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 13TH AUGUST 2010 / 22ND SRAVANA 1932 CRP.No. 299 of 2010 ----------------------------- (O.P.NO.1/2010 OF WAKF TRIBUNAL,LAKSHADWEEP, KAVARATTI) .................... REVISION PETITIONERS: ------------------------------------ 1. S.V.P.POOKKOYA ,AGED 71 YEARS, S/O.SYED KOYA, SHAIKKINTE VEEDU, ANDROTH ISLAND, LAKSHADEWEEP. 2. S.V.SYED YOUSEF KOYA THANGAL, AGED 70 YEARS, S/O.KUNHIKOYA THANGAL, SHAIKKINTE VEEDU ,ANDROTH ISLAND, LAKSHADEWEEP. 3. S.V.SYED MUHAMMED KOYA THANGAL, AGED 56 YEARS, S/O.ATTA KOYA THANGAL, SHAIKKINTE VEEDU, ANDROTH ISLAND, LAKSHADEWEEP. 4. S.V.P. SYED HASSAN THANGAL, AGED 35 YEARS, S/O.JAMALUDHEEN THANGAL, SHAIKKINTE VEEDU, ANDROTH ISLAND,LAKSHADEWEEP. BY SRI. M.C. SEN SENIOR ADVOCATE, ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH, SRI.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON, SMT.ANJU P.NAIR. RESPONDENTS: ------------------------ 1. THE CHIEF EXECUTIVE OFFICER/ SECRETARY, LAKSHADWEEP STATE WAKF BOARD, UNION TERRITORY OF LAKSHADWEEP,NEAR DISTRICT & SESSIONS COURT, SANTHIPATH ROAD,KAVARATTI -682 553. C.R.P. NO. 299/2010: 2. S.V.CHERIYAKOYA THANGAL SHAIKKINTE VEEDU, ANDROTH ISLAND, LAKSHADWEEP. R1 BY SRI.S.RADHAKRISHNAN,S.C,LAKSHADWEEP ADMN., R2 BY ADVS. SRI.SHYAM PADMAN, SRI.A.RANJITH NARAYANAN, SMT.M.LISHA, SRI.S.K.SAJU. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- C.R.P. No.299 of 2010 ---------------------------------- Dated this the 13th day of August, 2010 O R D E R -------------- Abdul Rehim,J. This revision petition under Section 83(9) of the Wakf Act, 1995 (hereinafter referred to as the Act for short) is instituted against Judgment in W.O.P.No.1/2010 of the Wakf Tribunal, Lakshadweep. The revision petitioners are the petitioners before the Tribunal and the respondents herein are the respondents. Before the Tribunal the revision petitioners have challenged an interim order passed by the Lakshadweep State Wakf Board in I.A.1/2010 in W.C.No.1/2010. 2. Subject matter in dispute relates to appointment of 'Muthawalli' and 'Shaik' of 'Ujra Mosque', which is a registered Wakf situated at Androth Island. By the order of the Wakf Board which was impugned before the Tribunal the 1st revision petitioner and the 2nd respondent were appointed as joint Muthawallies of the mosque and they were directed to administer the mosque CRP.299/2010 2 in accordance with directions of the Board, on submitting monthly reports to the Board, till disposal of the case. The Board also permitted the 2nd respondent to continue with performance of religious functions like 'Uroos', 'Ratheeb' and 'Khatham' as the 'Shaik', till the disposal of the case. The Board found that the 2nd respondent was the defacto Shaik and Muthawalli. The 2nd respondent was also directed to submit periodic income and expenditure statements of religious functions to the Board. The Board also authorized the Assistant Wakf Commissioner of Androth Island to supervise functioning of the mosque under the administration of the joint Muthawallis. The said order of the Board was pronounced on 8.4.2010 and it came into force on that day. 3. It is evident that there existed a civil litigation on the issue regarding right of administration of the mosque, which culminated in a Judgment of this court in S.A.No.698/99, dated 17.12.2009 (Annexure-E produced along with counter affidavit of the 2nd respondent). The parties herein were parties to that proceedings and the said CRP.299/2010 3 judgment is binding on them. This court, repelling contentions that the mosque belongs to a particular Thavazhi and members of that 'Thavazhi' alone has got right to hold Muthawalliship or Shaikship, restored the declaratory decree passed by the Munsiff Court, which was reversed in appeal by the Sub Court. Result of Annexure-E judgment is a declaration that the spiritual and temporal administration of the mosque vests with all the members of the ancient Tharawad, viz. “Shaikinteveedu Tharawad”. The Munsiff's Court also declared that the right to hold office of 'Shaik' of Ujra mosque vests with the qualified members of the tharawad. The factual situation emerging out from Annexure-E judgment reveals that the 1st defendant in the suit, Sri. S.V.Pookoya Thangal, who was admittedly the 'Muthawalli' and 'Shaik' of the mosque, died on 12.6.2009 during pendency of the second appeal. Claim of the 2nd respondent was that Sri. S.V.Pookoya Thangal has declared him as successor, and eversince thereafter he was functioning as 'Muthawalli' and 'Shaik'. In Annexure-E judgment this court observed that it is not necessary to go CRP.299/2010 4 into the question as to who among members of the tharawad should be Muthawalli or Shaik and what should be his qualifications. 4. Immediately after disposal of the second appeal, the petitioners herein have approached the Wakf Board with a prayer for appointing them as joint Muthawallies of the mosque. The 2nd respondent also moved before the Board through a petition dated 30.6.2009 (Anenxure-B produced along with the counter affidavit) seeking to record that he is the 'Shaik' and 'Muthawalli' of 'Ujra Mosque', Androth. He also approached this court through a writ petition [WP(C).No:1071/2010] seeking early disposal of the matter by the Wakf Board. This court directed the Board to consider both the petitions and to take a decision within a period of 4 months. It was clarified that, it will be open to the Wakf Board to make necessary arrangement for administration of the mosque in a peaceful manner, in the meanwhile. The petitioners herein filed writ appeal against the said judgment contending that the Wakf Board has no jurisdiction to unsettle decisions of the civil CRP.299/2010 5 court which attained finality through Annexure-E judgment. The Division Bench, eventhough accepted such contention, clarified that whether or not any issue is left out by the civil court and as to whether the Board has jurisdiction on such issues are matters which can be raised by the parties before the Wakf Board itself. it was observed that if any issue is left out by the civil court, it is a matter for the Board to consider and to decide after hearing both sides, subject to jurisdiction of the Board. Annexure-G produced along with the counter affidavit is the judgment of the Division Bench in W.A.No.359/2010. In effect, while confirming the direction issued for disposal of the matter by the Board, the Division Bench only clarified that the parties are at liberty to address the Board on the question as to whether the civil court has to left open any issue and also on the question as to whether the Board has got jurisdiction to decide any such issues. It is also pertinent to note that, the freedom given to the Board for making interim arrangement for administration was not in any way interfered by the Division Bench. CRP.299/2010 6 5. The order of the Wakf Board (Annexure-H produced along with the counter affidavit) which was impugned before the Tribunal, was issued making an interim arrangement for administration of the mosque, pending final disposal of the matter. It is undisputed that the Board has not decided the question of jurisdiction. It is also worth noting that the Board has imposed stringent conditions for accountability with respect to the administration and also provided superintendence on such administration. 6. During pendency of the matter before the Tribunal, at the first instance, an interim order was issued on 20.4.2010, making slight modification to the interim arrangement to the limited extent of permitting the 1st petitioner also to conduct ceremonies like 'Uroos', 'Ratheeb' and 'Khatham' as 'Shaik' along with the 2nd respondent during alternate weeks, as a stopgap measure. But the matter was again considered on 24.4.2010 and at the instance of the 2nd respondent the order was again modified. Having regard to the mood of parties and having recognized that the conduct of religious ceremonies in the CRP.299/2010 7 mosque had given rise to law and order problems in the past, the Tribunal restrained conduct of the ceremony of Uroos scheduled on 28.4.2010. But at the same time the joint Mutawalliship was allowed to be continued. In the impugned judgment, the Tribunal while sustaining the interim arrangement had restrained performance of ceremonies like 'Uroos', 'Ratheeb' and 'Khatham' till such time the Board takes final decision on the rights of the parties to function as Shaik of the mosque. The parties were directed to address the Wakf Board on the question of jurisdiction for nomination of the Shaik. The Board was also directed to dispose of the matter, within the time frame stipulated by this court. 7. Sri.M.C.Sen, learned Senior Counsel on behalf of the revision petitioners assailed the judgment on a preliminary ground that Annexure-H order of the Wakf Board was irregular and invalid. It was contended that on 3.4.2010, the mater was heard by 4 members of the Wakf Board, including one Sri.M.S.Syed Ismail Koya. In fact he was disqualified from continuing as member of the Wakf CRP.299/2010 8 Board since he was convicted in a criminal case. Therefore the 1st revision petitioner filed an application before the Board on 5.4.2010 bringing notice of the Board about the disqualification. But the Board ruled on the application that Sri. M.S.Syed Ismail Koya was nominated by the Lakshadweep Administration and that the Board has no authority to consider as to whether he is suffering from any disqualification or not. The decision of the Board in this regard was challenged by the 1st petitioner before this court in WP(C). No.12353/2010. But, by the time the writ petition came up for consideration the impugned order of the Wakf Board was pronounced on 8.4.2010 and therefore the writ petition was disposed