IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 CRP.No. 119 of 2010() --------------------- OP.5/2007 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER(S)/R2 to R6: ------------------------------------ 1. KODIYATHUR MANNIL UNNI MOYIN KUTTY, S/O. MOHAMMED, KODIYATHUR AMSOM DESOM, P.O.NELLIKKAPARAMBA, KOZHIKODE. 2. CHERUKUNNATH KOYAMMUTTY, S/O. KUNJALIKUTTY, KAKKAD AMSOM DESOM, P.O.NELLIKKAPARAMBA, KOZHIKODE 3. KALLADIYIL IMBICHALI, S/O.ABDU RAHIMAN, KAKKAD AMSOM DESOM, P.O.NELLIKKAPARAMBA, KOZHIKODE 4. KNIYATH ABDUL NAZAR, S/O.ABOOBACKER, KAKKAD AMSOM DESOM, P.O.NELLIKKAPARAMBA, KOZHIKODE 5. METHAN VEETTIL MAMMAD,S/O.ALAVI, KODIYATHUR AMSOM DESOM, KOZHIKODE. BY ADV. SRI.R.RAMADAS RESPONDENT(S): R1,R7 TO R9 AND PETITIONERS -------------------------------------------------------- 1. KERALA WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, ERNAKULAM. 2. V.E.MOYIN HAJI,S/O. VEERANKUTTY HAJI, KUMARANALLUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. CRP.119/10 -2- 3. K.C.MUHAMMED, S/O. KAMMUKUTTY MUSALIYAR, KANNATTIL HOUSE, P.O. NELLIKKAPARAMBA, KAKKAD AMSOM DESOM,KOZHIKODE 4. P.ABDUL KADHER, S/O. MOOSAKUTTY, PUTHIYOTTIL HOUSE, P.O.NELLIKKAPARAMBA, KAKKAD AMSOM DESOM, KOZHIKODE 5. KOYAMMU, S/O. KUNHAMMED, PRESIDENT, NELLIKKAPARAMBA JUMA-ATH PALLI COMMITTEE. NELLIKKAPRAMBA, P.O. MUKKAM, (VIA)KAKKAD AMSOM AND DESOM KOZHIKODE DISTRICT. 6. M.A.ABDULLA, S/O. ABDULLA RAZAK MUSALIYAR, SECRETARY, NELLIKA PARAMBIL JUMA-ATH COMMITTEE, NELLIKKAPRAMBA, P.O.MUKKAM, (VIA) KAKKAD AMSOM AND DESOM, KOZHIKODE DISTRICT. ADV. SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R1 SRI.M.S.NARAYANAN SRI.A.A.ABUL HASSAN, SC, WAKF BOARD FOR R1 SRI.M.GOPIKRISHNAN NAMBIAR FOR ADDL.RES. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, ALONG WITH CRP NO.263 OF 2010 & OP(WT) NO.4 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 ------------------------------------------------ Dated this the 11th day of October, 2010 ORDER Gopinathan, J The challenge before us in the above two Civil Revision Petitions is the order of appointment of Advocate Sri.P.C.Najeeb as the interim Mutawalli of Nellikkapparambu Juma-Ath Masjid by the Wakf Board pending dispute regarding the office of Mutawalli. While the Wakf was smoothly managed by a committee elected by the members of the Mahal, there arose dispute between members. There was grouping in between members and ultimately a suit as O.S.739/89 was filed before the Munsiff's Court, Kozhikode. The suit was dismissed. Dispute prevailed. While so, C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -2- the members arrived at an understanding. Accordingly, Sri.V.E.Moyin Haji, the second respondent in C.R.P.119/10 was appointed as a Mutawalli and he was managing the affairs of the Masjid. While he holding so, in 2003, some of the members of the Mahal convened a meeting. A Managing Committee as well as a Mutawalli was elected. Thereupon, the service of the second respondent in CRP.119/10 as Mutawalli was terminated. On the other hand, the Wakf Board appointed V.E.Moyin Haji as the Mutawalli. That appointment was challenged before the Wakf Tribunal in O.P.2/04. The Wakf Tribunal, while allowing the O.P. set aside the order of the Wakf Board appointing Moyin Haji as the Mutawalli and the matter was remanded to the Wakf Board for C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -3- fresh disposal. The order in O.P.2/04 was challenged before this Court, but not successful. Some of the parties also approached for framing a scheme by filing O.P. Nos.58/07 and 86/07. In O.P.86/07, a petition was filed praying for appointing a Mutawalli stating that the post of the Mutawalli had become vacant. Thereupon, the Wakf Board appointed Advocate Sri.P.C.Najeeb as the Mutawalli till the disposal of the proceedings before the Wakf Board. Assailing the said order, O.P.5/07 was filed. Moyin Haji, who was the 7th respondent in O.P.5/07, filed O.P.11/07 seeking an order to appoint him as Mutawalli. By a common order, O.P.5/07 was allowed after arriving at conclusion that there arose no vacancy of the Mutawalli. O.P.11/07 was dismissed for the C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -4- reason that there is objection for a group of members in appointing Moyin Haji as Mutawalli. It is that order now assailed in both the revision petitions. 2. While the dispute is getting stronger between the parties, it was brought to the notice of the Wakf Board that some urgent repairs are badly in need, especially regarding toilet and washing place. Therefore, by Ext.P2 order dated 11/05/10 assailed in O.P.4/10, the Wakf Board authorised an officer of the Board to do the urgent repairs. Assailing that order, O.P.16/10 was filed before the Wakf Tribunal, Kozhikode. The Writ Petitioner also filed petition as I.A.297/10 to stay Ext.P2 order. That petition was dismissed by Ext.P4 order. Ext.P2 order as well as Ext.P4 order C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -5- is assailed in O.P.