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 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRP.No. 40 of 2010() -------------------- OS.63/2008 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER(S): RESPONDENT/1ST DEFENDANT --------------------------------------------- A.P.MUHAMMED KUTTY, S/O. ASSAMUTTY MARAKKAR, AGED 58 YEARS, RESIDING AT NEDUVA AMSOM AND DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, KERALA STATE. BY ADVS. MR. B.KRISHNAN MR. R.PARTHASARATHY RESPONDENT(S): PETITIONERS/PLAINTIFFS ------------------------------------------- 1. PUTHANPEEDIKAPALLI PARIPALANA COMMITTEE, REPRESENTED BY ITS SECRETARY, T.P.KUNHIKOYAMUTTY, S/O. MUHAMMED @ BAVUTTY HAJI, AGED 50 YEARS, RESIDING AT PARAPPANANGADI, TIRUR TALUK. 2. T.P.KUNHIKOYAMUTTY, SECRETARY OF PUTHANPEEDIKAPALLI PARIPALANA COMMITTEE, S/O. MUHAMMED @ BAVUTTY HAJI, AGED 50 YEARS, RESIDING AT PARAPPANANGADI AMSOM AND DESOM OF TIRURANGADI TALUK. ADVS. MR. K.M.FIROZ FOR R1&2 MS. M.SHAJNA FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- C.R.P. No.40 of 2010 ---------------------------------- Dated this the 26th day of March, 2010 O R D E R -------------- Abdul Rehim,J. 1. The first defendant in suit O.S.No:63/2008, on the files of Wakf Tribunal, Kozhikode is the revision petitioner herein. The respondents are the plaintiffs in the suit. The revision petitioner is challenging the order of temporary injunction passed in I.A.1133/08 dt:15.10.2009. The said application is filed by the plaintiff seeking temporary injunction restraining the revision petitioner/1st defendant, his supporters and men from committing any act of waste in the petition schedule property and from proceeding with or completing any construction work therein and also from causing obstruction or interference in any manner to the peaceful possession and enjoyment of the petition schedule property by the plaintiffs, till the disposal of the suit. The parties are referred hereunder in the order as 1st defendant and plaintiffs. 2. The 1st plaintiff is a Society registered under the Societies Act, which claims to be a committee in charge of CRP.40/2010 2 administration of the Wakf namely, “Puthanpeedikapalli”. Second plaintiff is the Secretary of the committee. Suit is filed for prohibitory injunction against the 1st defendant from trespassing into the scheduled Wakf property and from constructing any building therein and also from obstructing the plaintiffs from peaceful possession and enjoyment of the schedule property. A brief narration of the averments in the plaint and in the affidavit filed in support of the interim injunction application is as follows. The Wakf was created through a registered deed executed by one Smt. Biriyakutty Umma and by virtue of the terms of the deed, her son Sri. Assamutty Marakkar was appointed as the trustee. Item No:2 in the plaint is a garden land, the income of which is being utilised for maintenance of the Mosque situated in Item No:1. Sri. Assamutty Marakkar became unable to manage the affairs of the Wakf and he had volunteered to entrust the management with the beneficiaries. A meeting of the beneficiaries was convened with the active participation of the 1st defendant, who is none other than the son Sri. Assamutty Marakkar, on 21.2.1992, in which it was decided to convene the general body of the Mosque on 23.2.1992. The 1st defendant also participated in the general body and he is a signatory to its minutes. In the general body meeting, a CRP.40/2010 3 committee was formed with President and Secretary and the 1st defendant as patron. The committee was constituted for the purpose of re-construction of the Mosque and the committee was subsequently registered as a Society with written bye-laws for effective management of the affairs of the Wakf. Sri.Assamutty Marakkar died on 19.9.1998. Even before his death he had given up mutawalliship and the administration of the Wakf was entrusted to the committee/Society. Thereafter the Society is managing all the affairs of the Wakf and its properties such as, Niskarapalli, Madrassa, and English Medium School, etc:. But the 1st defendant filed O.S.61/2003 before the Wakf Tribunal seeking declaration that he is the mutawalli of the Niskarapalli and other properties. The said suit was dismissed on 31.12.2005. The matter was taken up in revision before this court in CRP 214/2006. In the meanwhile certain other beneficiaries of the Wakf approached the Kerala Wakf Board seeking to frame a scheme for administration of the Wakf in question. The said petition was resisted by the 1st plaintiff on the ground that the Society is managing all affairs in a proper manner under duly formulated bye-laws. In view of pendency of the petition before the Wakf Board, this court while dismissing CRP.No.214/06, directed the Wakf Board to dispose of the CRP.40/2010 4 matter as expeditiously as possible and to decide the question regarding framing of a scheme which will eventually resolve disputes regarding the mutawalliship. But the petition which was pending before the Wakf Board (Petition No:19/03) was subsequently withdrawn, on 8.8.2008. The 1st defendant had also filed O.S.26/04 before the Tribunal against a third person as if he is the mutawalli of the Wakf. On intervention of the 1st plaintiff Society, that suit was also dismissed by Tribunal, on 31.5.2006. The 1st defendant has no right of whatsoever nature in the management of the Wakf property. Despite this, the 1st defendant obtained a 'Building Permit' and approval of Plan for construction of a building in the schedule property, misrepresenting the Grama Panchayat that he is the authorised mutawalli. But on an appraisal of the real facts, the Secretary of the Grama Panchayat had suspended the permit. But the 1st defendant is proceeding with construction neglecting the objections raised by the Society. Hence the suit for prohibitory injunction was filed and an interim injunction as above was sought for pending disposal of the suit. 3. The 1st defendant resisted the I.A contending that he is the mutawalli of the Wakf having rights to its management, by virtue of the Wakf Deed. The plaintiffs have CRP.40/2010 5 never been recognised as mutawalli of the Mosque or the Madrassa. There is no document to substantiate claims of the plaintiffs and that the plaintiffs have not sought for any relief of declaration with respect to their status as mutawalli. The Wakf Board has never approved the plaintiffs as mutawalli. The allegation regarding misleading of the authorities of the Panchayat was denied and it is contended that the permit was issued after due enquiries. The allegation of trespass into plaint schedule property is totally unsustainable, because the 1st defendant is still under possession and management of the properties. His status as mutawalli has been duly recognised by the Wakf Board and the licence was suspended by the Panchayat without issuing any notice to him. It is stated that, father of the 1st defendant was designated as mutawalli in terms of the Wakf Deed and he was managing the Wakf by reconstructing the Mosque expending huge amount along with contributions received from voluntary organisations and persons in the locality. The allegation that his father had abdicated or relinquished the office of the mutawalli, is stoutly denied. It is contended that the 1st defendant was prosecuting a suit filed by his father in the capacity as mutawalli. It is also contended that he is paying revenue charges, Electricity charges and performing all other acts CRP.40/2010 6 required for proper administration and management of the Wakf. O.S.61/2003 was happened to be filed only because some disgruntled elements led by the second plaintiff had filed O.P.No:19/2003 before the Wakf Board. The petitioner in O.P.19/2003 is none other than the father of the 2nd plaintiff. It is stated that, this court while disposing CRP.No:214/2006 had expunged all adverse findings of the Tribunal contained in the Judgment of O.S.61/2003 and therefore any findings contained in Judgments of O.S.26/2004 and 61/2003 are not binding. No authority or court of law had accepted the plaintiffs as mutawalli. The Wakf properties are still under possession and control of the 1st defendant and he alone is managing the same. Therefore there is no balance of convenience in favour of the plaintiffs and that the interim injunction application is liable to be dismissed, are the contentions. 4. In the counter affidavit filed on behalf of the 2nd defendant, the Wakf Board, it is admitted that Sri.Assamutty Marakkar was the mutawalli and that the 1st defendant is entitled to manage the Wakf since he has got right to step into the shoes of the late mutawalli, as legal heir. 5. Initially, the interim injunction application was disposed of by granting temporary injunction as prayed for. CRP.40/2010 7 But in CRP. No:226/2009 filed by the 1st defendant, this court set aside the order and remitted the matter back to the Tribunal for passing fresh orders on the basis of materials in accordance with law, considering the rights of parties. This court directed continuance of the ad-interim injunction granted by the Tribunal till such decision is taken. The matter was elaborately considered by the Tribunal after remand and the order impugned in this revision is passed in compliance with the direction contained in the order in CRP.226/09. 6. Heard, Sri.B. Krishnan, learned counsel appearing for the revision petitioner and Sri.K.M. Firoz, learned counsel appearing for the respondents. Argument of the revision petitioner is that the Kerala Wakf Board had accepted mutawalliship of the 1st defendant. Ext.B10 is a proceedings issued by the Wakf Board which will establish the above contention. Various other documents produced like, ownership certificate, land tax receipts, possession certificate, etc:, (Exts.B1, B2 & B3) will also substantiate the fact that the 1st defendant is a mutawalli and that he is in administration of the Wakf. Definition of mutawalli contained in Section 3(i) of the Wakf Act, 1995 was brought to our notice. It includes any person appointed, either verbally or CRP.40/2010 8 under any deed or instrument by which a Wakf has been created or appointed by a competent authority, to be mutawalli of the Wakf and includes other persons appointed by mutawalli to perform duties of a mutawalli. According to Sri.Krishnan, the mutawalli duly appointed by virtue of the trust deed is the predecessor in interest of the 1st defendant, Sri. Assamutty Marakkar. The 1st defendant, being his son, is the hereditary mutawalli officiating in charge, after death of his predecessor. The power for appointment and removal of mutawalli is vested exclusively with the Wakf Board as per Section 32(g) of the Wakf Act, 1995. Procedure with respect to appointment and removal of mutawalli are dealt with under Sections 63 and 64 of the Wakf Act. It is noticed that such powers are exclusively vested with the Wakf Board. In the case at hand the Wakf Board had already approved mutawalliship of the 1st defendant, and that it had never issued any order removing the 1st defendant. Nor the Wakf Board at any point of time had accepted any other person or body as mutawalli of the Wakf. Therefore the plaintiffs are not entitled to seek an injunction restraining the duly approved mutawalli from discharging his functions. It is also contended that O.P.No:19/2003 was filed before the Wakf Board by none other than the father of the 2nd plaintiff and in CRP.40/2010 9 that petition it was admitted that the 1st respondent is acting as mutawalli of the Wakf. Hence it is argued that, the suit in question which is filed seeking an injunction simpliciter against the duly approved mutawalli is totally unsustainable in the eye of law and the suit if decreed will virtually result in removal of mutawalli, which is a power exclusively conferred on the Wakf Board. Such a suit is not maintainable since the dispute will not come within the purview of Section 83(2) of the Wakf Act. Therefore it is argued that the suit as well as the interim inunction application are highly misconceived and is totally unsustainable in the eye of law. It is alleged that the suit in question as well as the interim injunction application is filed only as a crook to achieve the goal of removal of the mutawalli, through an indirect method. The interim injunction if sustained will result in preventing the 1st defendant, who is the duly authorised and approved mutawalli from discharging his functions, which cannot be prevented as long as he continues as the mutawalli of the Wakf and unless anybody else has been approved as mutawalli by the Wakf Board in a due process under law, is the contention. 7. Sri. K.M. Firoz, learned counsel for the respondents/plaintiffs resisted the arguments contending that the 1st plaintiff committee is the mutawalli who is CRP.40/2010 10 administering the Wakf. It is pointed out that definition of mutawalli as provided under Section 3(1) of the Act will also take in, any committee for the time being managing or administering any Wakf property. It is argued that the 1st plaintiff Society was duly constituted with knowledge and consent of the 1st defendant. It is pointed out that decision with respect to handing over administration of the Wakf was taken in meetings held on 21.12.1992 and 23.12.1992 respectively and the 1st defendant had participated in those meetings and consented for such decision. The minutes of the general body meeting contains signature of the 1st defendant as a participant. But counsel for the 1st defendant had pointed out that participation of 1st defendant as well as his signature in the minutes are not admitted and those aspects are stoutly denied in the written statement filed before the Tribunal. According to Sri.K.M. Firoz the 1st plaintiff committee is administering all affairs of the Wakf, including affairs of the Mosque, Madrassa and public school, without there being any hindrance from any corner and the entire beneficiaries had accepted such management. But the 1st defendant is now attempting to usurp into powers of the committee by raising untenable contentions regarding mutawalliship and that he is attempting to construct a CRP.40/2010 11 building within the Wakf property without consent and co- operation of the 1st plaintiff committee. Therefore the suit is perfectly justified, is the contention. 8. On an active consideration of the rival contentions, we notice that the question raised by the 1st defendant is regarding maintainability of the suit itself. Crux of the contention is that the suit or the interim injunction application, if allowed will result in removal of a duly constituted mutawalli, for which the statute provides powers exclusively on the Wakf Board. By filing a suit for injunction, even without seeking a declaration, attempt of the plaintiffs is to achieve the goal of removal of mutawalli and such a suit is not one coming within the purview of Section 83(2) of the Act, is the contention. In support of the above proposition, a ruling of the Hon'ble Supreme Court in M.P.Wakf Board Vs. Subhan Shah (Dead) by Lrs. and others ((2006) 10 SCC 696) is pointed out. It is held therein that, the Wakf Act is a self-contained code and Section 32(2) of the Act deals with powers and functions of the Board, without prejudice to the generality of power contained in sub-section (1) thereof. The Tribunal has been constituted for purposes mentioned in Section 83 of the Act and it is an adjudicatory body. Its decision is final and binding. But it could not usurp CRP.40/2010 12 jurisdiction of the Board. In the said case the Hon'ble Supreme Court held that in the absence of any specific power conferred on the Tribunal to frame a scheme, the Tribunal ought to have left the said functions to the Board which is statutorily empowered for the same. It is held that, when a statute creates authorities to exercise their respective functions, each such authorities must exercise such powers within four corners of the statute. The arguments of the learned counsel for the revision petitioner is that appointment and removal of mutawalli is a power conferred exclusively with the Wakf Board and the Tribunal is not entitled to usurp into such powers in a suit filed seeking an injunction simpliciter. On the contra, Sri. K.M. Firoz had pointed out decision of this court in Pookadan Moideenkutty Vs. Kuttiyali and others (2009 KHC 773). It is held therein that under sub-section (2) of Section 83 the Tribunal has power to determine any dispute, question or other matters regarding a Wakf or Wakf property and an order of Wakf Board is not a condition precedent for institution of such suit. Referring to Section 64, which enumerates circumstances under which the Board can remove a mutawalli, this court held that a suit can be entertained by the Tribunal for declaring an individual as mutawalli of the Wakf and Section CRP.40/2010 13 64(1)(k) does not bar such suit. But in the case at hand we notice that the suit filed before the Tribunal does not contain any prayer seeking declaration with respect to appointment or removal of mutawalli. Further the dictum laid down by the apex court in the decision cited above, will be binding on us in view of Article 141 of the Constitution of India. 9. Considering the rival contentions on the legal aspects as pointed out above, we are not proposing to enter on any specific finding in this revision petition with respect to maintainability of the suit in this case, mainly for the reason that it is an issue which needs adjudication by the Tribunal itself, at the first instance. Further, we notice that we are only dealing with a revision filed against an order granting interim injunction. At the same time we notice that for granting of temporary injunction under Order XXXIX Rule 1 of the CPC, one of the essential ingredient is establishment of a prima facie case. Whether a prima facie case is established or not is a question which definitely have a bearing on the issue regarding maintainability of the suit. Hence we are of the opinion that while passing orders on the application for temporary injunction, the Tribunal should also take note of the question regarding maintainability of the suit itself. We had occasion to peruse the Order passed by this court in CRP.40/2010 14 CRP.No.226/2009, on the earlier round of litigation on the matter. While remanding the matter this court observed that, for fresh decision of the Tribunal, the main ground on which the Tribunal had placed reliance is the dismissal of O.S.61/2003. But in view of the judgment of this court in CRP.214/2006, the finding in the said suit has no relevance. Therefore a re-consideration of the issue based on the pleadings in the present suit was directed. But in view of the discussions made hereinabove we feel that a re-consideration of the matter with proper advertence to the question regarding maintainability of the suit, is essential. Therefore we are inclined to set aside the impugned order of the Tribunal and to remand the matter for fresh consideration. The Tribunal will take a fresh decision on I.A.No.1133/2008, taking note of the question regarding maintainability of the suit itself. Needless to say that the Tribunal can also raise that question as a preliminary issue and the decision taken thereon will definitely have a bearing on the question regarding further prosecution of the suit. 10. In the result, the CRP is allowed and the impugned order of the Wakf Tribunal is hereby set aside. The matter is remanded to the Wakf Tribunal for taking a fresh decision bearing in mind the observations and directions contained CRP.40/2010 15 hereinabove. The Tribunal will dispose of IA.1133/08 afresh, after affording opportunity of hearing to both parties, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this order. 11. The ad-interim injunction granted by the Tribunal in the suit will continue in force till a fresh decision is taken as directed above. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb