Dismissed

Nallattutodika Moideenkutty v. Kerala State Waqf Board

Kerala HC2 Dec 2019WP(C)/27399/2019

Case brief

AI extract

What is this about?

This court dismissed a writ petition where the petitioner, claiming Muthawalli status, sought restraint on the Waqf Board from passing orders without an opportunity to produce evidence. The court directed the petitioner to approach the Waqf Tribunal through appeal instead.

What did the court decide?

Writ petition dismissed with liberty to approach the Waqf Tribunal by way of appeal against the order dated 09.10.2019.

Nallattutodika Moideenkutty Vs Kerala State Waqf Board — Property and Title | 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 C.K.ABDUL REHIM

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941

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WP(C).No.27399 OF 2019(Y)

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PETITIONER

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NALLATTUTODIKA MOIDEENKUTTY AGED 77,

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S/O. MUHAMMED KUTTY, KANNADIPPADI P.O., VENGARA, MALAPPURAM DISTRICT, PIN-676 304.

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BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH

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RESPONDENTS

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1 KERALA STATE WAQF BOARD VIP ROAD, KOCHI, PIN-682 017, REPRESENTED BY ITS CHAIRMAN.

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2 THE CHIEF EXECUTIVE OFFICER KERALA STATE WAQF BOARD, VIP ROAD, KOCHI, PIN-682 017.

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3 THE DIVISIONAL WAQF OFFICER KERALA STATE WAQF BOARD, DIVISIONAL OFFICE, KSEB COMPLEX, MANJERI, MALAPPURAM DISTRICT, PIN-676 121.

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4 ELLIKODAN MOHAMMED S/O. ABU HAJI, ELLIKODAN HOUSE, KANNATTIPADI P.O., VENGARA, MALAPPURAM, PIN-676 304.

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R1-2 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD R4 BY ADV. SRI.R.RAMADAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).27399/19

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C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.

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W.P.(C).27399/2019 -------------Dated : 2^nd December, 2019

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JUDGMENT

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C.K.Abdul Rehim, J.

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1.There exists a dispute between the petitioner and

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the 4^th respondent with respect to the 'Muthawalliship' of “Kannattipadi Kothamkulam Mosque”. With respect to the said dispute a proceedings was pending before the Kerala State Waqf Board, the 1^st respondent herein. According to the petitioner, a society under the name and style “Kannattipadi Hidayathul Muslimeen Sangham” was registered for the purpose of assisting the Muthawalli. But according to the petitioner he is the 'Muthawalli' now administering affairs of the Waqf in question. Earlier, his grand-father and father were the Muthawallis of the Waqf. The petitioner submitted an application before the 2^nd respondent for registering the Waqf, as per Ext P3.

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He also submitted another application as per Ext P4 for getting himself registered as the “Muthawalli' of the Waqf. Proceedings were initiated by the Waqf Board on the basis of the said applications. The 4^th respondent submitted objections contending that, that the petitioner and others are unauthorisedly occupying the post of 'Muthawalli' and is managing the Waqf properties without any authority. The 4^th respondent also submitted an application for registration of the Waqf. In the meanwhile, the petitioner authorized his son to manage the affairs of the Waqf, as per Ext P6 letter. Before the Waqf Board, in the above said proceedings, the petitioner's son was appearing in person. Contention of the petitioner is that, on 24.9.2019 when the petitioner's son appeared, the Board, without hearing him, had taken up the matter for passing orders. Thereafter the petitioner engaged a counsel and on his request the matter was posted to 1.10.2019. According to the petitioner, on 1.10.2019 so many documents were produced before

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W.P.(C).27399/19

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the Waqf Board and time was sought for production of further documents. But the Board without allowing further opportunity to the petitioner, concluded the hearing and posted the matter for pronouncing orders to 16.10.2019, under and undue bias. It is contended that, if orders in the proceedings is passed without affording adequate opportunity to the petitioner, it will cause severe prejudices. Hence the petitioner seeks for a direction from this court against the 1^st respondent, for restraining them from passing orders in the matter, without granting some more time to the petitioner to adduce evidence, for which he sought at least one month's time.

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2.When the writ petition came up for consideration on 15.10.2019, this court granted an interim stay with respect to further proceedings of the Waqf Board, for a period of one month.

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3.The 2^nd respondent had filed counter-affidavit

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contending that, both the applications filed by the petitioner as well as by the 4^th respondent were posted for consideration before the 1^st respondent Board at its camp sitting at Kozhikode. Initially the matter was posted on 12.3.2019. The petitioner filed counter-affidavit in the matter and it was adjourned to 18.6.2019. The 4^th respondent also filed counter-affidavit along with documents. The 4^th respondent thereafter filed I.A.100/2019 for issuing direction to the petitioner herein for production of documents. Thereafter the matter was adjourned to 6.8.2019. The 4^th respondent filed argument notes on 6.8.2019 and the petitioner was not present on that day. Therefore the matter was adjourned again to 24.9.2019. Thereafter the petitioner filed I.A.138/2019, to which the 4^th respondent had filed counter-affidavit. The matters were posted for hearing to 1.10.2019. From 1.10.2019 it was adjourned to 9.10.2019, when the 4^th respondent had produced documents. On 9.10.2019 a third party had filed an impleading application,

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W.P.(C).27399/19

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which was dismissed by the Board. According to the

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2^nd respondent, after hearing the parties on that day the matters were disposed of through a separate order written. However, because of the interim stay granted by this court, the order was not communicated to the parties.

