Kerala High Court
Alappuzha Muhiyideen Masjid ... vs Abdulkhader on 1 March, 2011
Author: Pius C. Kuriakose
Bench: R.Basant, K.Surendra Mohan, Pius C. Kuriakose
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 107 of 2006(I)
1. ALAPPUZHA MUHIYIDEEN MASJID ASSOCIATION,
... Petitioner
2. MR.B.A.RASHEED, PRESIDENT,
3. MR.N.MUHAMMED RAJA,
4. E.SULAIMAN, VICE PRESIDENT,
5. A.SHAHEED, JOINT SECRETARY,
6. MR.NOORUDHEEN, TREASURER,
7. MR.B.HAMZA, EXECUTIVE MEMBER,
8. MR.M.KABEER, EXECUTIVE MEMBER,
9. MR.B.A.RAHEEM, EXECUTIVE MEMBER,
10. S.SALY, EXECUTIVE MEMBER,
11. K.M.ABDUL KHADER,
12. A.K.AHAMMED KUNJU,
13. MR.A.NIZAR, EXECUTIVE MEMBER,
14. MR.EAHIYA, EXECUTIVE MEMBER,
15. MR.NOWSHAD, EXECUTIVE MEMBER,
Vs
1. ABDULKHADER, SON OF MAMMY,
... Respondent
2. EDATHIL BABU, SON OF ESAMILKUNJU,
3. A.SHERIEF, EXECUTIVE MEMBER,
4. RIYAS.M.O, (CHAIRMAN MAHAL SAMRAKSHANA
5. SHANAVAS (CONVENOR, MAHAL SAMRAKSHANA
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.M.D.SASIKUMARAN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :01/03/2011
O R D E R
PIUS C. KURIAKOSE, T.R. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ.
= = = = = = = = = = = = = = = = = = = = C.R.P. NO. 107 OF 2006 = = = = = = = = = = = = = DATED THIS, THE 30TH DAY OF NOVEMBER, 2010.
ORDER ON REFERENCE PIUS C. KURIAKOSE, J.
This Civil revision Petition is before us on the basis of a reference order passed by a learned Division Bench of this Court. A suit was filed by the respondents before the Wakf Tribunal for framing a scheme, alleging mismanagement on the part of the first revision petitioner, ie. Alappuzha Muhiyidheen Masjid Association. A preliminary objection was raised regarding the maintainability of the suit and the jurisdiction of the Tribunal. The Wakf Tribunal held that it has jurisdiction. The above finding of the Tribunal was challenged before this Court in C.R.P. Nos. 703 of 2002 and 704 of 2002. A Division Bench of this Court, by a common order dated 8.8.2005 held that the suit is perfectly maintainable before the Wakf Tribunal. It was so held relying on the judgment of a Division Bench of this Court in Pookoya Haji v. Cheriya Koya (2003(3) KLT 32). Pursuant to the above common order, the Tribunal proceeded with the enquiry in the O.A. After enquiry, a preliminary judgment for framing of a scheme and rendition of accounts was passed. The present CRP NO. 107/2006 2 Civil Revision Petition is filed by the first respondent Masjid Association challenging the above preliminary judgment and decree. When this Civil Revision Petition was taken up by the Division Bench for final hearing and disposal, an argument was raised on the basis of the judgment of the Supreme Court in M.P.Wakf Board v. Subhan Shah (2006(10) SCC 696) that the Wakf Tribunal lacks in inherent jurisdiction to pass the impugned preliminary judgment and decree. The above argument was answered by the respondents mainly on the basis of the common order in C.R.P. Nos. 703 of 2002 and 704 of 2002. The Division Bench did notice force in the argument advanced on behalf of the respondents that when the issue of jurisdiction was raised and decided in favour of the respondent by an order inter partes and when that order has become final, and observed that there is force in the contention of the respondent that the question has become final. Nevertheless the Division Bench did not become inclined to accept that argument as the Supreme Court had in Subhan Shah's case (supra) laid down that the Wakf Tribunal lacked in power to frame schemes for administration of wakfs. It was noticed by the Division Bench that the earlier finding in C.R.P. Nos. 703 of 2002 and 704 of 2002 rested mainly on the judgment of this Court in Pookoya Haji's case (supra) and that the same is in direct conflict with the judgment of the Supreme Court in CRP NO. 107/2006 3 Subhan Shah's case. According to the Division Bench, a question arose whether the judgment in Pookoya Haji's case requires reconsideration in the light of the decision of the Supreme Court in Subhan Shah's case. After saying so, the Division Bench would express the opinion that in the light of the Supreme Court judgment in Subhan Shah's case "a reconsideration of the matter is required" and accordingly, would refer the "matter" to a Full Bench for reconsideration.
