.P. ROAD, P.O. KALOOR,
KOCHI - 682 017.
*IS IMPLEADED AS ADDL. R4 AS PER ORDER DATED 22.11.2012 IN
IA.15585/2012
R1 TO R3 BY ADVS. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE
SRI.T.H.ABDUL AZEEZ
SRI.K.K.SAIDALAVI
R4 BY ADV. SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 06-12-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
OP (WAKF).No. 3795 of 2012 (R)
APPENDIX
PETITIONERS' EXHIBITS :
EXHIBIT P1. TRUE COPY OF THE AFFIDVIT AND PETITION IN IA NO.573/2012 IN
OS NO.38/2012 DATED 27TH SEPTEMBER, 2012 FILED BEFORE THE WAKF
TRIBUNAL, KOZHIKODE.
EXHIBIT P2. TRUE COPY OF THE OBJECTIONS IN IA. 573/2012 IN OS 38/2012 DATED
9/10/2012.
EXHIBIT P3. TRUE COPY OF THE ORDER DATED 20/10/2012 IN IA NO.573/2012 IN OS
NO.38/2012.
RESPONDENTS' EXHIBITS :
EXT. R1(a) PHOTOCOPY OF THE PERMISSION GRANTED BY WAKF BOARD.
//TRUE COPY//
P.S. TO JUDGE
Mn
K.HEMA & P.S.GOPINATHAN, JJ
...........................................
O.P(WAKF)No. 3795 of 2012
............................................
Dated 6th December, 2012
JUDGMENT
K.HEMA, J The petitioners filed a suit before the Wakf Tribunal along with an application for temporary injunction. After hearing both sides, it was held that the petitioners are not entitled for injunction and the petition was dismissed. Aggrieved by the order of dismissal, this petition is filed.
2. According to the petitioners, the plaint schedule property is item No.3 of Schedule F in a partition deed. Long before the execution and registration of the partition deed, the suit property was dedicated as Wakf by the Predecessor in interest of the petitioners and a Mosque was constructed thereon by spending own funds. There was no formal deed of Wakf. The Muslim community were allowed to use the Mosque for prayer and other religious purposes. The remaining property was dedicated for the use as burial ground.
3. After the death of Late Moothakutty, the plaint schedule property as well as other items of Wakf properties dedicated by OP(Wakf)No.3795/2012 2 him were managed by his son, Moideen as Mutawalli. During his time also, no registered document was created evidencing dedication. Later, a partition deed was executed after the death of Moideen by his legal heirs. In the partition deed also, it was mentioned that the property other than the Mosque is to be used as graveyard etc. Recently, two other Jumayath Mosques were also established near the Mosque which situated in the plaint schedule property. Separate Mahals were also formed.
4. The Mosque situated in the plaint schedule property does not require any re-construction or additional construction, especially since Mosque which was constructed in the recent time had sufficient space for the worshipers. Innumerable graves are situated very close to the existing Mosques which are highly revered. Hence any attempt for re-construction of the Mosque would result in putting up construction above the existing grave after destruction of graves, will be against the tenets of Islam. It will also injure the sentiments of the persons whose predecessors have been buried in these graves.
5. In the plaint schedule property, many of the predecessors of the petitioners were buried very close to the OP(Wakf)No.3795/2012 3 existing Mosque and if any addition or re-construction is effected to the Mosque, it would cause mental agony, hardship and injury to the petitioners and members of their family. Respondents 1 to 3 and the supporters of the Committee have decided to re- construct the Mosque by demolishing the existing Mosque and putting up additional extension without getting the consent and approval of Wakf Board and ignoring the resistance by the petitioners and family members. Respondents 1 and 2 have already cut and removed the valuable timber trees including teak tree from the surrounding areas of the Mosque.
6. The reconstruction or extension will be possible only with the approval and consent of the Wakf Board. It shall be done only after obtaining the permit and approval under the Kerala Panchayat Building Rules. As per Rule 95(B) of Kerala Wakf Rules, it is mandatory to obtain permission from the District Collector before applying for getting permit under the Kerala Panchayat Building Rules, but that is also not done in this case. Respondents 1 to 3 are attempting to demolish portion of the existing Mosque for the purpose of re-construction and extension which is illegal and unauthorised.
OP(Wakf)No.3795/2012 4
7. In such circumstances, petitioners pray for a temporary injunction restraining the respondents 1 to 3 from demolishing the Mosque and making additions or alterations thereto by making any new construction over the graves without getting approval and sanction of the Kerala Wakf Board for such demolition and re-construction of the mosque in the grave yard.
8. Respondents 1 to 3 filed counter statement and contended that the petition is not maintainable and is without any bonafides. The Mosque involved in the case is very old one which is in a dilapidated condition and it requires reconstruction. Permission was obtained from Wakf Board and construction work was going on, when the suit was filed. It is not correct to say that the proposed reconstruction which is to be in burial ground is against any Muslim tenets. If an instruction had been given to Commissioner, this fact would have been clear. But it was not done.
9. There was a Mosque in the property since two centuries back, but it was taken away by flood and hence, another Mosque was constructed in the property, which was kept for use as a burial ground, it is contended in the written statement. The said OP(Wakf)No.3795/2012 5 Mosque is also in a dilapidated condition. The Committee has been maintaining the Mosque. Various other contentions were also raised in the counter statement.
10. The Wakf Tribunal, on consideration of certain contentions and by relying upon a decision reported in (1980 KLT SN 124, Page 59) held that the petitioners have not been able to bring out a prima facie case for getting an injunction. As per the dictum laid down in the decision, it is stated in the Encyclopaedia of Islam, that the prophet himself got a mosque built over a grave yard in Madeena. It cannot be said that there is any prohibition in the construction of a Mosque over a grave yard if the prophet himself has done that, it is held. Mainly on this finding, the injunction petition was dismissed.
11. Heard both sides. The learned counsel for the petitioners at the very outset argued that various documents were produced by the petitioners in support of the contentions raised. But none of those documents were referred to in the impugned order nor are those documents marked. The respondents also produced documents, but those were also not marked in this case. Even Commissioner Report is not marked or OP(Wakf)No.3795/2012 6 considered while disposing of the petition, it is submitted. The learned counsel for the petitioners also argued that several vital contentions were raised by petitioners as per the pleading in the plaint as well as in the application for temporary injunction, but none of them was considered by the learned Tribunal.
12. On hearing both sides and on going through the impugned order, we are satisfied that the main question which was considered by the learned Tribunal is whether a Mosque could be constructed above the grave yard or not. But on going through the pleadings it is clear that as per the pleadings that alone was not the issue. Various factual disputes were raised by the parties, which if considered would have a bearing on the question whether an injunction could be granted or not.
13. It also appears from the impugned judgment that the learned Tribunal was carried away by the contentions raised by the respondents that sanction was granted by the Wakf Board for reconstruction of the Mosque. But according to learned counsel for petitioners, only the order of the Wakf Board was produced by the respondents before the lower court. But, what exactly were the details shown in the application or the plan, submitted OP(Wakf)No.3795/2012 7 before the Secretary of the Wakf Board are not before the Tribunal. Therefore, what exactly is the sanction granted cannot be ascertained. It is not clear from the order of the Wakf Board alone whether the re-construction being carried on by the respondents was actually sanctioned or not.
14. Even though arguments were advanced that the request made by respondents was to allow an extension to the existing Mosque and thereafter to demolish the old Mosque and make a reconstruction in the very same place, etc, no document was produced to support such contentions before the Tribunal. Therefore reliance placed on the submissions made by the respondent that Wakf Board had approved the reconstruction alone cannot be made a ground to reject the prayer for injunction, it is strongly contended.
15. The learned counsel for the petitioners also argued that there is a specific contention raised that there is violation of Rule 95(B) of the Kerala Wakf Rules as per which the indulgence of the District Collector is required before Mosque is altered or reconstructed. But there is absolutely nothing on record to show that District Collector had in any way informed about proposed OP(Wakf)No.3795/2012 8 reconstruction of the Mosque as required under the relevant rules. It is also pointed out that a specific contention was raised that no approval or permit was obtained under the Kerala Panchayat Building Rules and this contention was also not looked into.
16. On hearing both sides and on going through the impugned order, it is clear that most of the relevant contentions raised by the petitioners in the petition are not considered by the learned Tribunal before dismissing the application for injunction. Needless to say that Tribunal is bound to consider the rival contentions raised by parties while taking a decision in the matter, especially if resolving of such disputes will have a direct bearing on the question whether the prayer in the application can be allowed or not. An order passed without consideration of the rival contentions is opposed to principles of natural justice and is not legally sustainable.
17. The learned senior counsel for the respondents vehemently contended that the situation is not as submitted by the petitioners or argued by the learned counsel for the petitioners. There is absolutely no bar in making a reconstruction OP(Wakf)No.3795/2012 9 of the mosque after obtaining sanction from the Wakf Board. The Wakf Board approved the proposed reconstruction and extension. Therefore, the petition is without any merit, it is strongly contended.
18. The learned senior counsel for respondents also strongly contended that this petition under Article 227 of Constitution of India is not maintainable. As per Section 83(9) of Wakf Act, a specific remedy is available to the petitioners to challenge the interim order passed by the Tribunal and hence Article 227 of the Constitution cannot be invoked, it is argued. On hearing both sides we are satisfied that there is a specific provision under Section 83(9) of Wakf Act as per which aggrieved party can challenge even an interim order passed by the Wakf Tribunal.
19. Though as per Section 83(9), no appeal can be filed against any order whether interim or otherwise given or made by the Tribunal, High Court, on application by any person aggrieved, can call for and examine the records, a dispute, question or other matter which has been determined by the Tribunal. This can be done for the purpose of satisfying itself as to the correctness, OP(Wakf)No.3795/2012 10 legality or propriety of such determination. Thereafter, this court can confirm, reverse or modify such determination or pass such order as it may think fit.
20. However, on the facts of this case, we do not find it fit to dismiss the petition on the ground that the petition is not maintainable. The petitioner is aggrieved by an interim order passed by the Tribunal. Section 83(9) permits this court to call for and examine the records to satisfy itself of the legality, correctness or propriety of the order as stated in the provision. Therefore, we are of opinion that instead of dismissing the application on the ground raised, the petition can be treated as one under Section 83(9) of Wakf Act. We make it clear that in this proceedings, we are only examining the legality, correctness or propriety of the determination by the Tribunal.
21. On consideration of the contentions raised, we are satisfied that Tribunal has violated the principles of natural justice in making the determination on the dispute and this itself is a reason to interfere in the impugned order. However we are unable to resolve the factual disputes between the parties for want of documents which are relied upon by the parties. Though OP(Wakf)No.3795/2012 11 the documents are produced by the parties, none of the documents was marked or even referred to in the impugned order.
22. Unless the documents are looked into, the disputes cannot be resolved and a right decision cannot be taken. Therefore, the only course open to this court is to set aside the order and remand the matter for fresh consideration and disposal in accordance with law. The Tribunal shall consider all the rival contentions which have a bearing on the legal right and liabilities of the parties, for deciding whether an injunction can be granted or not.
23. However, it is submitted by learned senior counsel for respondents that there is urgency for a reconstruction and extension of the Mosque. But, as per an interim order passed in this proceedings, we have directed the construction work to be kept in abeyance until further orders. Taking all facts and circumstances of this case into consideration, we find that in the interest of justice, it is necessary that the nature of the disputed property is mentioned as such, without any alteration, until the petition for injunction is considered and disposed of by the OP(Wakf)No.3795/2012 12 Tribunal in accordance with law and an order has to be passed accordingly.
24. Hence, the following order is passed:
i) The order under challenge is set aside.
ii) The matter is remanded to the learned
Tribunal for fresh consideration and
disposal in accordance with law as
indicated in this judgment.
iii) The injunction application will be
disposed of within a period of one
month from the date of receipt of a copy
of this judgment and the records.
iv) Till final disposal of the petition, the
construction and demolition work of the
mosque shall be kept in abeyance.
v) The parties are directed to appear
before the learned Tribunal on
19.12.2012.
vi) Registry will forward the records to the
Tribunal forthwith.
This petition is allowed.
Sd/-K.HEMA, JUDGE
Sd/-P.S.GOPINATHAN, JUDGE
lgk /True copy/ P.A to Judge