Allowed

Darul Uloom Islamic Cultural Centre v. Kerala State Wakf Board

Kerala HC8 Nov 2016WP(C)/26639/2007

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging an assessment order and name change imposed by the Kerala State Wakf Board. Relying on the distinction between trusts and wakfs, the Court held that without evidence of control by the Board, the impugned orders were set aside.

What did the court decide?

The impugned orders Ext.P3, P9, and P10 issued by the Kerala State Wakf Board were set aside.

Darul Uloom Islamic Cultural Centre Vs Kerala… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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TUESDAY, THE 8TH DAY OF NOVEMBER 2016/17TH KARTHIKA, 1938

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WP(C).No. 26639 of 2007 (U)

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PETITIONER(S) :

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DARUL ULOOM ISLAMIC CULTURAL CENTRE, REPRESENTED BY ITS PRESIDENT, DR.K.V.AHAMMED BAVAPPA, P.O.KAPPUR, PALAKKAD DISTRICT - 679 552.

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BY ADV. SRI.TPM.IBRAHIM KHAN

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RESPONDENT(S) :

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THE KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P. ROAD, KALOOR, ERNAKULAM, KOCHI-682 017.

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BY ADV. SRI.M.M.SAIDU MUHAMMED, S.C

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 26639 of 2007 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: A PHOTOSTAT COPY OF THE REGISTRATION CERTIFICATE NO. 227/90 ISSUED BY THE REGISTRAR UNDER THE PROVISIONS OF SECTION 12 OF THE TRAVANCORE COCHIN LITERARY, SCIENTIFIC & CHARITABLE SOCIETIES REGISTRATION ACT 1995.

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EXHIBIT P2: A PHOTOSTAT COPY OF THE PROCEEDINGS NO. 03-7038/RA DATED 05.02.2001 ISSUED BY THE RESPONDENT.

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EXHIBIT P3: A PHOTOSTAT COPY OF THE PROCEEDINGS NO. A4-7038/RA DATED 10.09.2005 ISSUED BY THE RESPONDENT.

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EXHIBIT P4: A PHOTOSTAT COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 29.11.2005.

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EXHIBIT P5: A PHOTOSTAT COPY OF THE ORDER ASSESSMENT NO. A-4/7038/RA DATED 01.02.2006 ISSUED BY THE RESPONDENT.

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EXHIBIT P6: A PHOTOSTAT COPY OF THE RECEIPT WITH SENIOR NO. 1282 (REGISTRATION NO. 7038/RA) DATED 25.03.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER.

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EXHIBIT P7: A PHOTOSTAT COPY OF THE ORDER NO. B3-7038/CR DATED 04.12.2006 ISSUED BY THE RESPONDENT.

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EXHIBIT P8: A PHOTOSTAT COPY OF THE REPLY SUBMITTED BY THE PETITIONER IN PETITION NO. B3-7038/CR DATED 04.12.2006 BEFORE THE RESPONDENT.

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EXHIBIT P9: A PHOTOSTAT COPY OF THE ORDER IN B3-7038/CR DATED 13.04.2007 ISSUED BY THE RESPONDENT.

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EXHIBIT P10: A PHOTOSTAT COPY OF THE ORDER NO. B6-7038/RA DATED 24.05.2007 ISSUED BY THE RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

P.V.ASHA, J.

W.P.(C) No.26639 of 2007

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Dated this the 8^th day of November, 2016

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JUDGMENT

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The petitioner challenges Ext.P5 order of assessment as well as Exts.P9 & P10 orders of the Kerala State Wakf Board. By Ext.P5 order dated 1.2.2006, the Wakf Board directed the petitioner to remit a sum of Rs.25,106/- (Rupees Twenty five thousand one hundred and six only) towards contribution under section 72(6) of the Wakf Act, 1995 for the years 2002-03, 2003-04 and 2004-05. By Ext.P9 order, the Wakf Board changed the name of the petitioner as Darul Uloom Islamic Cultural Centre, without considering the objection raised by the petitioner. By Ext.P10 the Wakf Board directed the petitioner to furnish the statement of accounts for the period from 2002-03 to 2006-07.

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The petitioner submits that it is a society registered under the Provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and it had constructed a mosque for the convenience of the students of the school which it runs. Since the mosque was registered with the respondents as Darul Uloom Islamic Cultural Centre Jama Ath Pally, the respondent Wakf Board unilaterally made an assessment under section 72(6) of the Act and directed the

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W.P.(C) No.26639 of 2007

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petitioner to remit the contributions. It is also their case that even the name itself of the petitioner was changed unilaterally for which the Wakf Board does not have any jurisdiction. The petitioner's case is that it has been running various institutions like English Medium Schools affiliated to CBSE; a mosque was constructed for the benefit of the students adjacent to the school in a property donated by a Philanthropist, which was registered as per Ext.P2 on 5.2.2001. According to the petitioner even though it was registered as a Wakf, the petitioner is not getting any income from the Wakf property and the mosque is being run out of the funds of the petitioner. Hence Wakf Board does not have any jurisdiction to issue any orders of assessment and to realise the contribution as well as to change its name without any request from the petitioner.

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Though the respondents have entered appearance through the standing counsel, they have not filed any counter affidavit.

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In view of the contention of the petitioner regarding the jurisdiction of Wakf Board, it is necessary examine the definition of Wafk. The Wakf is defined under section 3 clause (r) as follows:

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“wakf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-

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i. a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

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ii. a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;

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iii. “grants”, including mashrat-ul-khidmat for any purpose

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W.P.(C) No.26639 of 2007

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recognised by the Muslim law as pious, religious or charitable; and

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iv. a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the wakf shall be spent for education, development, welfare and such other purposes as recognised by Mulsim landlord, and “wakf” means any person making such dedication.

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According to the petitioner it is not bound to remit any contribution. Section 72 provides for the annual contribution payable to the Board. According to this the mutawalli of every Wakf, shall pay annual contributions to the Board for the services rendered by it to the Wakf, not more than 7% of the net annual income derived by the Wakf, as prescribed, in case the net annual income is not less than five thousand rupees. Sub section 6 of Section 72 provides that on failure to submit return of net annual income of the Wakf within the prescribed time or when the return submitted is incorrect or false, the Chief Executive Officer may assess the net annual income of the Wakf Board to the best of his judgment or revise the net annual income as shown in the return submitted by the mutawalli. The proviso also provides that such assessment has to be done with notice to the mutawalli.

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Learned counsel for the petitioner relied on the judgment of the Apex Court in Maharashtra State Board of Wakfs v. Shaikh Y.B.Chawla [2012 (2)KLT (SN) 107(SC)] in which it was held that there is a vast difference between Muslim Wakfs and Trusts created by

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W.P.(C) No.26639 of 2007

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the Muslims and the Wakf properties dedicated to God. As far as Trusts are concerned, it is held that the properties are not vested in God and the trustees can deal with the properties of the Trust, as per the Trust deed for the benefit of the Trust and beneficiaries. According to the petitioner, the petitioner society is running the school and charitable organization and petitioner is entitled to deal with its properties for the benefit of the Trust and its `beneficiaries. Wakf Board cannot have any control over the same and make any assessment as done in the impugned orders. If at all there is any dispute with respect to the Wakf, it has to be decided under the provisions of the Wakf Act and Rules, with notice to the parties.

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As the respondents have neither controverted the contentions of the petitioner nor produced any relevant materials to show that the properties of the petitioner are brought under the control of the Wakf Board or to show that they are entitled to control them in any manner and in the light of the judgment supra of the apex court relied on, by the learned Senior counsel, the orders impugned in this writ petition i.e Exts.P3, P9 and P10 are liable to be set aside and I do so.

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The writ petition is accordingly allowed.

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Sd/-

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P.V.ASHA JUDGE

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rkc

Darul Uloom Islamic Cultural Centre v. Kerala State Wakf Board

Case brief

What is this about?

What did the court decide?

Darul Uloom Islamic Cultural Centre v. Kerala State Wakf Board

Case brief

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