IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 WP(C).No. 31709 of 2009(G) -------------------------- PETITIONER(S): --------------- 1. K.T.BEERAN KUTTY, S/O.MOHAMMED HAJI, MANNATHANATH HOUSE, CHEEKODE AMSOM, VAVOOR DESOM (P.O.), CHEEKODE (P.O.), PIN-673 645, MALAPPURAM. 2. M.C.ISMALKUTTY, S/O.MOIDEEN, MANGATICHALIL HOUSE, CHEEKODE AMSOM, VAVOOR DESOM, CHEEKODE. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): --------------- 1. KERALA STATE WAKF BOARD, REPRESENTED BY ITS SECRETARY, PARAMARA ROAD, ERNAKULAM, COCHIN-18. 2. THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, PARAMARA ROAD, ERNAKULAM, COCHIN-18. 3. MATTATHOOR V.MUHAMMED MUSALIAR, VAVOOR, CHEEKODE, MALAPPURAM, PIN-673 645. 4. K.M.MOHAMMED KUTTY HAJI, MANATHANATH HOUSE, VAVOOR (P.O.), CHEEKODE, MALAPPURAM, PIN-673 645. 5. K.K.ASHARAF, S/O.MOHAMMED, VAVOOR (P.O.), CHEEKODE, PIN-673 645. 6. A.K.MAMMU MUSALIAR, S/O.MUHAMMED HAJI, ALUNGAPARAMBIL HOUSE, CHEEKODE AMSOM, VAVOOR DESOM, MALAPPURAM, PIN-673 645. ADV. SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R1-2 SRI.K.M.FIROZ FOR R3-6 SRI.A.A.ABUL HASSAN, SC, WAKF BOARD FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 31709/2009 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE PERMISSION. P2. COPY OF THE CERTIFICATE BY THE CHEEKODE VILLAGE OFFICER. P3. COPY OF THE ORDER DTD.13.2.2008 IN I.A.NO.1507/07 OF THE WAKF TRIBUNAL. P4. COPY OF THE ORDER IN CRP NO.175/08 OF THIS COURT. P5. COPY OF THE COMPLAINT BY R3 TO R4 BEFORE R1. P6. COPY OF THE REPLY IN E.A.NO.8894/07. P7. COPY OF THE REPORT OF THE OFFICER OF THE WAKF OFFICER BEFORE R1. P8. COPY OF THE ORDER DTD.24.11.97 BY R2. P9. COPY OF THE ACCOUNTS STATEMENT OF THE MOSQUE. P10. COPY OF THE ORDER BY R1 DTD.14.10.09. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 31709 of 2009 ================== Dated this the 7th day of April, 2011 J U D G M E N T The petitioners are the General Secretary of the Vavoor Juma-at Palli Paripalana Committee and a member of that committee. For the purpose of renovating the mosque, they cut two teak trees standing in the property of the mosque and used the same for the wooden work of the mosque. The balance timber available was sold for ` 60,350/-. According to them, they cut the trees after complying with all the formalities prescribed by the Forest Department. Thereafter, respondents 3 to 6 filed a complaint before the 1st respondent Wakf Board. The 2nd respondent enquired into the allegations in the complaint and passed Ext.P8 order, whereby the petitioners were restrained from cutting and removing trees from the Wakf properties without prior sanction of the Board. Thereafter, the matter was taken up by the Wakf Board and the Wakf Board passed Ext.P10 order, wherein the Wakf Board directed the petitioners to deposit the sale proceeds as ordered by the 2nd respondent within 15 days, as an interim order. The petitioners are challenging Exts.P8 and P10 orders. The main contention of the petitioners is that Exts.P8 and P10 orders have been passed without jurisdiction. 2. The learned standing counsel for the Wakf Board would w.p.c.31709/09 2 contend that the power of the 2nd respondent can be traced to Section 25 of the Wakf Act and that of the Board can be traced to Section 32 of the Wakf Act. He would submit that insofar as Section 83(2) of the Act provides for an alternative remedy by way of application before the Wakf Tribunal, which is maned by a sitting District Judge, an independent authority, the petitioners should avail of that remedy first. 3. The petitioners would contend that insofar as Exts.P8 and P10 orders have been passed without jurisdiction, a writ petition is maintainable. 4. I have heard the matter on the question of maintainability and as to whether the petitioners should be relegated to the remedy before the Tribunal under Section 83 of the Act. Prima facie the orders appear to be under Sections 25 and 32. The question of jurisdiction itself is a mixed question of law and facts, and those facts have to be first verified for deciding the issue, which can be done only by taking evidence by the Tribunal. Therefore, without prejudice to right of the petitioners to approach the Tribunal taking up all the contentions available to the petitioners, under law, this writ petition is dismissed. If the petitioners file an application under Section 83(2) of the Act within two weeks, it would be considered by the Tribunal as an application filed within time and the Tribunal shall adjudicate the same on merits. For two weeks, the interim order passed in this writ petition would w.p.c.31709/09 3 continue to be in force. It would be open to the petitioners to seek interim orders from the Tribunal thereafter. I make it abundantly clear that the above observations in this judgment are purely for the purpose of deciding as to whether the petitioners should approach the Tribunal in the first instance and I have not considered any question including the question of jurisdiction, on merits and it would be open to the petitioners to raise these questions before the Tribunal untrammelled by any observations in this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge