Dismissed

Thiruthummal Muhammed @ Bava v. the Kerala Wakf Board & Others

Kerala HC3 Nov 2011WP(C)/27647/2011

Case brief

AI extract

What is this about?

In a writ petition, the High Court held that Section 69(4) of the Wakf Act cannot be used to nullify a final judgment of the Tribunal or to reconsider an application regarding an order that has merged into the Tribunal's decree. The writ petition was dismissed.

What did the court decide?

No direction to the 1st respondent to consider the application under Section 69(4); writ petition dismissed.

Thiruthummal Muhammed @ Bava Vs the Kerala Wakf Board… — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933

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WP(C).No. 27647 of 2011(E)

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--------------------------

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PETITIONER(S):

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---------------------

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THIRUTHUMMAL MUHAMMED @ BAVA S/O.ALIKKUTTY, THIRUTHUMMAL HOUSE, MUTHAVALLI, CHERNOOR-PANAKKAT PALLI WAKF, P.O.VELIMUKKU, TIRURANGADI TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.M.KRISHNAKUMAR

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RESPONDENT(S): -----------------------

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1. THE KERALA WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, ERNAKULAM.

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2. ERAKKATU KATTIL SAIDALI, S/O.KUNHAMMAD, PANAKKAD, P.O.VELIMUKKU, MUNNIYOOR VILLAGE, TIRURANGADI TALUK.

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3. KUTHIREDATHU ABDURAHIMAN, S/O.MOIDEENKUTTY, PANAKKAD, P.O.VELIMUKKU, MUNNIYOOR VILLAGE, TIRURANGADI TALUK.

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4. KALUPADIKKAL SALIH, S/O.SAINUDHEEN HAJI, PANAKKAD, P.O.VELIMUKKU, MUNNIYOOR VILLAGE, TIRURANGADI TALUK.

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5. THIRUTHUMMAL ABDULLAH, S/O.ALAVI, CHERNOOR, PANAKKAD, P.O.VELIMUKKU, MUNNIYOOR VILLAGE, TIRURANGADI TALUK.

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SRI.A.A.ABUL HASSANM SC FOR R1

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC NO.27647/11

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1: A TRUE COPY OF THE APPLICATON FOR REGISTRATION OF WAKF DATED 5/11/1974.

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EXHIBIT P2: A TRUE COPY OF THE ENQUIRY REPORT DATED 17/1/1995.

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EXHIBIT P3: A TRUE COPY OF THE ENQUIRY REPORT DATED 12/6/1995.

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EXHIBIT P4: A TRUE COPY OF THE ORDER DATED 10/7/2001 OF THE KERALA WAKF BOARD.

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EXHIBIT P5: A TRUE COPY OF THE JUDGMENT DATED 28/2/2004 PASSED BY THE WAKF TRIBUNAL, KOZHIKODE.

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EXHIBIT P6: TRUE COPY OF THE APPLICATION DATED 27/9/2011 FILED BEFORE THE WAKF BOARD.

//TRUE COPY//

P.A. TO JUDGE

ANTONY DOMINIC, J. ================ W.P.(C) NO. 27647 OF 2011

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=====================

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Dated this the 3^rd day of November, 2011

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J U D G M E N T

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Ext.P4 is an order passed by the 1^st respondent exercising its powers under Section 69(1) of the Wakf Act. Against this order, petitioner's predecessor filed Appeal Suit No.11 of 2001. That appeal suit was dismissed by the Wakf Tribunal as per Ext.P5 judgment. This judgment was rendered as early as on 28^th of February, 2004 and the judgment has become final. Now the petitioner has filed Ext.P6 application dated 27^th of September, 2011 seeking cancellation of Ext.P4, invoking the power of the 1^st respondent under Section 69(4) of the Wakf Act, 1995. In this writ petition, what is sought for is a direction to the 1^st respondent to consider Ext.P6 application.

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I heard the learned counsel for the petitioner and also the learned standing counsel appearing for the 1^st respondent and considered the submissions made by both sides. As rightly contended by the learned counsel for the petitioner, Section 69(4) authorizes the Board to pass an order at any time to cancel or modify the scheme framed by it exercising the powers under

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:2 :

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WPC No. 27647/11

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Section 69(1) of the Act. It is this power, which is sought to be invoked by the petitioner by filing Ext.P6 application.

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In my view, such an application cannot be entertained in a case of this nature. As already seen, Ext.P4 order was passed by the Board as early as on 10^th of July, 2001 in exercise of its powers under Section 69(1) of the Act. It was aggrieved by this order that the petitioner's predecessor approached the Tribunal in terms of the proviso to Section 69(3). The said appeal was rejected by Ext.P5 judgment of the Tribunal and this judgment has attained finality. It is long thereafter that contending that while passing Ext.P4 order, the 1^st respondent did not advert to Exts.P1 to P3, that the petitioner has filed Ext.P6 application. This argument now pressed in service in Ext.P6 application was one which was available to the petitioner when the appeal filed before the Tribunal was considered.

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By this process, what is sought to be achieved by the petitioner is to nullify a final judgment passed by the Tribunal. The power under Section 69(4) cannot be made use of to nullify inter parte judgments, which have attained finality. That apart, by virtue of the appellate judgment of the Tribunal, the Board's order

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WPC No. 27647/11

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:3 :

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has merged into it and for that reason also, an application under Section 69(4) cannot be entertained, to cancel or modify such a non existing order. Therefore, I am of the view that the application filed by the petitioner is a misconceived one and cannot be directed to be considered.

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Writ petition is dismissed.

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ANTONY DOMINIC, JUDGE

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Thiruthummal Muhammed @ Bava v. the Kerala Wakf Board & Others

Case brief

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Thiruthummal Muhammed @ Bava v. the Kerala Wakf Board & Others

Case brief

What is this about?

What did the court decide?

What the court decided

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