IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 CRP.No. 499 of 2006(E) ---------------------- WOA.6/2001 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER(S): --------------------- PUTHUCODE JUMA-ATH COMMITTEE, PUTHUCODE ALATHUR TALUK, PALAKKAD, REPRESENTED BY ITS SECRETARY, V.A.AHAMMED. BY ADV. SRI.BABU KARUKAPADATH SRI.JAGAN GEORGE RESPONDENT(S): --------------- 1. T.S.ABDUL RAHIMAN @ THANGALKUTTY, S/O.SAIDALI, CHENNALAMKUNDU, P.O.THEKKEPOTTA, PALAKKAD. 2. A.S.MOHAMMED ALI, S/O.SYED MUHAMMED MASTER, KANNANORE PATTOLA, P.O.THEKKEPOTTA, PALAKKAD. 3. S.MOHAMMED HUSSAIN, S/O.LATE P.V.SAYED MOHAMMED, DARUSSALAM, P.O.THEKKEPOTTA, PALAKKAD. 4. U.SAYED MUHAMMED KURUKKAL, S/O.LATE T.V.UMMERKUTTY KURUKKAL, KOLATHUR HOUSE, P.O.THEKKEPOTTA, PALAKKAD. 5. KERALA WAKF BOARD REPRESENTED BY ITS SECRETARY, PARAMARA ROAD, ERNAKULAM NORTH, ERNAKULAM. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 SRI.P.K.MUHAMMED FOR R2, R3, R4 SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD FOR R5 SRI.E.M.KABEER FOR R1 SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2011, ALONG WITH CRP NO.644 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- C.R.P. Nos.499 of 2006 & 644 of 2010 ----------------------------------------------- Dated 2nd August, 2011. O R D E R Joseph, J. These two civil revision petitions are filed against the common order passed by the Wakf Tribunal, Ernakulam. C.R.P.644/2010 is filed against the common order passed in W.O.A.No.1/2001 and C.R.P.499/2006 is filed against the common order in W.O.A.No.6/2001. 2. The petitioner is a Jama Ath owning 16 cents of land. There is a mosque situated therein. There is an extensive area of 8 acres and 3 cents. It is known as Putharipadam Jama- ath and its burial ground(Mayyathankara). 3. The dispute essentially relates to the administration of the aforesaid 8 acres and 3 cents. The dispute had its origin in the year 1956. Apparently, it started when the Managing Committee of the petitioner auctioned about 2,000 numbers of teak wood trees standing in the compound of Putharipadam Mosque. Some of the inhabitants and beneficiaries of the said Mosque, it appears, objected to the auction by the petitioner committee. They approached the CRP Nos.499/06 & 644/10 2 Executive First Class Magistrate, Palakkad seeking an injunction under Section 144 of the Criminal Procedure Code, restraining the committee from cutting and removing the trees. Injunction was granted initially, but later on, it was vacated. Thereafter, O.S.213/57 was filed in the Munsiff Court, Alathur, seeking a declaration that Putharipadam Mosque and the compound referred to above belonged to and are in the joint possession of the four amsoms we have referred to earlier and that the petitioner has no exclusive right, title, possession or management of the Mosque. The suit was instituted in a representative capacity. The said suit was decreed. In First Appeal, however, the judgment of the trial court was reversed. Against the said judgment, S.A.268/71 was filed. We think, it will not be inappropriate to extract the whole judgment. “The second appeal arises out of a representative action instituted by the plaintiffs for a declaration that the plaint mosque and the land where it is situated belongs to the Muslim Community of four villages in and around that place and for a further declaration that the Pudukkoda Jumayath mosque of the defendants has no exclusive right of management of the mosque and its properties. While the trial court, when not granting the positive declaration in CRP Nos.499/06 & 644/10 3 favour of the plaintiffs, negatived the right of the defendants; in appeal the suit was dismissed. The plaintiffs have come up in second appeal. 2. The basic dispute turns on the right of management of the Juma Masjid. But stemming out of that is the further dispute regarding the right of the second defendant to cut and remove the timber trees in the compound of the mosque auctioned away by the committee of the defendants and purchased by the 2nd defendant. There had been criminal proceedings antecedent to the civil suit and the civil case itself has had fluctuating fortunes in the two courts below. But it looks as if the primary authority competent to deal with this matter is the Kerala Wakf Board. Sec.15 of the Wakf Act, 1954, vests considerable powers of superintendence over all wakfs in the State in the Board. While comprehensive powers are conferred under Sec.15(1) to control the administration of Wakfs. Sub-Section 2, particularly sub- clauses (c), (d) and (o) enable the Wakf Board to issue directions regarding the day-to-day administration and the disposal of the income. That is why whenever a suit is instituted relating to the title of Wakf properties the Court has been enjoined to issue notice to the Board. Notice has been given to the Board in this Court and counsel for the Board has entered appearance. In these circumstances, the most appropriate order to be passed in this case would be to direct the Board to decide the right of management and to settle the manner in which the management of the CRP Nos.499/06 & 644/10 4 Wakf should take place. Wide powers are already vested in the Board ever to give interim directions. I mention this because trees have been auctioned and some of them have been cut and removed. I have granted an injunction against the defendants committing waste. But then the contention of the defendant is that unless trees are cut and removed they would be wasted and that the cutting and removal themselves do not amount to an act of waste. I think it proper to direct the Wakf Board to issue such interim directions as it thinks fit even in regard to the timber trees, if moved in that behalf by either party to this case. 3. In the result, I think it unnecessary to decide the dispute regarding the right of management as between the plaintiff and the defendants in this appeal. On the other hand, both sides have agreed that now that the Wakf Board has entered appearance the Board may be directed, in exercise of its functions under Sec.15 to decide the dispute regarding the management in this case and other allied matters. Apart from directing the Board to decide the right of management and to make provision for the proper administration of the Wakf, I also direct the Board to issue such interim directions as are necessary in its opinion to promote the interests of the Wakf, with special reference to the timber trees, if appropriately moved by either party, and of course, after hearing both sides. Subject to the above direction, I dismiss the appeal. There will be no order as to costs in any of the Courts below. CRP Nos.499/06 & 644/10 5 Carbon copies will be given to both sides and a copy of this judgment will be sent to the Wakf Board. 4. Thereafter, the matter engaged the attention of Kerala Wakf Board. Thereupon, a petition was filed by the appellants in the Second Appeal and two others, praying that a scheme of management may be settled for Putharipadam Mosque and its properties. The Wakf Board initially passed order dated 17.2.1973. The Board found that the petitioner Mosque and Putharipadam Mosque should be treated as independent mahals with the exception that Puthukode mahal will have the right to bury the dead bodies in the Putharipadam Mosque as they were doing till then. The Board further found that the Puthucode Mosque will continue to have that right and the Putharipadam Mosque will not be entitled to object to the same in any manner. It was found that Puthucode Mosque has a scheme which will continue to be in force as far as that mahal is concerned. It was found that a scheme will have to be settled for the administration of the Putharipadam Mosque and its properties and a draft scheme was directed to CRP Nos.499/06 & 644/10 6 be published. The said order was however, challenged in two Writ Petitions (O.P.Nos.1452 and 2048 of 1973). O.P.1452/73 was filed by the respondents in the petition No.5/1971 and O.P.2048/73 was filed by the petitioners in the petition before the Wakf Board against the respondents impleading the Wakf Board as respondent No.6 therein. The said Writ Petitions were disposed of by a common judgment. Therein, this Court referred to the judgment of the learned Single Judge in the Second Appeal. The court found that there was no scope for ambiguity in the decision of the learned Single Judge in the Second Appeal. It was held as follows : “4. I do not think that there is any scope for ambiguity in the decision of my learned brother Krishna Iyer J. The dispute between the parties was all along one of right of management of the Puthirippadom mosque. Whether such right should be recognised in the Puthucode mosque alone or in the people of the four mahals inclusive of the Puthucode mahal was really in controversy. What this Court directed was to settle and determine the right of management and settle the manner in which the administration was to be conducted. The settlement of the manner cannot be done without determining the right to such management. Therefore in CRP Nos.499/06 & 644/10 7 terms of the decision of this Court the Board was called upon to decide: (i) Whether the plea of the 4 mahals that they had joint right to manage the Puthirippadom mosque should succeed or whether the right of management was to be found to be exclusively in one of them, namely, the Puthucode mosque. (ii) How the further administration was to be done had to be settled in the light of such decision? (iii) Any incidental and allied matters may have to be decided as the circumstances may necessitate. The parties actually wanted settlement of a scheme and since that was within the powers of the Board it could have granted it as a consequential relief. and (iv) Interim directions as to the disposal or removal of the teak wood trees and timber and such other matters that may be called for in order to safeguard the interests of the Puthirippadom mosque during the pendency of the dispute. 5. In the decision taken by the Board after the judgment of this Court there is no finding as to the right of management. There is no finding even that the members of the three mahals other than the Puthucode mahal were exercising acts of management at any time. A positive finding as to who is entitled to the right of management whether it is the Puthucode mahal alone or whether the mosques in the other three mahals CRP Nos.499/06 & 644/10 8 representing the Muslim population in those mahals was necessary. The Board seems to proceed on the basis that the dead from all the four mahals are being buried in the Puthirippadom burial ground. May be or may not be. I say so becuase, on this, at the hearing, there is no agreement between counsel on both sides. Whatever it be, even assuming that this is the case this will not determine the right of management. Now will it obviate the necessity of a finding as to who is entitled to manage. Hence there is no determination of the question which was directed to be determined in exercise of the power under Section 15 of the Wakf Act by the Board. 7. In the connected original petition, O.P.No.2048 of 1973 the challenge is to the same order by the representatives of the three other mahals who claim that the order is bad for another reason, as to the disposal of the amount in deposit realised as the result of the sale of the teak wood trees. In regard to this the Wakf Board directed that 60% has to be spent for the purpose of the Puthirippadom mosque and 40% for the Puthucode mosque, for it is observed that both the mosques required renovation. May be that is a fact. But one fails to see how the funds of the Puthirippadom mosque can be utilised for the Puthucode mosque even assuming that Muthawallis of the Puthirippadom mosque are the Muthawallis of the Puthucode mosque also. The question is one of right of management of the Puthirippadom mosque. I am not finally finding or pronouncing on this CRP Nos.499/06 & 644/10 9 matter. The direction under challenge has necessarily to be set aside and therefore the main order has also to be set aside. If the Puthucode mosque has only the right of management of the Puthirippadom mosque, it goes without saying that such right cannot enable to seek diversion of a part or whole of the funds of the Puthirippadom mosque. That must be made available for the Puthirippadom mosque and for that mosque alone. To that extent the O.P.No.2048 of 1973 must be sustained. Any way I am not quashing the direction separately, for I am quashing the entire order. 8. I make it clear that I interfere only because the relevant question is not determined. Otherwise the Board's decision would have necessarily been respected for, on facts, the Wakf Board must be the ultimate authority to decide. No interference by this Court as if sitting to appreciate the correctness of the decision would be warranted. Ext.P6 in O.P. No.1452 of 1973 is hence quashed. The Board will go into the matter afresh and decide on the materials available before it as to whether the right of management is in the Muslim residents of the four Mahals or whether it is exclusively that of the Puthucode mosque. Based upon such decision consequential matters such as settlement of administration including settlement of a scheme will be made. It goes without saying that interim directions as to the utilisation of the funds now in deposit for protecting the interests of the Puthirippadom mosque CRP Nos.499/06 & 644/10 10 may be made by the Wakf Board in case the parties move the Board for that purpose. It is agreed that there is no more material to be adduced as evidence in the case.” 5. It is pursuant to the same that the Wakf Board proceeded to pass order dated 9.4.1977. We will refer back to the said order as much turns on its effect and whether it continues to govern the parties as against the subsequent order which has been passed by the Board on 15.3.1997. 6. The order of the Wakf Board dated 9.4.1977, it appears, was subject matter of challenge in O.P.2864/77. The said Writ Petition was filed by the President of the Puthucode Jumayath Mosque and certain others. The court interalia held as follows : “2. Pursuant to the direction as aforesaid given by this Court as per Ext.P4 judgment, the Board passed Ext.P5 order dt.9.4.1977, which is impugned. There is a definite finding entered in that order by he 6th respondent - Board. In Ext.P5 order the 6th respondent- Board taking into account the evidence furnished by the revenue records and other documentary evidence came to the conclusion that “the first question formulated by CRP Nos.499/06 & 644/10 11 the High Court, viz., whether the plea of the four Mahals that they have joint right to manage the Puthiripadam Mosque should succeed has to be answered in their favour. It cannot be said that there is no determination of the question as was the case on the earlier occasion when Ext.P3 order was examined by this Court. 3. I am not prepared to accept the contention on behalf of the petitioners that by Ext.P4 this Court directed not to consider the evidence furnished by the fact that the property was used as a burial ground by all the 4 mahals, for this Court only said that assuming that it is so that will not determine the right of the Management. The dispute is more than 20 years old. I do not think that I am called upon to reappraise or reappreciate the evidence and come to a different conclusion. It is only necessary to point out that the decision as aforesaid by the 6th respondent cannot be said to be not supported by any material at all, nor am I prepared to say that the order is vitiated by errors of law apparent on the face of the record.” Even though a Writ Appeal was filed as W.A.345/77, the same was unsuccessful. The judgment in the Writ Appeal is dated 16.1.1978. Thereafter, O.S.253/1978 was filed before the Sub Court, palakkad. The suit was filed by the persons who filed O.P.2864/77. Therein, the plaintiffs sought for setting aside the CRP Nos.499/06 & 644/10 12 order dated 9.4.1977. The suit was dismissed, holding that it is not maintainable. In appeal (A.S.339/1981) this court confirmed the said finding. This court took the view that against the determination in respect of the matters falling under Section 15 of the erstwhile Wakf Act(the corresponding provision being contained in Section 32 in the present Wakf Act), the right was to challenge it before the Tribunal. The learned Judge interalia held as follows : “From Ext.A1 it is clear that no scheme is settled. Despite the fact that Ext.A1 stated the Puthiripadam Mosque alone will have the right to utilise the amount in deposit for its purpose; it stated the amounts in deposit and future income has to be utilised as per the decision of the committee to be constituted under Scheme. That means, the manner of utilization is to be decided by the Committee. Since the direction as to the utilisation of income has nexus with the constitution of the Committee as per the scheme, and the scheme, as noted, is yet to be settled, Ext.A1 in the circumstance being preliminary to settlement of scheme cannot be challenged under Section 15(3) of the Act. In this connection it is necessary to note that, the power of the Board to issue interim directions pending the proceedings is noticed in Exts.B1 and B2. In the CRP Nos.499/06 & 644/10 13 circumstance when the settlement of a scheme is pending under Section 15 of the Act a suit of this nature is not maintainable under Section 15(3) of the Act. In the decision in Kerala Wakf Board's case (1987(1) KLT 313) arose under Section 42 of the Act. The decision has no application to the facts of this case. The decision in Isabella Johnson's case (AIR 1991 SC 993) held that a court which has no jurisdiction cannot be conferred with jurisdiction by applying the principle of res judicata. As has noted, the Board has jurisdiction to determine matters that fall under Section 15 of the Act; then a challenge against such determination on any ground is possible only as provided under Section 15(3) of the Act. The said decision also has no application in the present circumstances. The suit is not maintainable. Thus it is clear that the appeal is liable to be dismissed.” The said judgment was pronounced on 10.10.1991. Thus, much time was spent, challenging the order dated 9.4.1977, both before the High Court and civil court, as already discussed. In fact, in the order dated 9.4.1977, the decision as such is contained in the following passage : “In the result, in modification of this Board's earlier order, it is decided that the Puthiripadam Moque and its properties are a separate entity to be managed CRP Nos.499/06 & 644/10 14 independently by constituting a committee to be elected from among the Muslim inhabitants of the four amsoms mentioned above under the scheme to be finalised as aforesaid and that the Puthucode Mahal as such shall not have any right of management of the said wakf. The right to have the burial of dead bodies from all the four Mahals will continue as herebefore without resistance. The Puthiripadam Mosque will alone have the right to have the amounts in deposit utilised for its purpose as also for improving upon its properties subject to sanction to be obtained in that behalf from the Wakf Board. The parties are directed to bear their costs.” 7. The Board had in fact in the said order directed that a draft scheme will be prepared and duly published within a month of the order. The scheme was to embrace the beneficiaries of the wakf and its properties consisting of Muslims in all the four amsoms. The right of management was to be vested in a committee to be elected from among the members of the four amsoms. The draft scheme was to be finalised after hearing the objections, if any, from the members of the four amsoms concerned. Apparently, in view of the litigations spread over both in the civil court and the writ court, CRP Nos.499/06 & 644/10 15 nothing much transpired immediately. After nearly two decades, the Wakf Board passed yet another order dated 15.3.1997, which is the cause of the present lis. The said order reads as follows : “Various evidences and enquiry report reveals that the Puthiripadam Mayyathankara was under the jurisdiction and control of Pudukkod Jama-ath for more than three hundred years. The Pudukkod Jama-ath are having all the records even prior to the case which arose during the year 1956. The persons claiming under the Puthiripadam Jama-ath are not seen in the picture even during the dispute during the year 1952 and 1956. They have came to the picture only during the year 1971 by impleading in the proceedings. It shows that during the yer 1956 and 1957 while the case was going on, the control and administration of the Puthiripadam Mayyathankara was under the Pudukode Jama-ath. Even though the Puthiripadam Jama-ath have remitted the amount for some time, there is a specific order dtd.14.6.1994 of the Tahsildar permitting the Pudukkode Jama-ath to remit the land tax with regard to the Puthirippadam Mayyathamkara. Out of the 14 plaintiffs in the suit during the year 1956 only one person is remaining alive, Navoor Meera Rawther. One of the parties in the proceedings the people of Marad Theruvu had withdrawn from the case CRP Nos.499/06 & 644/10 16 upholding the right of the management of Pudukod Jama- ath. Besides, the Pudukkod Jama-ath is keeping the accounts with regard to the plantation of Teak trees in the Mayyathamkara and they are also having the accounts in connection with the property. On an over all assessment of the records and evidences in this case, it is revealed that the Puthirippadam Mayyathamkara Pally is under the Pudukkod Mahal. However, Juma prayers are going on in the Puthirippadam Mosque. The neighbouring Muslim inhabitants are participating in the Juma prayers and it is going on un-interruptedly. There is a dispute as to whether the Juma prayers in the Puthirippadam Juma-ath Palli, had been started with the prior permission of the Pudukkod Juma-ath. The said dispute is not relevant in the case. The Pudukkod Juma-ath will be continued to be in the possession and control of the Mayyathamkara on condition that representation will be given in the Pudukkod Mahal committee for the Muslim inhabitants of nearby localities. The administration and control of the Puthirippadam Juma-ath Mosque will be based on the Committee of the Puthirippadam Jama-ath independently and they will administer in the mahal independently and the Muslim inhabitants of the mahal will have the right for burial at the Mayyathamkara. For the purpose of implementation of the above decision, both the parties CRP Nos.499/06 & 644/10 17 are directed to submit a draft scheme for the effective implementation of the order while admitting the draft scheme. Both parties are directed to consider the interest of the Muslim inhabitants of the above locality whether or not they are having separate mosque or juma prayers.” 8. There is no dispute that as against the said order, O.P.No.14040/1997 was filed by two persons, who, it appears, had got themselves impleaded in the proceedings before the Wakf Board. The Writ Petition was against the said order. The prayers in the Writ Petition, and the judgment read as follows : Prayers : “(i) Call for the records leading to Ext.P7 and quash