Dismissed

Kadukkiyam Nallakoya v. Thoopiyakkal Koya

Kerala HC11 Feb 2021OP (WAKF)/6/2015

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions challenging Wakf Board orders appointing a Mutawalli in Lakshadweep. The Court held the Board lacked jurisdiction to decide the dispute, which concerns appointment between rival families, and set aside the orders.

What did the court decide?

Ext.P15 in O.P.(Wakf) No.6/2015 and Ext.P9 in O.P.(Wakf) No.25/2015 set aside with liberty to approach appropriate authority within six weeks.

Kadukkiyam Nallakoya Vs Thoopiyakkal Koya — Writ and Judicial Review | 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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THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

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OP (WAKF).No.6 OF 2015(R)

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PETITIONER :

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KADUKKIYAM NALLAKOYA, AGED 78 YEARS, S/O.MUHAMMED KOYA, KADUKKIYAM HOUSE, AMINI ISLAND, LAKSHADWEEP, MUTHAVALLY, OLD JUMA MASJID, AMINI ISLAND, LAKSHADWEEP.

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BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA

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RESPONDENTS :

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1 THOOPIYAKKAL KOYA, AGED 76 YEARS, S/O.ALLAKOYA, THOOPIYAKKAL HOUSE, AMINI ISLAND LAKSHADWEEP.

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2 LAKSHADWEEP STATE WAKF BOARD, KAVARATHY, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER

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R1 BY ADVS.SRI.P.B.KRISHNAN

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SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN

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SRI.S.RADHAKRISHNAN, SC,LAKSHADWEEP ADMN

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R2 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA

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THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 11.02.2021, ALONG WITH OP (WAKF).25/2015(R), THE COURT ON THE SAME DAY PASSED THE FOLLOWING :

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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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 THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

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OP (WAKF).No.25 OF 2015

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PETITIONER :

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THOOPIAKKAL KUNHI, AGED 76 YEARS, S/O. THOOPPIAKKAL AISHABI, THOOPPIAKKAL HOUSE, AMINI ISLAND, UNION TERRITORY OF LAKSHADWEEP, PIN-682 552.

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BY ADVS. SRI.M.P.RAMNATH SRI.BEPIN PAUL SRI.P.RAJESH (KOTTAKKAL) SRI.SHALU VARGHESE SMT.S.SANDHYA SMT.UMA R.KAMATH SEI.M.VARGHESE VARGHESE

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RESPONDENTS :

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1 LAKSHADWEEP STATE WAKF BOARD, KAVARATHY, UNION TERRITORY OF LAKSHADWEEP, PIN-682 555, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.

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2 KADUKKIYAM NALLA KOYA, AGED 78 YEARS, S/O. MUHAMMED KOYA, KADUKKIYAM HOUSE, AMINI ISLAND, LAKSHADWEEP, PIN-682 552.

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R1 BY SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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R1-2 BY ADV. SRI.P.MARTIN JOSE R1 BY ADV. SRI.P.PRIJITH R1 BY ADV. SRI.S.SREEKUMAR SR. R1 BY ADV. SRI.S.RADHAKRISHNAN, SC, LAKSHADWEEP ADMN

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R1 BY ADV. SRI.THOMAS P.KURUVILLA

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R2 BY ADV. SRI.S.SREEKUMAR (SR.)

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THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 11.02.2021, ALONG WITH OP (WAKF).6/2015(R), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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JUDGMENT

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Dated this the 11th day of February 2021

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Bechu Kurian Thomas, J.

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Both these writ petitions challenge the same order and hence these are disposed of together by this judgment. O.P.(Wakf) No.6/2015 is treated as the leading case.

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The dispute relates to the Mutawalli of Ameni Pazhaya

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Juma-ath Palli. Disputes on who should be appointed as the Mutawalli have been arising time and again. The present dispute allegedly arose on account of the death of one Saidh Muhammed Koya of Kadukkiyam family.

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The dispute is between the karnavars of the Kadukkiyam family on the one side and the Thoopiyakkal family on the other side. By Ext.P15 order in O.P.(Wakf) No.6/2015, the 2^nd respondent - