IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 CRP.No. 362 of 2009() --------------------- AGAINST THE ORDER DATED 04/06/2009 IN IA.16/2009 IN WOA.3/2009 of WAKF TRIBUNAL, KOLLAM .................... REVN. PETITIONER(S): APPLICANT/ 3RD PARTY ---------------------------------------- M.SHAJAHAN, S/O. MUHAMMED, 46 YEARS NEDUMTHARAYIL HOUSE, ARATTUPUZHA NORTH.P.O., TRIKKUNNAPUZHA ALAPPUZHA. BY ADV. SRI.H.HAMZA ROWTHER SRI.V.K.PEERMOHAMED KHAN RESPONDENT(S):/RESPONDENTS/ WAKF BOARD AND COMPLAINANT ----------------------------------------- 1. KERALA STATE WAKF BOARD, REP. BY ITS CHIEF EXECUTIVE OFFICER. 2. MUTHAWALLI, MADRASATHUL MADINUL UULUMIYA PARIPALANA YOGAM, KARTHIKAPALLY TALUK ARATTUPUZHA VILLAGE, ALAPPUZHA DIST. 3. LATHIF METHA, CONVENER, ARATTUPUZHA DARAS SAMRAKSHANA SAMIDI, METHA HOUE, ARATTUPUZHA.P.O., ALAPPUZHA. ADV. SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R1 SRI.BABU KARUKAPADATH FOR R2 SMT.M.A.VAHEEDA BABU FOR R2 SRI.P.G.PRAMOD FOR R2 SRI.KANDAMPULLY RAHUL FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.1541/2009 IN C.R.P. NO.362/2009 DISMISSED 22/1/2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ C.R.P.No. 362 OF 2009 ------------------------ Dated this the 22nd day of January, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision under Section 83(9) of the Wakf Act is an interlocutory order passed by the Wakf Tribunal in I.A. No.16/2009. The I.A. was filed in an original application filed by the petitioner alienee of certain items of the immovable properties alleged by the Board to be Wakf properties. W.O.A. No.3/09 was filed under Section 83(2) of the WAKF Act challenging the order No.E4-2406/08 dated 7/4/2009 of the Wakf Board under which it is decided by the Board that steps, as envisaged under Section 52 of the Wakf Act, should be initiated for recovering possession of the subject properties. The learned Tribunal has, under the impugned interlocutory order, dismissed the I.A. taking the view that WOA is premature and that there is no material to hold that any requisition, as envisaged by Section 52(1), has been sent by the Wakf Board to the Collector of the District where the property is situated and also as to whether any order has been passed by the Collector as envisaged by CRP.No.362/2009 2 Section 52 (2) of th Act. 2. This revision is filed challenging the order of the Tribunal declining stay and dismissing the application on the various grounds. We have heard the submissions of Sri.V.K.Peer Mohamed Khan, learned counsel for the revision petitioner and those of Sri.M.M.Saidu Muhammed, learned Standing Counsel for the State Wakf Board. We also heard the submissions of Sri.Babu Karukapadath, learned counsel for the second respondent. 3. Sri.Peer Mohamed Khan put his submissions on the basis of the grounds raised in the memorandum of revision and he was supported in all his submissions by Sri.Babu Karukapadath. All their submissions were resisted by Sri.Saidu Muhammed. Sri.Peer Mohamed Khan would submit that the revision petitioner is aggrieved mostly by the observations contained in the impugned order, which if allowed to stand, will cause serious prejudice to the petitioner while WOA is being finally decided. Sri.Saidu Muahmmed would submit that WOA itself is not maintainable and it is found that when the main proceedings itself is not maintainable in law, no interim relief can be granted. CRP.No.362/2009 3 Sri.Saidu Muhammed submitted that no order, as envisaged by Section 83 (2) of the WAKF Act, has been passed in this case. Taking strong exception to the above submission, Sri.Babu Karukapadath drew our attention to the order which was impugned before the Tribunal. According to him, the above order is captioned as an order and is certainly a order deciding to initiate requisite action for recovery of the subject property. According to Sri.Babu Karukapadath any decision entering findings affecting the civil rights of any party will be branded as an order for the purpose of Section 83 (2) even if the same is not captioned as an order. 4. We have anxiously considered the rival submissions. The W.O.A. has admittedly not been finally decided by the learned Tribunal. We find some merit in the submission of Sri. Peer Mohammed Khan that the observations in the impugned order would give clear impression that the learned Tribunal is of the view that the W.O.A. itself is not maintainable in law or that it is premature. According to us, it has to be clarified that the observations and findings contained in the impugned order are only provisional and shall not influence the learned Tribunal CRP.No.362/2009 4 while it adjudicates the WOA. We feel that the question regarding the maintainability of the WOA has to be addressed specifically by the learned Tribunal while deciding the WOA itself. It is not disputed that the order impugned in the WOA was passed by the Wakf Board without issuing any notice to the revision petitioner. Under the above circumstances, we are of the view that without deciding the merits of the issues involved in the WOA, the CRP can be disposed of immediately in the following terms; i). The Wakf Tribunal is directed to take up WOA No.3/09 at the earliest and dispose of the same in accordance with law at any rate within four months of receiving a copy of this judgment. The learned Tribunal is directed to specifically address the issue as to whether the WOA is maintainable. ii). In the meanwhile, since the petitioner is in actual physical possession of the properties in question, there will be a direction to both sides to maintain status CRP.No.362/2009 5 quo as obtaining today as regards the above property till the learned Tribunal renders final decision WOA No.3/2009. The learned Tribunal should not be influenced in any manner by anything that is stated in the impugned order while taking decision in WOA. The findings and observations therein should be treated as provisional and made only for the purpose of deciding the I.A. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk