M.M. Abdulla Kutty vs M. Abdulla Kutty Haji on 28 May, 2024

[Cites 37, Cited by 0]

Kerala High Court

M.M. Abdulla Kutty vs M. Abdulla Kutty Haji on 28 May, 2024

The petitioners, who are the plaintiffs in O.S.No.140 of 2021 on the file of the Waqf Tribunal, Kozhikode, have filed this revision petition, invoking the provisions under Section 83(9) of the Waqf Act, 1995 (for short, the Act), challenging an order dated 25.5.2002 of that Tribunal in I.A.No.67 of 2002 in O.S.No.140 of 2001. That interlocutory application was filed by defendants 1 to 4, 6 and 7, seeking an order to dismiss the suit as not maintainable, in view of the provisions under Section 87 of the Act. That suit was filed by the appellants for a permanent prohibitory injunction restraining the defendants and their men and agents from trespassing into the plaint schedule properties and the mosque situated therein, except for offering the prayers, and not to cause any obstruction for the management of the properties by the plaintiffs.

2. The defendants raised a contention that, the plaintiffs are not competent to file such a suit and get the relief. The plaintiffs have no manner of right over the plaint schedule properties and the mosque. In I.A.No.67 of 2002, defendants 1 to 4, 6 and 7 contended that the Waqf Tribunal has no jurisdiction to entertain a suit for permanent prohibitory injunction, as per the 5 CRP No.1215 of 2002 decision of the Madras High Court. They also contended that the plaintiffs have no cause of action against the defendants. Further, according to them, the properties are not registered as wakf before the Waqf Board. As per Section 87 of the Act, the suit is not maintainable.

3. After considering the rival contentions, the Wakf Tribunal, by an order dated 25.5.2002, allowed I.A.No.67 of 2002, holding that the suit was not maintainable before the Tribunal. Accordingly, the suit was also dismissed.

4. On 28.09.2004, when this revision petition came up for consideration, the learned Single Judge referred the matter to the Division Bench. The order of reference reads thus:

"Plaintiffs in O.S.No.140 of 2001 on the file of the Wakf Tribunal are the revision petitioners. The suit was laid for an injunction restraining the defendants from interfering with the administration of the Wakf and other consequential reliefs. The plaintiffs claimed themselves to be in the management of the Wakf as trustees. Earlier, a suit was instituted before the Munsiff-Magistrate's Court, Ponnani, as O.S.No.232 of 1998, and on the constitution of the Wakf Tribunal, the same stood transferred to the Wakf Tribunal. Before the Wakf Tribunal, the defendant raised a contention that the Tribunal has no jurisdiction to try the suit. They also raised a contention that the suit is not maintainable in view of the bar under Section 87 of the Act. 2. The Tribunal, by the impugned order dated 25th day of May, 2002, held that "the reliefs claimed are as 6 CRP No.1215 of 2002 trustees entitled to manage the properties and as such, it has no jurisdiction to protect the interest of a Trust or its Managing Committee". According to the Tribunal, any dispute regarding the Wakf property will not take in the dispute of a Trust or its Managing committee to administer the Wakf. The view taken by the Tribunal is contended to be contrary to the Division Bench decision reported in Pookoya Haji v. Cheriyakoya [2003 (3) KLT 32], wherein a Division Bench of this Court held that "the jurisdiction of the Tribunal is wide enough to determine any dispute or question or other matter relating to the wakf or wakf property". Going by the definition of the term 'Muthavalli' under Section 2(i) of the Wakf Act 1995, it is contended by the learned counsel appearing for the petitioner, 'Muthavalli' means any person, committee or Corporation for the time being managing or administering any wakf or wakf property and as such the right to administer the wakf by the trustee when it is threatened by any illegal act on the part of the defendant, certainly will fall within the ambit of Section 83 as held by this Court in the Division Bench decision cited supra. There is force in the contention. However, there is another question, that arises for consideration in this case, as to whether the bar under Section 87 of the Wakf Act with respect an unregistered wakf to institute and to continue any proceeding in court would apply to the Tribunal as well. In case, it is to be held that the expression "court" in Section 87 takes in Wakf Tribunal also, then, in view of the bar created under Section 87, the remedy to approach a civil court as well as the Wakf Tribunal will be barred. In this connection, while the legislature has used the term "Tribunal" in Section 83, the expression "Court" is used under Section 87 and again in Section 87, the word "civil court" is used. Thus, the words "court", "civil court" and "Tribunal" are separately used in 7 CRP No.1215 of 2002 different provisions. Further, the matters in respect of which the bar under Section 87 operates is wide enough to take in all those disputes which will fall under the amidst of Section 83 also individually arises for consideration. In view of the importance of the question, the matter may be considered by a Division Bench. Accordingly, the matter is referred to the Division Bench. Place before the Hon'ble Chief Justice for necessary orders."

5. Heard the learned counsel for the petitioners and also the learned Standing Counsel for the State Waqf Board.

6. In Madeena Masjid v. Kerala Jama Ath Islami Hind [2007 (3) KHC 170] the question which arose before a Division Bench of this Court was whether a suit or other legal proceedings could be maintained on behalf of an unregistered Waqf for enforcement of any of its rights before the Waqf Tribunal. The Division Bench noticed that, as far as the jurisdiction of the Tribunal is concerned, the law is well settled by a Bench decision in Pookoya Haji v. Cheriyakoya [2003 (3) KLT 32] that the words any dispute, question or other matters relating to Waqf or Waqf property under Section 85 of the Waqf Act are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act, but also any dispute, question or any other matter relating to any Waqf or Waqf property since those powers have also been conferred on 8 CRP No.1215 of 2002 the Tribunal by the Waqf Act itself. On examining the scheme of the Act and various provisions, the Division Bench found that the intention of the Legislature is to resolve all disputes by one machinery and forum provided in the Act itself, i.e., the Waqf Tribunal and not by the Civil Courts in the State.

7. In Madeena Masjid [2007 (3) KHC 170] the Division Bench noticed that under Section 83(2) of the Waqf Act, any mutawally or person interested in a Waqf or any person aggrieved by an order made under this Act is entitled to make an application to the Tribunal for the determination of any dispute, question or other matter relating to the Waqf. For thus approaching the Waqf Tribunal there is no precondition regarding the registration of the Wakf in question; the only jurisdictional factor is that the application by any of the three enumerated categories should be for the determination of any dispute, question or other matters relating to Waqf. A close look at Section 87 would indicate that notwithstanding anything contained in any other law for the time being in force (and notwithstanding anything contained in the Wakqf Act) no suit or appeal or other legal proceeding for the enforcement of any right on behalf of any Waqf shall be instituted or commenced or heard, tried or decided by any court, if the Waqf is not registered with the Waqf Board under Section 36 of the Act, 9 CRP No.1215 of 2002 after the commencement of the Waqf Act. The second limb of the provision clearly stipulates that no such suit, appeal or legal proceeding instituted prior to the commencement of the Act shall be continued by any court unless the Waqf has been registered in accordance with the provisions of this Act. The Division Bench noticed that the Waqf Act, 1995 has used both expressions, 'Court"

and "Tribunal" in many places. For example, under Section 90(1) it is provided that "In every suit or proceeding relating to a title or possession of a Waqf property or the right of Mutawalli or beneficiary, the court or tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding". If the provisions are given a purposive interpretation, it is clear that in respect of the rights of a Waqf, which are not enumerated under Section 83(1) and (2) of the Act, a suit is still maintainable before the civil court, in case the Waqf is registered. Whether registered or not, for determination of any dispute, question or any other matter relating to any Waqf or Waqf property, the exclusive jurisdiction is on the Waqf Tribunal constituted under Section 83 of the Act and not on the civil court. The bar under Section 87 applies only to the civil court and not to the Tribunal. A joint reading of Sections 83, 85 and 87 would clearly show that the civil court has no jurisdiction to adjudicate on any dispute, question or 10 CRP No.1215 of 2002 other matter relating to any Waqf and Waqf property or other matters which are to be determined by the Tribunal constituted under Section 83 of the Act. However, under Section 87, an additional privilege is granted to registered Waqfs to institute a suit or appeal or other legal proceedings before the civil court for the enforcement of any right on behalf of such Waqf which is not related to the Waqf.