(WT).4/10 under Article 227 of the Constitution of India. 3. We heard the learned counsel appearing either side and perused the orders impugned. It is not disputed that Advocate Sri.P.C.Najeeb was appointed as interim Mutawalli in exercise of the powers vested on the Wakf Board under Section 63 of the Wakf Act which reads as follows:- Sec.63:- “When there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the Wakf, or where the right of any person to act as mutawalli is disputed, the board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.” 4. Going by the orders impugned in the revision petitions, it is seen that the Tribunal below interfered with the order appointing C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -6- Advocate P.C. Najeeb as Mutawalli solely for the reason that there was no vacancy of the office of the Mutawalli. In fact, it is not disputed from the Bar that main dispute is regarding the management of Wakf and as to who shall be the Mutawalli. The facts stated earlier speak volumes. Since the parties are fighting tooth and nail, appointment of any person from a warring group without resolving the dispute may aggravate the dispute. In case, parties to dispute could not arrive at a consensus, it is always advisable to appoint a neutral person till the dispute is resolved. Whenever there is a dispute regarding the right of a person to act as a Mutawalli, Wakf Board is empowered to appoint a Mutawalli under Section 63. That aspect was not considered by the C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -7- Tribunal below and thus, the order impugned is vitiated. We find that since there is serious dispute regarding the person to hold the office of Mutawalli and the parties are warring regarding the office of the Mutawalli, the Wakf Board was justified in appointing Advocate Sri.P.C.Najeeb as interim Mutawalli till the matter is finally decided by the Board. It is not disputed from either side that Advocate P.C. Najeeb is anyway disqualified to hold the office of the Mutawalli for an interim period. There is no case that Sri.Najeeb has got any favours or disfavours with any group. In the above circumstances, we find that the Tribunal below was not justified in interfering with the order appointing Advocate Sri.P.C.Najeeb as Mutawalli for the interim period till the matter C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -8- before the Wakf Tribunal is disposed of. So we find that the order impugned in the revision petitions are liable to be set aside and the order of the Wakf Board appointing Advocate Sri.P.C. Najeeb as interim Mutawalli is to be restored. The claim of the petitioner in CRP.263/10 is also devoid of merits as such appointment would aggravate the dispute. 5. As regards O.P.(WT) No.4/10, it is not disputed that urgent repairs are to be done regarding the latrine and washing place. The question is as to how it is to be done. Since we hold that the order appointing Advocate Sri.P.C.Najeeb as Mutawalli is liable to be restored, irrespective of the grounds alleged to assail the orders, we find that it would be just and C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -9- appropriate to allow him to conduct the repair work. We are not going to the merits of the contention that Ext.P2 order impugned in O.P. (WT) No.4/10 was passed on a holiday or not because we find that irrespective of the date of the order, urgent works are to be done and that cannot be postponed to a future date. Since we uphold the order to appoint Adv. Sri.P.C.Najeeb as Mutawalli, let him do it. Advocate Sri.P.C.Najeeb may also explore as to whether any of the members of the Mahal or any outsider is prepared to sponsor the execution of repair work and if so, the repair work shall be done at the expense of the sponsor so found out. In case no sponsor could be found out, the repair work shall be done out of the funds of the Wakf. C. R. P. Nos.119 & 263 of 2010 and O. P. (WT) No.4 of 2010 -10- 6. We notice that by Ext.P1 order a Single Bench of this Court has given direction to the Wakf Board to dispose of the matter within a time frame. In the above circumstances, we are not fixing any time frame regarding the disposal of the matter by the Wakf Board. Revision petitions and O.P. would stand disposed as above. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-