of reserving liberty of the 1st petitioner to challenge the order before the Tribunal. According to the senior counsel, subsequently Sri.M.S.Syed Ismail Koya was disqualified and removed from the Board. According to the revision petitioners the impugned order dt.5.4.2010 which was issued on 8.4.2010, with the 3 members as signatories, was only fabricated and hence unsustainable. CRP.299/2010 9 8. Disputing the above said contention, Sri.T.P. Aravindakshan, learned counsel for the 2nd respondent argued that the above said Sri.M.S.Syed Ismail Koya has not participated in the proceedings and only 3 members of the Board have issued the order in question. It is evident from the order dt.5.4.2010 which was pronounced on 8.4.2010 that the proceedings was issued only by the Chairman along with 2 members, excluding the above said Sri.M.S.Syed Ismail Koya. We further notice that in the judgment in the WP(C).No.12353/10 the learned Single Judge observed that, “It is submitted by Sri.M.C.Sen, learned senior counsel that in the light of the subsequent development, whereby the 4th respondent has not signed the order dt.5.4.2010, and as it is evident that 4th respondent has not participated in the proceedings, the writ petition also may be disposed of”. It is clear that the revision petitioners have conceded that the order in question was issued only by the Chairman and 2 of its members. Even otherwise, apart from the oral assertion there is nothing on record to prove such a contention. CRP.299/2010 10 Further, the revision petitioners have no case that on the date of the alleged hearing the above said Sri.M.S.Syed Ismail Koya was removed from the Board, by virtue of the alleged disqualification. Hence we are of the considered opinion that the order of the Wakf Board is in order and sustainable. 9. Sri.M.C.Sen, advanced elaborate arguments based on Section 32 of the Act to contend that the Wakf Board has no jurisdiction to make appointment of 'Shaik' of 'Ujra Mosque'. According to him, the general powers and functions of the Board enumerated under Section 32 (1) is that of general superintendence of all Wakfs to see that such Wakfs are properly maintained, controlled and administered and income thereof is duly applied for the objects for which such Wakfs are created or intended. According to him, the general power of superintendence will not enable the Board to interfere with matters of religious rites and ceremonies or in the matter of appointment of 'Shaik' which is a post of religious head for conducting rites and ceremonies. Enumerating the various CRP.299/2010 11 functions listed under Section 32(2), the learned senior counsel argued that all those functions relate only with respect to administration of the properties of the Wakf and the income derived therefrom and it will not confer power on the Board to make appointments of religious heads, which is totally within the domain of members of the Wakf, in accordance with custom and usage prevailing. Sri.M.C. Sen has drawn our attention to the relevant pages of the Book, “The Law of Wakfs, An Analytical & Critical Study”, written by Sri.S.A.Kader, Former Judge, High Court of Madras. He specifically pointed out comments of the author, based on certain precedents, drawing a clear distinction with respect to the powers and functions of the Wakf Board, between matters of superintendence and administration with that of matters relating to the religious rites and ceremonies. The author has expressed the view that the appointment of religious heads and conduct of religious rites and ceremonies in the Wakf should be governed purely on the basis of the settled scheme or as per the custom and usage prevailing. Eventhough the CRP.299/2010 12 Board is empowered to have superintendence over administration of the Wakf by the Muthawallies and even for appointing and removing Muthawalli and also for settlement of scheme for administration of the Wakf, the Board has no power to interfere with the appointment of any religious head, is the contention. 10. Sri.T.P.Aravindakshan per contra argued that the general power of the Board for superintendence includes power to ensure proper maintenance, control and administration of the Wakf. This will surely enable the Board to make arrangements for conduct of religious ceremonies when there is a dispute in relation to the post of 'Shaik', eventhough such post is intended for heading religious ceremonies. Learned counsel also pointed out Section 32(2)(o) which enable the Wakf Board to do all such acts in general as may be necessary for control, maintenance and administration of the Wakf. The factual situation arising in this case is that, there is controversy as to who was the defacto 'Shaik' conducting functions like 'Uroos', 'Ratheeb' and 'Khatham' at the 'Ujra Mosque'. It is CRP.299/2010 13 admitted by both sides that the deceased first defendant in the civil suit Sri.S.V.Pookoya Thangal was the 'Muthawalli' and the 'Shaik' of the mosque. He died on 12.6.2009. According to the 2nd respondent during his lifetime he made declaration that the 2nd respondent will be his successor. The 2nd respondent would also claim that he was continuing a defacto Shaik and Muthawalli from the date of such declaration. However, it is pertinent to note that in the second appeal there was no finding as to who was the Muthawalli or Shaik and as to who is entitled to be appointed as Muthawalli or Shaik. According to the revision petitioners the 1st revision petitioner was acting as defacto 'Shaik' and therefore he is entitled to continue as Shaik, being senior member of the Thavazhi. There is also serious dispute among the parties regarding qualification of both these persons for appointment as 'Shaik'. 11. As noticed above while disposing the second appeal this court observed that it is not necessary to go into the question as to who among the members of tharawad should be the Muthawalli and Shaik and what should be his CRP.299/2010 14 qualification. In the impugned judgment the Wakf Tribunal, it is observed that the petitioners are not in a position to convince that there is some in-house mechanism available in the tharawad to select and entrust the religious duties of 'Shaik' with any one of its members. It is further stated that, considering the contentious mood of parties it cannot be reasonably expected that it is possible to bring the parties to make them sit together for arriving at an amicable settlement on the issue. Sri.T.P.Aravindakshan had also drawn our attention to powers vested on the Wakf Board under Section 67 of the Act with respect to supersession of the committee and also powers of supervision with respect to the administration of the Wakf. According to him, when there is a lack of settled scheme which is acceptable for the Board or any custom or usage for appointment of any religious head, it is always open for the Board to make its own arrangement especially with a view to maintain peace and tranquility in the affairs of the mosque and for its proper administration. He placed reliance on various precedents to point out that the Board’s CRP.299/2010 15 powers of superintendence and administration is wide enough to enable such arrangements for the proper functioning of the rites and ceremonies to be conducted in the mosque. 12. Referring to the decision of the Hon'ble Supreme Court in All India Imam Organization and others Vs. Union of India and others (AIR 1993 SC 2086) the learned counsel pointed out that it is held therein that the Board is vested not only with supervisory and administrative powers, but also it is the primary duty to ensure that income from the Wakf is spent for the purpose of their creation and in cases where creation is for community worship such worships are being performed in accordance with the mandatory practice observed in every mosque. The objective and purpose of every mosque being community worship and it being the obligation of the Board to ensure that the objective of the Wakf is carried on, the Board cannot escape from its responsibility for proper maintenance of religious service in a mosque. Hence it is held that it is not correct to say that the Board has no CRP.299/2010 16 control over the mosque or the Imam. The absence of any provisions in the Act or Rules providing for appointment of Imam or laying down their conditions of service is probably only because they are not considered as employees. In that case the Hon'ble Supreme Court observed that merely because the Imams are appointed by the Muthawallies, the Board cannot escape from its responsibility as the Muthawallies too. 13. The learned counsel has placed reliance on another decision of the Hon'ble Supreme Court in M.P.Wakf Board Vs. Subhan Shah (Dead) by LRs. and others ((2006) 10 SCC 696). In that decision it is held that the Wakf Tribunals constituted for the purposes mentioned in Section 83 of the Act is an adjudicatory body and it could not usurp into the jurisdiction of the Board. There is no provision empowering the Tribunals to frame a scheme and in the absence of any such power vested on it the Tribunals ought to have left such functions to the Boards, which are statutorily empowered therefor. 