8. We notice that the question of law referred for the consideration of the Division Bench has already been answered by the Division Bench in Madeena Masjid [2007 (3) KHC 170]. We also notice that Section 87 of the Act was omitted by the Waqf (Amendment Clause) Act, 2013, with effect from 01.11.2013.

9. The learned counsel for the petitioners and also the learned Standing Counsel for the State Waqf Board would point out the law laid down by the Apex Court in Board of Wakf, West Bengal v. Anis Fatma Begum [(2010) 14 SCC 588], which was reiterated in Rashid Wali Beg. v. Farid Pindari [(2022) 4 SCC 414]. Paragraphs 53 and 54 of that decision read thus:

"53. The various provisions of the Act which make a reference to the Tribunal and the subject-matter in relation to which such a reference is made are presented in a tabular column as follows:

11 CRP No.1215 of 2002

Sl. Provision of the Act Subject-matter Nos.

1. Section 32(3) Wherever the Waqf Board has settled any scheme of management or issued a direction, any person interested in the waqf or affected by the settlement of a scheme or directions may institute a suit before the Tribunal.

2. Section 33(4) A mutawalli or other person aggrieved by an order passed by the Chief Executive Officer under Section 33(3) directing such person to make payment of any amount misappropriated, misapplied or fraudulently retained and to restore the property of the waqf, may appeal to the Tribunal.

3 Section 35(1) The Tribunal is conferred with the power to order conditional attachment of any property, which, a mutawalli or any other person is likely to dispose of with intent to delay or defeat the execution of any order passed under Section 33.

4. Section 38(7) Any Executive Officer or a member of the staff who is aggrieved by an order of removal or dismissal passed by the Waqf Board under Section 38(6) has a right of appeal to the Tribunal

5. Section 39(3) Whenever a building or other place which was earlier used for religious purpose or Instruction or for charity, has ceased to be used for that purpose, the Board may make an application to the Tribunal for an order for recovery of possession.

6. Sections 40(2) and The decision of the Board on the (4) question whether a particular property is a waqf property or 12 CRP No.1215 of 2002 not or whether a waqf is a Sunni Waqf or Shia Waqf, is made subject to the decision of the Tribunal under sub-section (2).

Similarly, a direction issued by the Board to any Trust or Society under Section 40(3) to get registered, is made subject to the decision of the Tribunal under sub-section (4).

7. Section 48(2) Whenever a Board examines the Auditor's report and passes orders on the basis of the report, directing the recovery of any amount certified by the Auditor, the mutawalli or any other person aggrieved by such order may apply to the Tribunal.

8. Section 52(4) Wherever an order is passed by the Collector under Section 52(2) directing the person in possession of a property to deliver the property to the Waqf Board, on the hasis of a requisition made by the Board, the person aggrieved by such order may file an appeal to the Tribunal

9. Section 54(3) Whenever the Chief Executive Officer is satisfied that there is an encroachment on a waqf property, he may make an application to the Tribunal for the rernoval of such encroachment.

10. Section 64(4) A mutawalli removed from office for the reasons contained in clauses (c) to (f) of sub-section (1) is entitled to file an appeal to the Tribunal

11. Section 67(4) Any person aggrieved by an order passed by the Board superseding the Committee of Management may file an appeal to the Tribunal under the 1st 13 CRP No.1215 of 2002 proviso to sub-section (4) of Section 67.

12. Section 67(6) Whenever a member of a Committee of Management is removed by the Board, instead of exercising the option of superseding the Committee of Management, such removed member may file an appeal to the Tribunal under the 2nd proviso to sub- section (6) of Section 67.

13. Section 69(3) Whenever a scheme is framed by the Board for the administration of a waqf, which include a provision for the removal of the mutawalli and the appointment of his successor, a person aggrieved by the same may file an appeal to the Tribunal.

14. Section 73(3) Whenever a direction is issued by the Chief Executive Officer to any bank to pay out of the money belonging to the waqf, the contribution leviable under Section 72, the bank may file an appeal to the Tribunal

15. Sections 94(1) & (2) Whenever a mutawalli who is under an obligation to perform a pious, religious or charitable act fails to perform such act or whenever a mutawalli wilfully fails to discharge any other duties imposed on him under the waqf, an application could be made to the Tribunal for appropriate directions to the mutawalli. If it is a case covered by sub-section (1), the Tribunal may be moved by the Board. If it is a case covered by sub-

section (2) the Tribunal may be moved by the Board or any person interested in the waqf.

CRP No.1215 of 2002

54. In sum and substance, the Act makes a reference, to 3 types of remedies, namely, that of a suit, application or appeal before the Tribunal, in respect of the following matters:

54.1. Any question or dispute whether a property specified as waqf property in the list of waqfs is a waqf property or not [Sections 6(1) & 7(1)].

54.2. A question or dispute whether a waqf specified in the list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)].

54.3. Challenge to the settlement of a scheme for management of the waqf or any direction issued in relation to such management [Section 32(3)].

54.4. Challenge to an order for restitution/restoration of the property of the waqf or an order for payment to the waqf of any amount misappropriated or fraudulently retained by the mutawalli [Section 33(4)].

54.5. Conditional attachment of the property of a mutawalli or any other person [Section 35(1)].

54.6. Challenge to the removal or dismissal of an Executive Officer or member of the staff [Section 38(7)]. 54.7. Application by the Board, seeking an order for recovery of possession of a property earlier used for religious purpose but later ceased to be used as such [Section 39(3)].

54.8. Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)]. 54.9. Challenge to an order for recovery of money from the mutawalli, as certified by the Auditor [Section 48(2)]. 54.10. Challenge to an order for delivery of possession of a property issued by the Collector [Section 52(4)].

15 CRP No.1215 of 2002

54.11. Application by the Chief Executive Officer for the removal of encroachment and for delivery of possession of a waqf property [Section 54(3)].

54.12. Challenge to the removal of mutawalli from office [Section 64(4)].

54.13. Challenge to an order superseding the Committee of Management [Section 67(4)].

54.14. Challenge to the removal of a member of the Committee of Management [Section 67(6)].

54.15. Challenge to any scheme framed by the Board for the administration of waqf, containing a provision for the removal of the mutawalli and the appointment of the person next in hereditary succession [Section 69(3)]. 54.16. Challenge to an order for recovery of contribution payable by the waqf to the Board, from out of the monies lying in a bank [Section 73(3)].

54.17. Any dispute, question or other matter relating to a waqf [Section 83(1)].

54.18. Any dispute, question or other matter relating to a waqf property [Section 83(1)].

54.19. Eviction of a tenant or determination of the rights and obligations of lessor and lessee of waqf property [Section 83(1) after its amendment under Act 27 of 2013]. 54.20. Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 941]."

10. In view of the law laid down in the decision referred to supra, any dispute, question or other matter relating to a waqf or waqf property the exclusive jurisdiction is on the Waqf Tribunal constituted under Section 83 of the Act and not on the civil court.

16 CRP No.1215 of 2002

Therefore, we find that the Waqf Tribunal went wrong in holding that O.S.No.140 of 2001 filed by the petitioners is not maintainable before the Tribunal.

11. We notice that the suit filed by the petitioners-plaintiff, which is of the year 2001, is one for a permanent prohibitory injunction restraining the defendants and their men and agents from trespassing into the plaint schedule properties and the mosque situated therein, except for offering the prayers, and not to cause any obstruction to the management of the properties by the plaintiffs. Since it is a recurring cause of action, we deem it appropriate to set aside the impugned order of the Waqf Tribunal, whereby O.S.No.140 of 2001 stands dismissed as not maintainable, by permitting the petitioners-plaintiffs to file a fresh suit for a permanent prohibitory injunction, in case they have a case of trespass or obstruction from the side of the defendants in relation to the management of the Waqf or the Waqf property.

With the aforesaid observation, this CRP is disposed of.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

HARISANKAR V. MENON, JUDGE ln

Unlock Advanced Research with PRISMAI

Kerala High Court