IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 WP(C).No. 32328 of 2010(M) ------------------------- PETITIONER : -------------------- T.M.ABDUL LATIFF, ADVOCATE, MANAGER, KANJIRAMATTOM MOSQUE, KANJIRAMATTOM. BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.ESM.KABEER RESPONDENT(S): ------------------------- 1. KERALA STATE WAKF BOARD, REPRESENTED BY CHIEF EXECUTIVE OFFICER V.I.P.ROAD, KALOOR, COCHIN-682 017. 2. CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, V.I.P.ROAD, KALOOR, COCHIN-682 017. 3. T.A.BASHEER, CONFIDENTIAL ASSISTANT KERALA STATE WAKF BOARD, V.I.P.ROAD, KALOOR, COCHIN-682 017. R1 & R2 BY ADV. SRI.A.A.ABUL HASSAN, SC, WAKF BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 32328 of 2010(M) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE COMMON ORDER DATED 20-10-2000 PASSED BY THE ADDITIONAL DISTRICT COURT, ERNAKULAM IN REPORT NOS. 7/97, 8/97, 9/97, 5/98 AND 6/99 IN O.S. NO. 97/1101 ME. EXT.P2 : COPY OF THE RELEVANT PAGES OF THE JUDGMENT PASSED BY THE COURT OF THE DISTRICT JUDGE, ANJIKAIMAL IN O.S. NO. 97 OF 1101 ME. EXT.P3 : COPY OF THE ORDER DATED 16-2-1995 PASSED BY THE DISTRICT COURT, ERNAKULAM IN IA NO. 1165/1994 O.S. NO.97 OF 1101 ME. EXT.P4 : COPY OF THE ORDER DATED 16-12-1996 PASSED BY THE DISTRICT COURT, ERNAKULAM IN IA NO. 400/1996 O.S. NO.97 OF 1101 ME. EXT.P5 : COPY OF THE TRUST DEED DATED 26-7-2006. EXT.P6 : COPY OF THE SALE DEED DATED 17-4-2010. EXT.P7 : COPY OF THE NOTICE NO. B2-3748/CR DATED 8-6-2010 ISSUED BY THE FIRST RESPONDENT. EXT.P8 : COPY OF THE ORDER DATED 12-3-2010 PASSED BY THIS HONOURABLE COURT IN IA.NO.15012/2009 IN WP(C) NO. 33269 OF 2009. EXT.P9 : COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 8-5-2009. EXT.P10 : COPY OF THE ORDER DATED 14-10-2010 PASSED BY THE FIRST RESPONDENT IN ENQUIRY PROCEEDINGS NO. 3748/CR. EXT.P11 : COPY OF THE TENDER NOTICE DATED EXT.P12 : COPY OF THE ORDER DATED 12-8-2009 PASSED BY THE FIRST RESPONDENT IN ENQUIRY PROCEEDINGS NO. 3748/CR. EXT.P13 : COPY OF THE STATEMENT SHOWING THE ROUTINE EXPENSES OF THE MOSQUE. EXT.P14 IN IA.14980/10 : COPY OF THE STATEMENT SHOWING THE ROUTINE EXPENSES OF THE SCHOOL. ...3/- WP(C).No. 32328 of 2010(M) -3- EXT.P14 : COPY OF THE AUDIT'S REPORT DATED 28-4-2003. EXT.P14(a) : COPY OF THE AUDIT'S REPORT DATED 16/7/2003. EXT.P14(b) : COPY OF THE AUDIT'S REPORT DATED 22-12-2003. EXT.P14(c) : COPY OF THE AUDIT'S REPORT DATED 19-11-2007. EXT.P14(d) : COPY OF THE AUDIT'S REPORT DATED 28-1-2008. EXT.P14(e) : COPY OF THE AUDIT'S REPORT DATED 3-7-2009. EXT.P15 : COPY OF THE REPORT SUBMITTED BEFORE THE WAKF TRIBUNAL DATED 6-5-2009. EXT.P15(a) : COPY OF THE REPORT SUBMITTED BEFORE THE WAKF TRIBUNAL DATED 3-7-2009. EXT.P16 : COPY OF THE AUDITED REPORT OF K.M.J. PUBLIC SCHOOL AS ON 31-3-2008 DATED 10-7-2010. EXT.P17 : COPY OF THE AUDITED REPORT OF K.M.J. PUBLIC SCHOOL AS ON 31-3-2009 DATED 10-7-2010. EXT.P18 : COPY OF THE AUDITED REPORT OF K.M.J. PUBLIC SCHOOL AS ON 31-3-2010 DATED 10-7-2010. EXT.P19 : COPY OF THE APPLICATION DATED 29-11-2010 FILED BEFORE THE DISTRICT COURT, ERNAKULAM UNDER THE RIGHT TO INFORMATION ACT EXT.P20 : COPY OF THE REPLY DATED 3-12-2010 ISSUED BY THE DISTRICT COURT, ERNAKULAM IN APPLICATION NO.8/2010 DATED 29-11-2010. EXT.P21 : COPY OF LETTER DATED 1-12-2010 ALONG WITH THE STATEMENT OF ACCOUNTS AND AUDITED REPORTS. EXT.P22 : COPY OF THE ORDER DATED 8-4-1994 OF THE DISTRICT COURT, ERNAKULAM APPOINTING THE PETITIONER AS MANAGER OF KANJIRAMATTOM MOSQUE. ...4/- WP(C).No. 32328 of 2010(M) -4- RESPONDENT'S EXHIBITS: EXT.R2(A) : COPY OF THE COMPLAINT ALONG WITH THE LETTER NO. A2-D672/09 DATED 14-1-09 OF THE HONOURABLE DISTRICT COURT, ERNAKULAM. EXT.R2(B) : COPY OF THE COMPLAINT ALONG WITH THE COVERING LETTER NO. E5-881/09 ISSUED BY THE DIRECTOR, VIGILANCE & ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM DATED 24.1.2009. EXT.R2(C) : COPY OF A COMPLAINT DATED 17-9-2009 FROM SCHEME MEMBERS OF KANJIRAMATTOM PALLI. EXT.R2(D) : COPY OF THE LETTER IS DATED 27-3-1962 ISSUED BY THE REGISTRAR OF THIS HON'BLE COURT. EXT.R2(E) : COPY OF THE ORDER DATED 5-7-1969 OF THE DIST. COURT, ERNAKULAM. EXT.R2(F) : COPY OF THE ORDER DATED 14-9-1995 IN IA NO. 1070/93 IN O.S. NO. 97 OF 1101 PASSED BY THE DISTRICT COURT, ERNAKULAM. EXT.R2(G) : COPY OF THE ORDER DATED 20-9-2001 IN THE I.A. NO. 95/2001 (I.A. NO. 338/2001 OF DIST. COURT, ERNAKULAM) OF TE WAKF TRIBUNAL, ERNAKULAM. EXT.R2(H) : COPY OF THE ORDER DATED 21-4-2004 IN I.A. NO. 282/2003 IN O.S. NO. 97/1101 OF THE WAKF TRIBUNAL, ERNAKULAM. //TRUE COPY// P.A. TO JUDGE Mn P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 32328 OF 2010 -------------------------- Dated this the 20th day of December, 2010 J U D G M E N T The petitioner, a lawyer practising in this Court, has filed this writ petition challenging Ext.P10 order passed by the Kerala State Wakf Board (hereinafter referred to as 'the Board' for short). By Ext.P10 order, the Board placed the petitioner, who is the Manager of Kanjiramattom Mosque appointed by the District Court, Ernakulam under suspension and directed the Executive Officer of the Board to issue notice to the petitioner for the purpose of conducting an enquiry as per rules. The Board also appointed Sri. T.A. Abdul Basheer, Confidential Assistant, Kerala State Wakf Board, Ernakulam as interim Muthawalli in the place of the petitoner. The interim Muthawalli was also directed to frame a scheme for the administration of the Mosque. 2. The main contention raised in the writ petition is that without the leave of the District Court, Ernakulam which appointed the petitioner as the Manager of Kanjiramattom Mosque, Ext.P10 order could not have been issued. The petitioner contends that the Board had no jurisdiction or authority to pass Ext.P10 order without WPC No.32328/2010 2 the previous permission of the District Court and therefore, Ext.P10 is liable to be set aside on that short ground. 3. The Board has filed a counter affidavit contending inter alia that the petitioner has not maintained true and correct income and expenditure account of the Mosque and that he has also not paid the contribution payable to the Board in spite of repeated orders and directions issued by the District Court. It is also stated that the order impugned was passed upon receipt of Ext.R2(A) complaint addressed to the Hon'ble District Judge, Ernakulam, which was forwarded to the Board by the District Judge along with a letter dated 14.1.2009. The Board has also contended that the permission of the District Court, which appointed the petitioner, is not required for the reason that the Manager is also the Muthawalli of the Mosque and the Board is empowered to appoint and remove Muthawallis. The Board has also contended that the Explanation to sub section (1) of section 32 of the Wakf Act, 1995 (hereinafter referred to as 'the Act' for short) recognizes the right of the Board to appoint and remove Muthawallis even in relation to Wakfs in respect of which any scheme has been made by any court of law, whether before or after the commencement of the Act. The petitioner has filed a reply affidavit WPC No.32328/2010 3 refuting the allegations levelled against him in the counter affidavit. 4. I heard Sri.K.Ramakumar, learned Senior Advocate appearing for the petitioner and Sri. A.A.Abul Hassan, learned standing counsel appearing for the Kerala Sate Wakf Board. I have also considered the pleadings and the materials on record. It is not in dispute that the petitioner was appointed as Manager of Kanjiramattom Mosque in terms of a scheme framed by the Anjikaimal Court in O.S. No.97 of 1101 ME. The said scheme was approved by Ext.P2 judgment. Paragraphs 3, 4 & 11 of the scheme read as follows: “3. The management of the Mosque shall be conducted by a manager appointed by the Anjikaimal District on a monthly pay not exceeding Rs.10/-. 4. He shall be subject to the control of the District court of Anjikaimal and shall invariably follow the pathivu in appendix-D. He shall be liable to be dismissed only by an order of the court. 11. The District court of Anjikaimal shall have a general power of supervision over the temporal affairs of the Mosque and shall be competent to issue such orders as are necessary for safeguarding its interests.” (emphasis supplied) 5. It is evident from the scheme framed by the Anjikaimal District Court that the Manager of Kanjiramattom Mosque appointed WPC No.32328/2010 4 by the District Court, is subject to the control of the District Court and is liable to be dismissed only by an order of the court. It is not in dispute that before Ext.P10 order was passed placing the petitioner under suspension, the Board did not seek and obtain the leave of the District Court, Ernakulam which appointed the petitioner as the Manager. The explanation offered by the Board for not obtaining the leave of the court is that the petitioner who is the Manager of the Kanjiramattom Mosque is also its Muthawalli and that in view of the provisions contained in section 32 of the Act, the Board is empowered to appoint and dismiss Muthawallis even in respect of Wakfs in relation to which a scheme has been framed by a court of law. The relevant provisions of section 32 of the Act referred to and relied on by the learned counsel appearing for the Board read as follows: 32. Powers and functions 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 objects and for the purposes for which such wakfs were created or intended: WPC No.32328/2010 5 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. Explanation:- For the removal of doubts, it is hereby declared that in this sub-section, “Wakf” includes a wakf in relation to which any scheme has been made by any court of law, whether before or after the commencement of this Act. 32(2) Without prejudice to the generality of the foregoing power, the functions of the Boards 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 he 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 a wakf; (ii) in what manner the income of a wakf, 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 exit or has become incapable of WPC No.32328/2010 6 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 or 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 directions shall be given under the clause without giving the parties affected an opportunity of being heard. Explanation;- For the purpose of this clause, the powers of the Board shall be exercised- (i) in the case of 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 and Shia members in he Board and other circumstances, it appears to the Board hat 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 tits powers under this clause; (f) to scrutinise and approve the budgets submitted by mutawallis and to arrange for the auditing of accounts of wakf; (g) to appoint and remove mutawallis in accordance with the provisions of the Act. 6. The main contention raised by Sri. Abul Hassan, the learned standing counsel appearing for the Board is that in view of Explanation to sub section (1) of Section 32 extracted above, as the WPC No.32328/2010 7 Kanjiramattom Mosque is a Wakf, the Board can exercise the power to appoint and remove Muthawallis notwithstanding the fact that a scheme has been framed for administration of the Wakf by the Anjikaimal District Court. The learned counsel contended that the power to appoint and remove Muthawallis also carries with it the power to place Muthawallis under suspension and therefore it was not necessary for the Board to seek and obtain the leave of the District Court, Ernakulam before deciding to proceed against the petitioner. It is also contended that as the complaint against the petitioner was forwarded to the Board for necessary action along with Ext.R2(A) letter dated 14.1.2009, no further sanction of the District Court was required. The learned counsel also contended that as an enquiry is proposed to be held against the petitioner, the Board is also empowered to suspend the Muthwalli until the conclusion of the enquiry as provided for under section 64(5) of the Act. 7. Section 32(1) which is relied on by the Board stipulates that subject to any rule that may be made under the Act, the general superintendence of all Wakfs in a State shall vest in the Board established for the State. The explanation to section 32(1) according to me only means that the Act would apply to Wakfs in relation to WPC No.32328/2010 8 which any scheme has been made by any court of law before or after the commencement of the act. The Explanation only clarifies the position that the Act would apply even to such Wakfs. The Explanation does not in my opinion take away the effect of a scheme framed by a competent court or result in annulment of the scheme made by a competent court. The contention raised by the Board that in view of the Explanation to sub section (1) of section 32 it was not necessary for the Board to obtain the permission of the District Court before placing the petitioner under suspension, cannot therefore be sustained. 8. Paragraph 3 and 4 of the scheme framed by Anjikaimal District Court establishes beyond doubt that the Manager of Kanjiramattom Mosque is subject to control of the District Court and is liable to be dismissed only by an order of the court. What the Board proposes to do by Ext.P10 is to appoint another Manager in the place of the petitioner and also to conduct an enquiry against him. The Board has by impugned order also placed him under suspension. In my opinion, even though the petitioner may be the Muthawalli of Kanjiramattom Mosque in his capacity as the Manager thereof, the Board was not justified in placing him under suspension WPC No.32328/2010 9 without the express permission of the District Court, Ernakulam. Ext.R2(A) letter dated 14.1.2009 does not in my opinion authorise the Board to place the petitioner under suspension or to initiate action for his removal. All that the learned District Judge had stated while forwarding the complaint was that the complaint is being forwarded to the Board for necessary action. The term necessary action has to be understood as action in accordance with the scheme framed and approved by the court and not action as the Board feels like taking, irrespective of the provisions of the scheme. The Board ought to have in my opinion on receipt of the complaint which was sent along with Ext.R2(A) letter, moved an appropriate application in the District Court, Ernakulam for permission to place the petitioner under suspension and to remove him and also to take such further action, if the Board were of the opinion that the petitioner is not fit to continue in office as Manager. That having not been done, I am of the considered opinion that the decision evidenced by Ext.P10, cannot be sustained. In the result, I allow the writ petition and quash Ext.P10. It is clarified that nothing contained in this judgment will stand in the way of the Board from moving the District Court concerned for permission WPC No.32328/2010 10 to place the petitioner under suspension or to remove him from the post of Manager of the Kanjiramattom Mosque or to hold an enquiry against him. The contentions of both sides as regards that aspect of the matter are kept open. P.N.RAVINDRAN, (JUDGE) vps WPC No.32328/2010 11 WPC No.32328/2010 12