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4.The 4^th respondent had also filed counter-

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affidavit. The 4^th respondent contended that, the petitioner had participated in the hearing conducted on 9.10.2019. According to the 4^th respondent, there is no justification for the petitioner to allege that the case was posted for orders on 16.10.2019. The petitioner had deliberately suppressed the posting of the case on 9.10.2019. Along with the counter-affidavit the 4^th respondent had produced the copy of the 'proceeding sheet' of the 1^st respondent Board as well as the order purported to have been passed on 9.10.2019. Surprisingly, is is a certified copy, which is produced. The petitioner also conceded that, he

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also got a certified copy of the order. But on a perusal of the order, it does not contain the cause title of the petitions or any appendix. When this court had passed an interim order restraining the Board from proceeding with further steps, how the Board could issue a certified copy of an order, which is not at all communicated to the parties, that too without incorporating the cause title or appendix. Further it is pertinent to note that, the Chairman alone had signed the order and it does not bear signature of any other members. But it was seen attested by the Junior Superintendent of the 1^st respondent Board. We may express our concern regarding the style of functioning of the 1^st respondent Board in such type of judicial proceedings.

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5.Adv.Ziyad Rahman, learned counsel appearing for the petitioner, conceded that, there was no willful suppression with respect to the posting of the matter on 9.10.2019 and it was only a communication

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gap between his counter-part and himself. It is conceded that there was a posting of the matter on 9.10.2019. But according to the petitioner, no orders were passed on that day and the matters were adjourned for pronouncing orders to 16.10.2019. However, copy of the 'proceedings sheet' produced would indicate that, the impleading application filed by the third party was dismissed on that day and the original petition was also dismissed, vide separate orders to be passed. Now it is evident that a detailed order was prepared by the Board and it was kept without issuing to the parties, because of the interim stay passed by this court. It is also conceded that, both the sides have filed argument notes in the matter before the 1^st respondent. However, the order which is allegedly passed on 9.10.2019 is not under challenge before this court.

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6.Under the above mentioned circumstances we take note of the fact that the petitioner has got an

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effective statutory remedy of appeal against the order passed by the Waqf Board before the Waqf Tribunal. If he has got any contention that there occurred any denial of opportunity before the Waqf Board, either in the matter of hearing or in the matter of production of documents, all those grounds can be agitated at the appellate stage. The Tribunal, being the 1^st Appellate authority, is having coherent powers to look into all such grounds. Therefore we are of the opinion that the writ petition can be closed by granting opportunity to the petitioner to challenge the order passed by the Waqf Board on 9.10.2019.

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7.Hence the above writ petition is hereby dismissed with liberty reserved to the petitioner as mentioned above. The 1^st respondent Board, through the 2^nd respondent, shall issue proper certified copy to the petitioner as well as to the 4^th respondent, within a period of two weeks from the date of receipt of a copy of this judgment. Either

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of the parties will be at liberty to file appeal

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from that order before the Waqf Tribunal.

Sd/-

C.K.ABDUL REHIM

Judge

Sd/-

T.V.ANILKUMAR

Judge

Mrcs/3.12.

W.P.(C).27399/19

APPENDIX

EXHIBITS:
EXHIBIT P1	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 27.3.2018.
EXHIBIT P2	TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 12.9.2018.
EXHIBIT P2 (a)	TRUE COPY OF THE BYELAWS OF THE SOCIETY.
EXHIBIT P3	TRUE COPY OF THE APPLICATION IN THE PRESCRIBED FORMAT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR REGISTERING THE WAQF.
EXHIBIT P4	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR REGISTERING THE PETITIONER AS THE MUTHAWALLI.
EXHIBIT P5	TRUE COPY OF THE STATEMENT SUBMITTED BY THE 4TH RESPONDENT ON 17.6.2019.
EXHIBIT P6	TRUE COPY OF THE AUTHORIZATION LETTER PERMITTING SRI. NAJEEB NALLATTUTHODIKA, TO CARRY OUT THE ACTIVITIES OF THE MOSQUE ON HIS BEHALF, DATED 31.3.2018.
EXHIBIT P7	TRUE COPY OF THE LIST OF DOCUMENTS DATED 1.10.2019.
EXHIBIT R4(e)	TRUE COPY OF THE STATEMENT DATED 17.06.2019 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE WAKF BOARD IN THE ABOVE MATTER.
EXHIBIT R4(b)	TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 4TH RESPONDENT IN THE ABOVE MATTER BEFORE THE WAKF BOARD, DATED 22.09.2019.
EXHIBIT R4(c)	TRUE COPY OF THE APPLICATION DATED 31.03.2018 SUBMITTED BY THE PETITIONER BEFORE THE WAKF BAORD OBTAINED BY THE 4TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT R4(d)	TRUE COPY OF THE PROCEEDINGS SHEET OF THE WAKF BOARD IN E.P. NO.4645/2018.

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EXHIBIT R4(e) TRUE COPY OF THE ORDER DATED 09.10.2019 IN E.P.NO.4645/2018.

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True copy

Nallattutodika Moideenkutty v. Kerala State Waqf Board

Case brief

What is this about?

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Nallattutodika Moideenkutty v. Kerala State Waqf Board

Case brief

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