14. Sri.Aravindakshan had also drawn our attention CRP.299/2010 17 to a Division Bench decision of this court in Muhammed Kunju Vs. Biju (2008 (2) KLT 833) wherein powers of the Wakf Board enumerated under Section 32 and 67 was elaborately considered. It is held that from those provisions it is abundantly clear that power of administration, management and control shall vest in the Wakf Board and a duty is cast upon the Board to exercise its powers. If the Board finds that the committee is mismanaging the affairs and if it is necessary the Board can supersede such committee. It is further held that the Wakf Board alone shall have power to correct maladministration and mismanagement and it is empowered to issue suitable directions including the power of supersession. Under those provisions, the Wakf Board is also empowered to issue appropriate directions for the effective and smooth functioning of the Wakf. In Mohammed Ibrahim Vs. State of Kerala (2002 (3) KLT 649) a learned Single Judge of this court observed that, the powers and functions of the Board as laid down in Section 32 of the Act are comprehensive. The Board can issue directions for administration of Wakfs. CRP.299/2010 18 It can decide on the issues about appointment and removal of Mutawallies and also generally do all such acts as may be necessary for control, maintenance and administration of Wakfs. If a dispute is there, it is capable of adjudication only by the machinery prescribed by the Wakf Act and if the petitioner was advised to move the Wakf Board on the matters in issue it was not only prudent, but unexceptionable, is the findings. In that case it was held that pendency of a suit would not have prevented or disabled the Board from deciding any matter on which they have exclusive jurisdiction. 15. Learned counsel also pointed out the decision in Basheer Haji Vs. Kerala Wakf Board (2007 (1) KLT 1039) wherein a learned Single Judge of this court held that even though powers and functions of the Board are detailed in Section 32(2), that Section does not deal with supervisory function on religious matters is not an argument which can be accepted. It is not necessary to specifically mention about religious matters in the Section, because the Wakf itself in many cases is constituted for religious purposes. In CRP.299/2010 19 order to find out whether the Wakf is functioning within its objects and scheme, Wakf Board has to oversee religious matters administered by the Wakf. Therefore the supervisory power on religious matters is covered in the general powers of superintendence and it is an aspect of every other power left with the Wakf Board. Reliance was also placed on a Division Bench decision of this court in Pattakal Cheriyakoya and others Vs. Aliyathammuda Beethathebiyyappura Muthukoya and others (ILR 2008(1) Kerala) 467) in which relying on the dictum in M.P. Wakf Board’s case (cited supra) it is held that the powers vested on the Wakf Board is wide enough to give necessary directions regarding administration of the Wakf in accordance with objects of the Wakf. 16. Before considering the issue pertaining to jurisdiction of the Wakf Board, we notice that the revision petitioners are not entitled to raise such an issue before this court in order to assail the impugned judgment. It is pertinent to note that there are various decisions of this court which had attained finality among the parties inter CRP.299/2010 20 se. It could not be disputed that there is no declaration made by the civil court as to who should be the Muthavalli and Shaik of the mosque and as to what should be the method of appointment. It is highly pertinent to note that the revision petitioners have approached the Board after disposal of the second appeal, seeking appointment of them as joint Muthavallies of the mosque in question. They are parties to writ petition, WP(C).No.1071/10 wherein the Wakf Board was directed to decide on the question as to who should be the 'Muthavalli' and 'Shaik' of the 'Ujra mosque' in Androth Island, and also directing the Board to ensure that administration of the mosqe is conducted in a peaceful manner until the final decision is taken. Eventhough in W.A.No.359/10 the Division Bench had clarified that the parties are at liberty to raise the question of jurisdiction before the Wakf Board, it is held that the Wakf Board is entitled to render a decision on matters which have been left out by the civil court, subject to its jurisdiction. Of course, it is settled law that jurisdiction on any authority could not be conferred through any CRP.299/2010 21 Judgment. But as long as the revision petitioners have suffered the judgments, it is not open for them to agitate the issue of jurisdiction before any other court or forum, until the Board takes a decision on the question of jurisdiction. It is evident that the parties are yet to address arguments on the question of jurisdiction before the Wakf Board and the Wakf Board is yet to take a decision on that aspect. Under the above mentioned circumstances, the interim arrangement made by the Wakf Board till final disposal of the matter is perfectly within its jurisdiction, especially in view of the direction contained in the judgment of WP(C).No.1071/10 which got merged with W.A.No.359/10. 17. The Wakf Tribunal while disposing the matter has not interfered with the interim arrangement made by the Board. A slight modification made with respect to conduct of certain religious functions