Dismissed

K. Noushad, v. Kerala Wakf Board

Kerala HC30 Jan 2019CRP/651/2010

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a civil revision petition challenging a Wakf Tribunal order that upheld the Wakf Board's scheme for property administration. The Court affirmed the Tribunal's jurisdiction under Sections 32 and 69 of the Wakf Act, rejecting contentions regarding scheme maintainability.

What did the court decide?

Revision petition dismissing the suit challenging the Wakf Board's scheme was dismissed.

K. Noushad, Vs Kerala Wakf Board — Pension and Retirement Benefits | Kerala HC (2019)

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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 K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940

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CRP.No. 651 of 2010

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AGAINST THE ORDER/JUDGMENT IN OS 64/2006 of WAKF TRIBUNAL, KOZHIKODE DATED 06-10-2010

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REVISION PETITIONER/S:

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K. NOUSHAD, AGED 1 YEARS S/O. KODITHODI UNNEN KUTTY, MORAYOOR AMSOM AND DESOM, ERNAD TALUK,, MALAPPURAM DISTRICT.

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BY ADVS. SRI.SAJU.S.A SRI.K.C.KIRAN

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RESPONDENT/S:

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1 KERALA WAKF BOARD, REPRESENTED BY ITS EXECUTIVE MEMBER, OFFICE OF THE WAKF BOARD, KALOOR P.O., KOCHI-682011.

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2 KODITHIDIKA MOHAMMED BASHEER S/O.MUHAMMED, ARIMBRA P.O.,, MORAYOOR AMSOM, ARIMBA DESOM,, ERNAD TALUK, MALAPPURAM DISTRICT-673 638.

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3 KODITHODI MOHAMMEDKUTTY S/O.UNNIMOIDEEN HAJI, ARIYADU,, THIRUVALI P.O., VANDOOR, MALAPPURAM DISTRICT-, 679 348.

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4 MUDARIS MORAYUR JUMA-ATH PALLI MADRASSA, MORAYUR P.O.,, PIN-673 649.

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5 PRESIDENT MORAYUR JUMA-ATH PALLI COMMITTEE, MORAYUR P.O.,, PIN-673 649.

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CRP.No. 651 of 2010

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6 KHASI OF MORAYUR MORAYUR P.O., PIN-673 649.

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7 PROF.B.MOHAMMED UNNI S/O.KUNHAHAMMED HAJI, RETIRED DEPUTY, DIRECTOR OF COLLEGIATE EDUCATION,, MONGAM P.O., MALAPPURAM DISTRICT-673 642.

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8 KODITHODIKA AHAMMED ALIAS BAPPU MORAYUR AMSOM, ARIMBRA DESOM, FEROKE P.O., ERNAD TALUK, MALAPPURAM DISTRICT-673 638.

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9 K.K.ALIKOYA ADVOCATE MELANGADI P.O., (VIA) KONDOTTY,, KONDOTTY AMSOM, MELANGADI DESOM,, MALAPPURAM DISTRICT673 648.

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10 KODITHODI UNNI MOHAMMED S/O.KODITHODI UNNIMOIDEEN HAJI,, MOROOTTIL HOUSE, MORAYUR P.O.,, RECEIVER APPOINTED BY COURT, PIN-673 649.

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11 KODITHODI MOIDEEN BIN AHAMMED S/O.LATE K.U.AHAMMEDKUTTY HAJI,, RESIDING AT MORAYUR AMSOM AND DESOM OF, ERNAD TALUK, MALAPPURAM DISTRICT,, PIN-673 649.

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12 K.E.SAINUDHEEN FAIZAL S/O.KODITHODI AHMMEDKUTTY,, FAROKE AMSOM, NALLUR DESOM, FEROKE P.O., KOZHIKODE TALUK, PIN-673 631.

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BY ADVS. SRI.K.SANEESH KUMAR SMT.GEETHA P.MENON SRI.K.JAYESH MOHANKUMAR SRI.P.B.KRISHNAN SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN (SR.)

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.01.2019,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP.No. 651 of 2010

O R D E R

K. Harilal,J.

The Revision Petition has been filed challenging the judgment dismissing O.S.No. 64/2006 of the Wakf Tribunal, Kozhikode. The above suit was filed to set aside the order dated 07.11.1995 passed by the Wakf Board, deciding to settle a scheme for the administration of Wakf. According to the averments in the Original Petition, the scheme framed by the Wakf Board is not in conformity with the Wakf Deed and it is against the provisions of deed. The order passed by the Wakf Board nominating 14 persons to new committee is illegal. The persons nominated by the Wakf Board are disqualified and they are persons who grabbed or helped to grab the wakf property in benami names. The wakf deed contains several impracticable terms, which never can be taken into effect. The scheme framed is unworkable and

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required to be modified. The property vested with wakf is not properly identified and mentioned in the scheme. With the aforesaid averments, they filed OP and prayed for setting aside the order of the Wakf Board dated 07.11.1995 and the scheme framed as per the order.

