IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 CRP.No. 613 of 2010() ------------------------------- OA.11/2008 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER(S): IST RESPONDENT/PETITIONER ------------------------------------------------------------------------------ A.P.A.RASHEED, S/O.OLIYATHU USMAN, SECRETARY, MUSLIM ANATHA MEYYATH PARIPALANA SANGHOM, PILASSERY, THALASSERRY. BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.ISHA M. RESPONDENT(S): APPELLANT & WAKF BOARD -------------------------------------------------------------------- 1. N.N.KHALID HAJI, S/O.KUNHALI HAJI, SECRETARY, THALASSERRY PAZHAYA HAMA-ATH PARIPALANA SANGHOM, THALASSERRY. 2. KERALA WAKF BOARD, REP.BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, KOCHI-17. R1 BY ADVS.SRI.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, SRI.JAGAN GEORGE, SRI.K.A.NOUSHAD, SRI.P.G.PRAMOD. ADV. BABU KARUKAPADATH FOR CAVEATOR R2 BY ADV. SRI.A.A.ABUL HASSAN, SC, WAKF BOARD THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2011, ALONG WITH CRP NO. 614 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- C.R.P. Nos.613 & 614 of 2010-E ------------------------------------------------- Dated this the 30th day of June, 2011 ORDER Basant,J. CR Is the Wakf Board acting under Section 32 of the Wakf Act an adjudicatory body? Are the powers under Order 39 C.P.C available to the Wakf Board when it acts under Section 32? Can the Wakf Board pass interim orders while acting in exercise of its powers under Section 32? What are the powers of the Board when it acts under Section 32? These questions are raised for consideration before us. 2. These revision petitions are directed against a common order passed by the Wakf Tribunal. Proceedings were initiated before the Wakf Tribunal evidently under Sec.83(2) of the Wakf Act challenging two separate orders passed by the Wakf Board. Both are described to be interim orders passed by the Wakf Board in an enquiry pending before it as E4-8360/07. The first impugned order dated 26/4/08 restrains the respondents herein from conducting an election C.R.P. Nos.613 & 614 of 2010-E : 2 : to the Managing Committee until further orders. The second impugned order restrains the 1st respondent herein from convening a General Body Meeting on 22/6/08 and taking any decision in the said General Body Meeting. The Wakf Tribunal by the impugned orders set aside the orders. 3. A brief reference to vital facts may be essential. Thalassery Pazhaya Juma-th Palli is a very old Muslim Mosque in Thalassery. There is virtually no dispute that it is a Wakf. The Wakf owns properties. It is submitted at the Bar that the Wakf is of ancient origin and the affairs of the Wakf were being managed from time to time by responsible Muthavallies. While so, a society was formed under the Societies Registration Act. The Memorandum of Association and bye- laws of the society clearly reveal that the society was formed for the purpose of duly administrating the Wakf. There is virtually no dispute before us that the Managing Committee of the society is now the Muthavaly in respect of the Wakf. 4. Enquiry under Sec.70 of the Wakf Act is pending before the Wakf Board as E4-8360/07. We are not apprised of the details of the said enquiry. Suffice it to say that an C.R.P. Nos.613 & 614 of 2010-E : 3 : enquiry under Sec.70 of the Wakf Act is pending. It relates to the administration of the Wakf. It appears that a grievance was raised that persons eligible for membership in the society which is managing the Wakf are not being granted membership. The petitioner herein claims to be a person professing Islam who hails from the locality. He has a permanent residence within the Mahal. According to him, he and many others like him are eligible for membership going by the bye-laws of the society. They have not been given membership. Keeping all of them away from the society, the society was planning to conduct an election. The common petitioner herein felt aggrieved by that conduct and therefore approached the Wakf Board with applications. The short grievance of the petitioner is that persons eligible for membership are not being admitted to membership and the society is arbitrarily proceeding to conduct an election to the governing body. It was hence that an order - described to be an interim order was sought by the petitioner initially by filing I.A.No.61/08. In that application numbered as an I.A. in the pending proceedings under Sec.70, the first impugned order C.R.P. Nos.613 & 614 of 2010-E : 4 : was passed restraining the 1st respondent from conducting election until further orders. While that order was in force, an attempt was made to convene a General Body Meeting and against that, I.A.No.119/08 was filed by the very same petitioner. That petition again was described as an I.A. in the main proceedings and the second impugned order restraining the first defendant from convening a General Body meeting to be held on 22/6/08 was passed. 5. The first respondent promptly approached the Wakf Tribunal with O.A.Nos.11 and 12 of 2008 challenging these impugned orders. The Wakf Tribunal by the impugned common order took the view that the Wakf Board has no powers to pass any interim orders. It was further held that, at any rate, the impugned directions could not have been issued to a society registered under the Societies Registration Act. 6. Arguments have been advanced by the learned counsel for the petitioner, learned counsel for the first respondent and learned standing counsel for the second respondent. On the arguments advanced, the following C.R.P. Nos.613 & 614 of 2010-E : 5 : points arise for determination: i. Whether the Wakf Board has powers to pass interim orders. ii. Whether such interim orders could be issued to the society like the first respondent registered under the Societies Registration Act. iii. Whether the nature of directions issued – not to conduct election and not to hold a general body meeting, are within the jurisdictional competence of the Wakf Board under Section 32 of the Wakf Act. iv Whether the impugned orders are justifiable on merits. 7. Before the Wakf Tribunal, an argument, it appears, was advanced that in passing the impugned orders, the Wakf Board has powers under Order 39 of the Code of Civil Procedure. The Wakf Tribunal negatived that contention. Before us, initially there was an attempt to support the theory that the Wakf Board is an adjudicatory C.R.P. Nos.613 & 614 of 2010-E : 6 : authority and that in exercise of such powers of adjudication, interim orders can also be passed to make the initial conferment of substantive powers real and meaningful. 8. In the course of arguments, after discussions, it is not now seriously urged that the Wakf Board exercising powers under Section 32 of the Wakf Act must be reckoned as an adjudicatory authority. We are hence not persuaded to go into the question whether the Wakf Board reckoned as an adjudicatory authority has jurisdictional competence to issue the interim orders. 9. In this context, we take note of the provisions of Section 32 of the Wakf Act as also Sections 70 and 71 of the Wakf Act. We need not strain very much to conclude that the powers under Section 32 of the wakf Act are in the nature of powers of superintendence to ensure that the Wakfs under the Board are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for purposes for which such Wakfs are created and intended. 10. There can thus be no dispute that the powers C.R.P. Nos.613 & 614 of 2010-E : 7 : under Section 32 are in the nature of powers of superintendence and such powers of superintendence are to be invoked to ensure that interalia the Wakfs are “properly maintained, controlled and administered”. The powers under Section 32 cannot hence be described to be adjudicatory powers. The nature of the body that is Wakf Board constituted under Section 14 of the Act must also convey eloquently, that read along with Section 32, the powers are not adjudicatory in nature. It is true that Sections 70 and 72 deal with the manner in which the enquiry relating to administration of Wakf is to be conducted and the nature of the powers of the Board while conducting such enquiry. Our attention has been drawn to Section 71(2) which clothes the Wakf Board with certain powers of civil court for the purpose of enforcing attendance of witnesses and production of documents. At any rate, there is nothing in Sections 14, 32, 70 or 71 which can persuade us to conclude that the powers under Section 32 are adjudicatory in nature or that any dispute/lis between the parties can be resolved by the Wakf Board by C.R.P. Nos.613 & 614 of 2010-E : 8 : resorting to such powers. In this context, the nature of relief which a person can claim under Section 83 before the Wakf Tribunal against an order passed by the Wakf Board is also of crucial relevance. What is important is that relief is available to an aggrieved person not in the form of an appeal. But option is given to challenge the order by filing an application under Section 83(2). We are unable to find any incidents of the power of an adjudicatory authority in the powers of the Board under Section 32 of the Act. 11. But it cannot be lost sight of that, basically the powers under Section 32 are in the nature of the powers of superintendence in administration. A reading of Section 32 clearly shows that Section 32 does not make any distinction between final orders and interim orders. When the situation demands, Section 32 certainly empowers the Wakf Board to pass interim orders as well as final orders. There is nothing in the language of Section 32 which can limit the powers of the Board to pass only final orders and not interim orders. The sweep of the powers under Section 32(1) as C.R.P. Nos.613 & 614 of 2010-E : 9 : further explained by Section 32(2), according to us, can leave no semblance of doubt in our minds that interim as well as final directions can be issued by the Board under Section 32. The first contention raised that the Board does not have competence to issue interim orders like the one issued in the impugned orders cannot therefore succeed. This point is answered against the first respondent. 12. We then come to the question as to what is the nature and quality of the jurisdiction under Section 32. What sort of orders can be passed and what sort of orders cannot be passed under Section 32. It will be apposite in this context to extract Section 32(1) as well as Section 32(2)( c) and (o). We extract Sections 32 (1), 32 (2)( c) and (o). “32. Powers and function of the Board: (1) Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the C.R.P. Nos.613 & 614 of 2010-E : 10 : objects and for the purposes for which such Wakfs were created or intended: Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the Wakf, the purposes of the Wakf and any usage or custom of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs. (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be- (a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every Wakf; (b) to ensure that the income and other property of Wakfs are applied to the objects and for the purposes for which such Wakfs were intended or created; (c) to give directions for the administration of Wakfs; (d) to settle schemes of management for a Wakf: Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; (e) to direct- (i) the utilisation of the surplus income of a Wakf consistent with the objects of Wakf; (ii) in what manner the income of a Wakf, C.R.P. Nos.613 & 614 of 2010-E : 11 : the objects of which are not evident from any written instrument, shall be utilized; (iii) in any case where any object of Wakf has ceased to exists or has become incapable of achievement, that so much of the income of the Wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim Community: Provided that no direction shall be given under this Clause without giving the parties affected, an opportunity of being heard. Explanation:- For the purposes of this clause, the powers of the Board shall be exercised- (i) in the case of a Sunni Wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia Wakf, by the Shia members of the Board only; Provided that where having regard to the number of the Sunni or Shia members in the board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause; (f) to scrutinise and approve the budgets submitted by mutawallis and to arrange for auditing of account of Wakfs: (g) to appoint and remove mutawallis in C.R.P. Nos.613 & 614 of 2010-E : 12 : accordance with the provisions of this Act; (h) to take measures for the recovery of lost properties of any Wakf; (i) to institute and defend suits and proceedings relating to Wakfs; (j) to sanction any transfer of immovable property of a Wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act: Provided that no such sanction shall be given unless at atleast two-thirds of the members of the Board vote in favour of such transaction; (k) to administer the Wakf Fund; (l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the Wakf property as the Board may, from time to time, require; (m) to inspect, or cause inspection of, Wakf properties, accounts, records or deeds and documents relating thereto; (n) to investigate and determine the nature and extent of Wakf and Wakf property, and to cause, whenever necessary, a survey of such Wakf property; (o) generally do all such acts as may be necessary for the control, maintenance and administration of Wakfs”. 13. We repeat that the powers under Section 32 are C.R.P. Nos.613 & 614 of 2010-E : 13 : powers of superintendence. Such powers are to be exercised primarily to ensure that the Wakfs are properly maintained, controlled and administered. This is very clear from Section 32(1). Section 32(2)(c) clearly suggests that the Wakf Board has powers to give directions for the administration of the Wakf. Sub clause (o) shows that the Board has powers to do such acts as may be necessary for the control, maintenance and administration of the Wakf. 14. A contention is raised that the society is not the Wakf. It only administers the Wakf. A perusal of the Memorandum of Association and bye laws of the society reveals that primarily the society was formed for the maintenance, management and administration of the Wakf. Its very name is Thalassery Pazhaya Jamaath Pally Paripalana Sangam. The aims and objects available in the Memorandum of Association as also Clause -2 of the byelaws clearly reveal that the primary purpose of the society is to maintain, manage and administer the Wakf. The Wakf has to be properly nurtured. Its purposes have to be achieved and with the excess funds generated, certain C.R.P. Nos.613 & 614 of 2010-E : 14 : activities are also prescribed. The learned counsel for the first respondent attempts to advance an argument that the purpose of the society is not merely administration of the Wakf and it has other purposes also. This contention must fall to the ground when we carefully go through the aims and objects of the society as revealed from the Memorandum of Association and bye laws. The mere fact that out of the excess funds generated, certain other incidental activities like running a workshop (thozhilsala), library etc is also authorised in the Memorandum and Byelaws, cannot in any way detract against the irrefutable interference that the purpose of the society that is only to maintain, manage and administer the Wakf. The learned counsel for the first respondent argues that even assuming that Section 32 would clothe the Board with powers to issue such directions that are necessary for the proper maintenance, control and administration of the Wakf, such powers cannot extend to issue of directions regarding the manner of functioning of the society, that is the mutawalli in this case. The counsel advances an argument that the Societies Registration Act is C.R.P. Nos.613 & 614 of 2010-E : 15 : a self contained Code in itself and the Wakf Board invoking its powers under Section 32 cannot interfere with the administration of the society registered under the Societies Registration Act. 15. We find this attempt to distinguish between the powers of the Board to issue directions for administration of the Wakf and powers to issue directions in administration of the Society/mutawalli to be artificial. We have already taken note of the fact that the society has come into existence only for the purpose of maintaining, managing and administering the Wakf. In that situation, a direction under Section 32 can certainly carry within its sweep, directions regarding proper conduct of the society vis a vis the affairs of the Wakf. We find no semblance of doubt that such direction can be issued to the society also in respect of administration of the Wakf. Merely because the society is a body corporate having a seal and perpetual succession, it cannot contend and it cannot be held that the powers under Section 32 of the Wakf Act will not extend to the affairs of a society constituted primarily or solely for the C.R.P. Nos.613 & 614 of 2010-E : 16 : purpose of administration of the Wakf. It is also important to note that no specific statutory provision is available under the Societies Registration Act to deal with the specific situation that is complained of in the instant case. The grievance is that members eligible for membership are not being admitted to membership and that election is proposed to be conducted without and before such persons are admitted to membership. The Societies Registration Act does not provide for any relief. The aggrieved party will necessarily have to go to a civil court with such a grievance, if it were held that the Wakf Board has no jurisdiction. 16. In these circumstances, we are of the opinion that the language of Sections 32(1) and (2) must persuade us to hold that powers to issue directions to the Wakf would include the power to issue directions to the society administering the Wakf also, if there be a need to issue any such directions. The status of the muttawalli as a society/committee registered under the Societies Registration Act cannot in these circumstances affect the powers of the C.R.P. Nos.613 & 614 of 2010-E : 17 : Board under Section 32. The second question is thus answered in favour of the petitioner. 17. Thirdly it is contended that the powers under Section 32 cannot clothe the Board with powers to issue directions as to when the General Body can be convened or when an election is to be held. The counsel’s argument is that the Wakf Board cannot question the constitution of the body administering the Wakf. 18. The learned counsel for the 1st respondent relying on the decision in Adam Aboobacker Sait v. Kerala Wakf Board (1982 KLT 823) and A.S.H. Sait Dharmasthapanam v. Kerala Wakf Board (1976 KLT SN 19 Case No.43) and Kerala Wakf Board v. Alam A. Sait (1987 (1) KLT 313), contends that the scope of directions to be issued under Section 32 is very limited. The learned counsel for the petitioner and the 2nd respondent, on the contrary, contend that the powers of the Board are plenary relying on Basheer Haji v. Kerala Wakf Board (2007 (1) KLT 1039). The question to be considered hence is about the scope of the jurisdiction of the Wakf Board to issue directions under C.R.P. Nos.613 & 614 of 2010-E : 18 : Section 32 of the Act. 19. To answer this question, we are of the opinion that the specific issue raised will have to be considered. We do not want to lay down any general proposition that directions under Section 32 can be issued in respect of all matters relating to the societies in all cases. The learned counsel points out that several industrial establishments have set apart certain properties to be used as mosques. The internal arrangements made by such industrial houses about the manner in which such land is to be administered etc cannot be interfered with by the Wakf Board in exercise of its powers under Section 32, contends the learned counsel. We need only mention that we have to specifically look at the nature of the directions and the objects which the directions have to achieve before deciding whether a particular direction issued by the Board under Section 32 is justified or not. 20. In the instant case as stated earlier, it is an ancient Wakf. Documents by which initial dedication has been made have not been laid before us. It is not disputed C.R.P. Nos.613 & 614 of 2010-E : 19 : that Wakf exists and is now being administered by the society incorporated under the Memorandum of Association and bye laws. All muslims of the mahal are entitled to participate in the administration of the Wakf, it is urged. They have the right to elect members to the committee. The precise grievance raised is that eligible members are being denied membership in the society thereby frustrating the rights of Muslims in the mahal who are entitled to administer the Wakf as a member of the society under the Memorandum of Association and byelaws. As to who is entitled for membership, we have clear stipulation in bylaw- 4. All persons professing Islam subject to stipulations regarding age, payment of membership etc are entitled to be members. The crux of the grievance in this case is that such persons eligible for membership of the society and consequently eligible to have a say in the administration of the Wakf are being denied their rights. It is to meet this situation of improper administration of the Wakf resulting from denial of membership to such eligible members of the community that grievance is raised soliciting issue of C.R.P. Nos.613 & 614 of 2010-E : 20 : directions under Section 32. Considering the nature of the grievance and the nature of the directions, we are certainly of the opinion that the Board has powers in itself under Section 32 to ensure that membership is granted to all eligible Muslim beneficiaries within the mahal and election of the muttawalli is conducted only after such admission of members. Going by the nature of the grievance and the nature of the objects sought to be achieved, we are of the