Allowed

Kavungal Parambil Abootty v. Hamsa Bin Jamal

Kerala HC2 Mar 2021CRP(WAKF)/27/2018

Case brief

AI extract

What is this about?

The Kerala High Court set aside an order of the Wakf Tribunal directing revision petitioners to civil prison for violating an order of status quo. The Court held that evidence was ambiguous regarding the violation and that the Tribunal proceeded on surmises rather than evidence.

What did the court decide?

The order dated 16.12.2017 in I.A. No.42 of 2017 in O.S. No.7 of 2016 on the files of the Wakf Tribunal, Kozhikode, directing detention in civil prison was set aside.

Kavungal Parambil Abootty Vs Hamsa Bin… — Constitutional and Fundamental Rights | Kerala HC (2021)

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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 S.V.BHATTI

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

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CRP(WAKF).No.27 OF 2018

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AGAINST I.A. NO.42/2017 IN O.S. NO.7/2016 DATED 16-12-2017 OF WAKF TRIBUNAL, KOZHIKODE

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REVISION PETITIONERS/RESPONDENTS 1 & 2 IN I.A. NO.42/2017 IN O.S. 7/2016:

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1 KAVUNGAL PARAMBIL ABOOTTY S/O. MUHAMMED, BEHIND CHITHRA SAGAR, PAN BAZAR, THIRUR

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2 KAVUNGAL PARAMBIL SHAREEF S/O. MUHAMMED BEHIND CHITHRA SAGAR, PAN BAZAR, THIRUR

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BY ADV. SMT.DEEPA NARAYANAN ADV.ASHA MARIAM MATHEW

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RESPONDENTS/PETITIONERS & RESPONDENTS 4 & 5:

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1 HAMSA BIN JAMAL S/O JAMAL, SECRETARY MOUNATHUL ISLAM ASSOCIATION PONNANI NAGARAM P.O., MALAPPURAM, PIN- 679 583

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2 MOUNATHUL ISLAM ASSOCIATION REP.BY ITS SECRETARY HAMSA BIN JAMAL S/O. JAMAL CHENGANATH- H ERUMAPPETTY P.O.,

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C.R.P. (Wakf) No.27/18

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THRISSUR

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3 SECRETARY THIRUR MUNICIPALITY KOT AMSOM DESOM, THIRUR MALAPPURAM DISTRICT PIN- 676101

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4 CHIEF EXECUTIVE OFFICER KERALA STATE WAKF BOARD, V.I.P.ROAD, KALOOR, KOCHI - PIN- 682018.

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R1 & R2 BY ADV. SRI.BENOJ C AUGUSTIN R1 BY ADV. SRI.RAFEEK V.K. R1 BY ADV. SRI.SAIJO HASSAN R3 BY SRI.P.VENUGOPAL, SC, TIRUR MUNICIPALITY R1 BY ADV. SRI.VISHNU BHUVANENDRAN R4 BY ADV. T.P SAJID R4 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD

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THIS CRP (WAKF) HAVING BEEN FINALLY HEARD ON 02.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.R.P. (Wakf) No.27/18

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ORDER

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Dated this the 2^nd day of March, 2021

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Bechu Kurian Thomas, J.

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The revision petitioners were the defendants 1 and 2 in O.S. No.7 of 2016 on the files of the Wakf Tribunal, Kozhikode. They challenge the order dated 16.12.2017 in I.A. No.42 of 2017 in O.S. No.7 of 2016. By virtue of the impugned order, the revision petitioners as well as the 3^rd respondent in this revision petition have been directed to be detained in civil prison for a term of one month each for having violated an order of status quo issued by the Tribunal in the said suit.

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The grievance of the revision petitioners is that the order of status quo was never violated by them and on the contrary violation, if at all done, was by another person, apart from the order of status quo being vague and not conclusive. The impugned order was further attacked on the ground that identity of the property covered by

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the status quo order was not clear and in the absence of any conclusive proof on the nature of violation, as could be discernible from an ambiguous identity of property, no order of detention could

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C.R.P. (Wakf) No.27/18 -:4:-

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have been ordered against the revision petitioners. It was also contended that the Tribunal ought to have disposed of I.A. No.96 of 2016, in which a counter affidavit was filed seeking to vacate the interim order of status quo at least along with the petition for violating the order of status quo. Failure to consider the objections have also caused prejudice to the revision petitioners.

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Respondents 1 and 2, on the other hand, contended that the Advocate Commissioner had clearly reported the nature of violation that was committed by the revision petitioners and there was no dispute as regards the identity of the property. The witnesses who were examined as PW1 and PW2 had clearly spoken about the violation committed by the revision petitioners and thus it was pleaded that the revision is only to be dismissed. The learned counsel for the respondents 1 and 2 relied upon the decision in A.Venkatasubbiah Naidu v. S.Chellappan and Others [(2000) 7 SCC 695] in support of his contentions.

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We have heard Adv.Asha Mariam Mathew for the revision petitioners as well as Adv.Rafeek V.K. and Adv T.P.Sajid for the respondents.

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We have considered the rival contentions. At the outset

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C.R.P. (Wakf) No.27/18

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itself we respectfully agree with the proposition laid down in A.Venkatasubbiah Naidu v. S.Chellappan and Others [(2000) 7 SCC 695]. In fact, the revision petitioners had filed counter to I.A. No.96 of 2016 to vacate the interim order of status quo. Instead of passing orders on the said application, the trial court considered the said petition, which according to us was not proper in the circumstances of the case.

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The order alleged to have been violated is dated 25.2.2016 passed in I.A. No.96 of 2016. The nature of the order is to maintain status quo as on 17.2.2016. The Advocate Commissioner, who had visited the property, had filed Ext.C1 report on 17.2.2016. The revision petitioners had appeared before the court in response to the notice on 18.2.2016 and sought time to file counter affidavit. On 25.2.2016, since the Tribunal found that no counter affidavit was filed, the order of status quo was issued. From the date of filing of the Advocate Commission report on 17.2.2016 till the status quo order was passed on 25.2.2016, there were no orders restricting any person from doing anything on the plaint schedule property. There arises an ambiguity as to whether the alleged constructions were carried out during the interregnum till the order of status quo was

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C.R.P. (Wakf) No.27/18

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passed. This ambiguity creates a dent in the evidence of the plaintiffs to prove violation of the order of status quo.

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It is also seen that the revision petitioners had informed the Advocate Commissioner that the alleged constructions were carried out by another person, who is not a party to this case. The trial court proceeded on surmises rather than evidence to come to the conclusion that constructions in the plaint schedule property were carried out by the revision petitioners. On the nature of the evidence adduced, we are of the view that the detention of the revision petitioners in civil prison is not warranted in the nature of the circumstances and as such, the impugned order dated 16.12.2017 is liable to be set aside.

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Accordingly, we set aside the order dated 16.12.2017 in I.A. No.42 of 2017 in O.S. No.7 of 2016 on the files of the Wakf Tribunal, Kozhikode and allow this revision petition.

Sd/-

S.V.BHATTI JUDGE

Sd/-

BECHU KURIAN THOMAS JUDGE

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vps

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/True Copy/ PS to Judge

Kavungal Parambil Abootty v. Hamsa Bin Jamal

Case brief

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Kavungal Parambil Abootty v. Hamsa Bin Jamal

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