Disposed

C.Abdu v. Central Waqf Council

Kerala HC25 Nov 2019WP(C)/31836/2019

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition seeking directions to recover loans and correct Muthavally entries for a Wakf. The Court held that since the administration dispute is pending before the Wakf Board on a tribunal remand, no immediate judicial interference is warranted regarding management or recovery steps, leaving such matters to the Board.

What did the court decide?

Writ petition disposed at the time of admission without issuing any direction to the respondents to recover loans or rectify entries pending the tribunal remand.

C.Abdu Vs Central Waqf Council — Constitutional and Fundamental Rights | 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 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

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WP(C).No.31836 OF 2019(D)

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PETITIONER:

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C.ABDU

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AGED 72 YEARS, S/O MARAKKAR, CHERUVALAPPIL HOUSE, MANGALAM AMSOM, KOOTTAYI AMSOM, P.O.KOOTTAYI, TIRUR TALUK, MALAPPURAM DISTRICT-676562.

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BY ADV. SRI.K.P.SHEREEF

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RESPONDENTS:

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1 CENTRAL WAQF COUNCIL REPRESENTED BY ITS SECRETARY, CENTRAL WARD BHAVAN, P-13 & P14, PUSHP VIHAR, SECTOR NO.6,OPP.FAMILY COURT, SAKET,NEW DELHI-110017.

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2 KERALA STATE WAKF BOARDS, REPRESENTED BY CHIEF EXECUTIVE OFFICER, NEAR JAWAHARLAL NEHRU INTERNATIONAL STADIUM, V.I.P.ROAD, KALOOR,KOCHI-682017.

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3 KUNNATHAKATH PUTHIYIL MUHAMMED FAISAL, S/O PADINJARE VAKKAYIL ABDULLAKUTTY HAJI, P.O.KOTTAYI-676562 TIRUR TALUK, MALAPPURAM DISTRICT.

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4 PADINJARE VAKKAYIL ADUL AZEEZ MUSALIAR, S/O.KUNHIBAVA HAJI, P.O.KOOTAYI-676562, TIRUR TALUK, MALAPPURAM DISTRICT.

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OTHER PRESENT:

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SC, WAQF BOARD- SRI. T.P.SAJID

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P (C) No.31836/2019

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

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W.P (C) No. 31836 OF 2019

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DATED THIS THE 25^th DAY OF NOVEMBER, 2019

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J U D G M E N T

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Abdul Rehim, J:

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The above writ petition is filed seeking direction against respondents 1 & 2 to initiate immediate proceedings against the 3^rd respondent to realize the loan amount disbursed to the 'Koottayi Puthiya Jumaath Palli Wakf' (hereinafter referred to as the 'wakf concerned'). Relief is also sought for to direct the 2^nd respondent to rectify the entry of the 3^rd respondent's name as 'Muthavally' of the wakf concerned; and to add the name of “Makhdoo Miyya Arabi College, and Puthiya Juma-ath Palli Paripalana Committee” as the Muthavally. Inter alia, direction is sought to the 2^nd respondent to take immediate steps for restraining the 3^rd respondent from acting as the Muthavally of the wakf concerned.

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According to the petitioner, the wakf was administered by committee constituted in the year 1993, with late Haji P.V.

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W.P (C) No.31836/2019

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Abdullakutty Moulavi as President. He was also acting as the 'Khasi'. It is stated that, after the death of Abdullakutty Moulavi, the 4^th respondent took charge as 'Khasi' in the year 2010 and the son of Abdullakutty Moulavi, who is the 3^rd respondent herein was elected as the President of the committee. It is stated that, in the year 2016 the wakf concerned had availed a loan from the 1^st respondent for construction of an Auditorium. When income started to flow from the Auditorium constructed, the 3^rd respondent declared himself as the sole 'Muthavally' of the wakf and had taken charge of the administration of the affairs of the wakf, in an illegal manner. The 2^nd respondent had wrongly recorded the 3^rd respondent as the sole 'Muthavally' of the wakf concerned, is the contention. It is alleged that the 3^rd respondent is misusing huge amounts derived in the wakf and is not repaying the loan availed from the 1^st respondent. The allegation is that the respondents 1 & 2 are not taking any effective steps for realizing the loan amount from the 3^rd respondent. Hence the writ petition is filed seeking the reliefs as mentioned above.

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From the records produced along with the writ petition it is evident that, the wakf concerned is registered with the 2^nd respondent since the year 1961, with registration No.2493 RA.

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W.P (C) No.31836/2019

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As admitted, since 12-03-2010 the 3^rd respondent is acting as the 'Muthavally' of the wakf and the 4^th respondent is acting as the 'Khasi'. Evidently, the 3^rd respondent had filed a suit against the 4^th respondent before the Wakf Tribunal as OS No.33/2018, seeking injunction restraining the 4^th respondent from interfering with the administration of the wakf. It is further evident that the 2^nd respondent Wakf Board had passed an order on 29-06-2018 removing the 3^rd respondent from the Muthavalliship and deputing an Executive Officer for administering affairs of the wakf concerned. The 3^rd respondent had challenged the said order before the Wakf Tribunal, Kozhikode as OA No.4/2019 (originally filed as OA 15/2018 before the erstwhile Wakf Tribunal / III^rd Additional District and Sessions Court, Kozhikode). The Tribunal had disposed of the matter through Ext.P8 judgment, dated 2^nd August 2019. Order of the Wakf Board dated 29-06-2018 was set aside and the matter was remanded for fresh consideration by the 2^nd respondent, inorder to consider whether appointment of an Executive Officer for the administration of the wakf is warranted or not. From Ext.P8 judgment it is evident that the petitioner herein was elected as the Secretary to a committee known as the

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W.P (C) No.31836/2019 -5-

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“Koottayi Puthiya Juma-ath Palliparipalana Committee”.

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According to the 3^rd respondent, the said committee was dissolved and he became the sole 'Muthavally'. Therefore the 3^rd respondent contended before the Tribunal that the order passed by the Executive Officer to the extent of ousting him from the Muthavallishi, is not legal and proper. However, it is evident that, now the question regarding eligibility for administration of the wakf by the 3^rd respondent, is a matter pending decision before the Wakf Board, pursuant to the remand made by the Wakf Tribunal. Therefore the second relief sought for in this writ petition to direct the 2^nd respondent to rectify the alleged wrong entry in the records by removing the name of the 3^rd respondent, cannot be allowed in this writ petition. The petitioner will be at liberty to agitate those issues before the Wakf Board, either in the matter which is remanded by the Tribunal or by approaching the Board with any fresh application to that effect. In view of the remand made by the Tribunal and in view of the pendency of the matter for fresh decision before the Wakf Tribunal (2^nd respondent), the relief sought for to the extent of directing the 2^nd respondent to restrain the 3^rd respondent from acting as Muthavally, also cannot be allowed. It is for the Wakf Board to

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consider the entire matter and to pass appropriate orders either final or interim, in the matter.

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The only question left open for consideration is the relief sought for seeking direction to the respondents 1 & 2 to recover the defaulted amounts in the loan availed by the wakf concerned from the 1^st respondent. According to the petitioner, the loan was availed by the committee to which he was the Secretary. Eventhough it is stated that the respondents 1 & 2 are failing in taking any effective steps to realize the amounts, the petitioner had produced no materials to show that any demand is raised against the petitioner or any coercive steps for recovery was initiated against him. It is evident from Ext.P9 that the petitioner had submitted a letter to the 1^st respondent intimating that the 3^rd respondent is not permitting the petitioner to deal with any affairs of the wakf, since he is acting as the sole 'Muthavally' of the wakf. In Ext.P9 the petitioner had also raised allegation of misuse of funds of the wakf. We are of the considered opinion that it is for the respondents 1 & 2 to take appropriate steps for realization of the arrears if any, due from the wakf concerned or to prevent the alleged misuse, on the basis of any specific complaint received pointing out such

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misuse. It is not at all warranted for this court to issue any direction to the respondents 1 & 2 to realize amounts if any, in arrears from the 3^rd respondent. If the wakf concerned had availed any loan from the 1^st respondent and if the wakf had defaulted payment of the same, it is for the 1^st respondent to take appropriate steps, probably through the 2^nd respondent.

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Under the above mentioned factual scenario, we are of the considered opinion that interference by this court, in exercise of power vested under Article 226, is not at all warranted. It is evident that matter relating to the right for administration of the wakf is now pending adjudication before the Wakf Board. Learned Standing Counsel appearing for the 2^nd respondent had brought to our notice that the Kerala State Wakf Board is not in existence as of now, because of expiry of its term. An Administrator appointed by the Government is in the helm of affairs of the Wakf Board; and steps are being pursued to elect a new Board. Needless to observe that the Wakf Board which may be elected, or the Administrator who is in-charge of the Board, shall take appropriate steps to finalize the matter on the basis of the remand made by the Tribunal, at the earliest possible. It is also left open to the Board / Administrator to take

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necessary interim measure, if it is convinced that there is any misappropriation or maladministration of the affairs of the wakf concerned.

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Under the above mentioned circumstances the above writ petition is hereby disposed of at the time of admission itself, based on the directions and observations mentioned as above.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

AMG

W.P (C) No.31836/2019

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE WITH REGISTRATION NO.2493/RA ISSUED BY STATE PUBLIC INFORMATION OFFICER,KERALA STATE WAQF BOARD.

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EXHIBIT P2	TRUE COPY OF THE BYE-LAW OF THE MAKHDOO MIYYA ARABI COLLEGE AND PUTHIYA JUMA-ATH PALLI PARIPALANA COMMITTEE WITH REGISTRATION NO.207/93 DATED 5.5.1993.
EXHIBIT P3	TRUE COPY OF THE MINUTES BOOK WITH THE TITLE, MARKAZ MADKDOO MIYYATHUL ISLAMIA KOOTTAYI.
EXHIBIT P4	TRUE COPY OF THE STATEMENT OF JOINT ACCOUNT OF THE COMMITTEE NO.4015711000070 OF KERALA GRAMIN BANK,KOOTTAYI BRANCH FOR THE PERIOD 21.1.2014 TO 30.6.2017.

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EXHIBIT P5	TRUE COPY OF THE COMPLAINT DATED 14.12.2016 FILED
	BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN THE
	LETTE HEAD OF THE MUTHAVALLY COMMITTEE.

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EXHIBIT P6	TRUE COPY OF THE FILED BY THE 3RD BOARD,MANJERI DIV	EXPLANATORY LETTER DATED 6.10.2017 RESPONDET BEFORE THE STATE WAQF ISION.
EXHIBIT P7	TRUE COPY OF THE THE WAQF INSPECTO	ENQUIRY REPORT DATED 4.1.2018 OF R.
EXHIBIT P8	TRUE COPY OF THE O.A.N0.4/2019 OF	ORDER DATED 2.8.2019 IN WAQF TRIBUNAL,KOZHIKODE.
EXHIBIT P9	TRUE COPY OF THE 5/10/2019 TO THE	LETTER SENT BY THE PETITIONER ON 1ST RESPONDENT.

C.Abdu v. Central Waqf Council

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C.Abdu v. Central Waqf Council

Case brief

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