2. We have heard the submissions of Sri. Azad Babu, learned counsel for the revision petitioner and those of Sri. Hariharaputhran, learned counsel for the respondent. Mr. Azad Babu, at the very outset, would refer to the recent judgment of the Supreme Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf (2010(3) KLT 862) and submit that the judgment of this Court in Pookoya Haji's case has been expressly overruled by the Supreme Court under that judgment. According to Mr. Babu, the Civil Revision Petition has been referred to this Court only for deciding the question as to whether the judgment in Pookoya Haji's case requires reconsideration in the light of Subhan Shah's case. Now that the judgment in Pookoya Haji's case has been expressly overruled by the Supreme Court, it is not necessary for this Court to answer the reference. The reference can be closed in the light of the judgment of the Supreme CRP NO. 107/2006 4 Court in Remesh Gobindram's case (supra).
3. Mr. Hariharaputhran, per contra, would submit that what has been referred to this Court is not just the question whether the judgment in Pookoya Haji's case requires reconsideration. According to the learned counsel, it is the entire matter which has been referred to this Court, particularly, the matter whether it is open to the revision petitioner to raise the contention that the Wakf Tribunal has jurisdiction over the O.A. The word "matter" has been carefully used by the Division Bench in its reference order, submitted the counsel. In this context, Mr. Hariharaputhran would refer to the observations of the Division Bench in para 2 of its order regarding the merit of the contention raised by the respondent based on the principles of res judicata. Strong reliance was placed by Mr. Hariharaputhran on the judgment of the Supreme Court in Ashok Kumar Srivastav v. National Insurance Company Ltd. (1998 (4) SCC 361). The learned counsel argued that principles of res judicata can be invoked not only in separate subsequent proceedings, but they will get attracted in subsequent stages of the same proceedings. Once an order made in the course of a proceeding has become final, it would be binding at the subsequent stages of the same proceedings, argued counsel.
4. In reply, Mr. Azad Babu would submit that the principles of res CRP NO. 107/2006 5 judicata cannot have any application in the present situation where it has been held by the Supreme Court that the Wakf Tribunal lacked inherent jurisdiction over the subject matter of the O.A. Under the statutory scheme, it is the Wakf Board alone which has jurisdiction to frame scheme for management of wakfs. In the instant case it is that jurisdiction which is exercised by the Wakf Tribunal. In the light of the judgment of the Supreme Court, it has to be found that the finding earlier entered by the Tribunal regarding the jurisdiction has to be ignored as one rendered without jurisdiction. Mr. Hariharaputhran would endeavor to meet the argument of Mr. Azad Babu by referring to Section 69(3) of the Wakf Act. According to the learned counsel, it cannot be submitted that the Wakf Tribunal lacked inherent jurisdiction over the subject matter. The Wakf Tribunal had appellate jurisdiction in the matter and appellate jurisdiction is only an extension of the original jurisdiction.
5. We have very anxiously considered the rival submissions addressed above. If the scope of the reference order before us were only to examine the question whether the judgment of the Division Bench in Pookoya Haji's case requires reconsideration, we could have straight away closed the reference, in the light of the judgment of the Supreme Court in Ramesh CRP NO. 107/2006 6 Gobindram's case. As rightly pointed out by Mr. Azad Babu, the judgment in Pookoya Haji's case stands expressly overruled by the Supreme Court. But we are inclined to accept the submission of Mr. Hariharaputhran that what has been referred to us is not just the question of reconsidering the judgment in Pookoya Haji's case, but also the matter of deciding the implications of the finding entered by this Court in C.R.P. Nos. 703 and 704 of 2002 that the Wakf Tribunal has got jurisdiction to entertain the O.A.. True, the principles of res judicata will apply not only in separate subsequent proceedings, that will get attracted in subsequent stages of the same proceedings as observed by the Supreme Court in Y.B. Patil v. Y.L. Patil (1976 (4) SCC 66 ) quoted with approval by the same Court in Ashok Kumar v. National Insurance Co. Ltd. (1994(4)SCC 361). Once an order made in the course of the proceedings becomes final, it will be binding on the subsequent stages of that proceeding. But then, in the present case, the decisions of the Supreme court in Subhan Shah's case as well as in Ramesh Gobindram's case are to the effect that under the scheme of the Wakf Act, it is the Wakf Board alone which has jurisdiction to entertain and grant reliefs of the nature sought for in the O.A. The power and jurisdiction to entertain proceedings seeking reliefs sought for in the O.A. and to grant such reliefs are within the exclusive domain of the Wakf Board. To our CRP NO. 107/2006 7 mind, the Wakf Tribunal lacked inherent jurisdiction over the O.A. The submission of Mr. Hariharaputhran referring to Section 69(3) can have only superficial attractiveness. The nature of the Wakf Tribunal's jurisdiction in scheme matters is appellate jurisdiction. The original authority is the Wakf Board and the Wakf Tribunal is the appellate authority. We have no difficulty to say that the appellate authority has only the appellate jurisdiction which is distinct from the original jurisdiction. The idea that original jurisdiction and appellate jurisdiction is one and the same offends the fundamental rules of judicial procedure. We hold without any hesitation that the Wakf Tribunal did not have any jurisdiction to entertain the O.A. The reference is answered accordingly. Place the Civil Revision Petition before appropriate Bench on Friday, the 3rd December, 2010.
PIUS C. KURIAKOSE, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) P.S. GOPINATHAN, (JUDGE) knc/-