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Defendants 8, 11 and 12 filed a written statement and other defendants remained ex parte. Defendants 8 and 11 supported the pleadings in the plaint and contended that the scheme framed is against the object of the wakf and is liable to be set aside or modified. They also contended that 14 persons nominated by the Board are disqualified persons, who were responsible for grabbing wakf property in the name of others.

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The defendant No.12 alone is the contesting defendant and he filed a written statement contending that the suit is not maintainable. According to them, the Kerala Wakf Board, exercising powers conferred on it under Section 69 of the Wakf Act, has framed a scheme for the administration and management of the wakf and

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its property. The plaintiffs in the suit were aware of the proceedings and submitted a draft scheme and suggestions. They did not file an appeal as provided in the Wakf Act challenging the order passed on 07.11.1995 allowing the prayer for framing a new scheme and therefore, they are not entitled to challenge the same after 11 years. The Wakf Board framed a scheme in accordance with the object of the wakf for its proper administration.

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The 11^th defendant, who is presently possessing and managing wakf properties, is the Receiver, who is interested in continuing his possession and management of the property indefinitely and at his instigation the suit happened to be filed. The Wakf Board has framed a scheme after inviting and considering draft schemes and objection from all interested persons. The interest of lineal defendants of the families of Uneen Haji, Ahammedkuty Haji, Mammed Kutty Haji and Unnimariumma have been taken care of. Likewise, the

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mode of electing the other members were also provided in the scheme. The allegation that some of the objects are unworkable is incorrect. With the aforesaid contentions, they prayed for dismissal of the original petition.

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On the aforesaid pleadings, the Wakf Tribunal has framed 8 issues. Both parties adduced evidence as Exts.A1 to A5 and B1 to B35. The defendant was examined as DW1. No oral evidence was adduced by the parties.

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After considering the evidence on record, the Wakf Tribunal dismissed the said O.P on a finding that the Wakf Board has jurisdictional power to frame scheme for the management of the Wakf and for appointing a committee under Section 32 of the Wakf Act. The legality and correctness of the aforesaid finding are challenged in this C.R.P.

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The learned counsel for the petitioner advanced arguments highlighting the ground raised in the

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CRP.No. 651 of 2010

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memorandum of Revision Petition.

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The parties are shown as referred to in the impugned judgment. The plaintiff has prayed for setting aside the order passed by the 1^st defendant Board dated 07.08.1995 in the enquiry proceedings. By the aforesaid order, Wakf Board has decided to settle a scheme. The plaintiff contended that the Wakf Board has no such power to settle a scheme for the management of the Wakf. But going by Section 69 of Wakf Act, we find that the Wakf Board on satisfaction on its own motion or on application of not less than 5 persons having interest in the Wakf, frame a scheme for administration of Wakf, after consultation with Muthavally or the applicant in the prescribed manner. The proviso to Sub Section 3 of Section 69 provides that any person aggrieved by an order made under Section 69 may within 60 days from the date of order, prefer an appeal to the Tribunal and after hearing such appeal, the Tribunal may confirm, for reverse or modify the order. Thus as rightly held by the

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Tribunal a conjoined reading of Section 32(3) and 69(3) would show that the suit is provided against the scheme settled and appeal is provided against the order passed within 60 days for settling the scheme. Therefore, the court below is justifyied in finding that the plaintiff has to file an appeal against the order in the proceedings and a suit to set aside the order is not maintainable.

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The plaintiff has vehemently challenged the appointment of some of the members of the Wakf Board to the committee constituted on the ground that the persons nominated by the Wakf Board are not competent or entitled to be nominated as the members of the committee, in view of their proved misconduct in the matter of grabing Wakf property, by employing illegal and found methods. In order to prove the said allegation, they have pressed into service Exhibits-B16, B17, B22, B23, B24, B25 and B29 etc. According to them, the aforesaid document would prove that the aforesaid members of committee joined in hands with others to grab Wakf

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property. The allegation against them is that they have obtained purchase certificate with respect to Wakf property invoking the provisions under the Land Reforms Act from the Land Tribunal. As rightly observed by the court below mere fact that some of the members of the committee have obtained the purchase certificate from the Land Tribunal invoking the provisions under the Land Reforms Act cannot be taken as a ground disqualify them from nominating as members of the committee by Wakf Board.

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The next question to be considered is whether there is any illegality or impropriety in taking a decision to frame scheme for the Wakf by the Wakf Board. Going by the impugned judgment we find that the Wakf Tribunal has examined the entire circumstances which compelled the Wakf Board to frame a scheme, for a Wakf. The original suit was filed before the Sub Court, Kozhikode as O.S.No.108 of 1952 for settling the scheme. That suit was decreed and the same was confirmed by the

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judgment passed in A.S.No.50 of 1964. Thereafter, Civil Appeal.No. 310 of 1971 was filed before the Apex Court and on 27.02.1985 the Apex Court dismissed the Civil Appeal with a finding that scheme shall be framed for the management of the Wakf by the Wakf Board and also directed that till the framing of scheme receiver will continue in management under the existing terms until he applies for discharge; and there is also a direction to the receiver to hand over the charge after proper scheme is settled by the Wakf Board, to the person empowered to manage under the scheme or other persons as may be directed by the Board. Pursuant to the said judgment passed by the Apex Court, an application was filed before the Wakf Board and Wakf Board conducted enquiry and ordered to frame scheme and directed the Secretary of the Board to submit draft scheme by the order dated 03.01.1991. After giving vide publicity and calling suggestion from the interested persons, a paper publication was made in Malayala Manorama dated

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01.01.1994. Some of the members submitted draft suggestions. After consolidating the draft scheme and suggestions, the Secretary of the Kerala Wakf Board prepared a scheme which was published in the noticeboard of the Board at Ernakulam and Calicut and objections were called for. The file produced by the Wakf Board contained draft scheme and suggestions made by parties including the plaintiff and defendants. The Wakf Tribunal verified the entire file and got satisfied as regards the procedure adopted by the Wakf Board for framing the scheme. Further the Wakf Board has passed an order appointing a committee to manage the Wakf as per clause 6A of the scheme for the administration of the Wakf till election in accordance with the scheme is conducted and the committee was appointed by the Wakf Board as an interim measure. Thereafter, as per the order of the Apex Court, the receiver was directed to hand over the charge after proper scheme is settled by the Wakf Board to the persons empowered to manage

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under the scheme for any other person as may be directed by the Wakf Board. Thus, on an analysis of the sequences of events from 1952 onwards which went up to the Supreme Court, we find that there is no illegality or impropriety in their procedure by which the Wakf Board has taken a decision to settle the scheme and further we find that there was compelling circumstances, more particularly in view of the direction of the Supreme Court, to settle such a scheme for the Wakf.

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As regards the challenge against the nomination of the committee, we find that, the nomination of committee for the administration of the Wakf is only an interim arrangement made by the Wakf Board and the Wakf Board has power to nominate such a committee to manage the Wakf Board as per Section 32 of the Wakf Act. The order appointing committee could have been challenged by the plaintiff in a properly filed appeal. Hence the suit filed challenging the appointment of committee was not maintainable also.

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Another contentions raised by the plaintiff is that before framing scheme the Wakf Board has not ascertained the properties available to carry out the object of the scheme. According to them the Wakf Board ought to have mentioned in the scheme, the properties available to the Wakf. As rightly observed by the Wakf Tribunal, there is no provision in the Wakf Act imposing a duty on the Wakf Board to conduct a survey of the properties available to the Wakf before framing a scheme for the management of the Wakf. It is to be borne in mind that the original Wakf deed contains the assets of the Wakf. Therefore, if any property mentioned in the original Wakf deed is alienated or encroached up on. The Wakf Board can initiate proceedings to recover those properties in accordance with Wakf Act. We are of the opinion that for recovering the property encroached by strangers or any other person, the particulars of the properties need not be mentioned in the scheme particularly, when the properties are specifically

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mentioned in the Wakf deed.

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Another contention is that Wakff Board has copied the same objective as contained in the original Wakf deed and the objectives mentioned in the Wakff deed is not practicable. As rightly observed by the Wakff Tribunal, as per Section 32(1)(e), the Wakff Board has power to direct utilization of any surplus income of a Wakf consistent with object of the Wakf and also to direct what manner income of a Wakf, the objectives of which are not evident from any written instrument, shall be utilised. Though they contended that some of the objectives of the scheme are impracticable, no evidence was adduced to prove the impracticability of those objectives. Thus we find that the plaintiff was failed to prove the impracticability of the objectives as contended by them.

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We have already found that there was no need to conduct a survey of the property which belongs to the Wakf before framing a scheme. In view of that matter we

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find that there is no need to frame a fresh scheme taking into account of the properties now available under the Wakf deed. Thus, the court below is justified in rejecting the second prayer also.

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In the above analysis we find that there is no illegality or impropriety in the findings whereby the Wakf Tribunal dismissed the suit. Hence, this Revision Petition filed against the dismissal of the suit also deserves to be dismissed and we do so.

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This Revision Petition is dismissed.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN JUDGE

rv & Dxy

K. Noushad, v. Kerala Wakf Board

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K. Noushad, v. Kerala Wakf Board

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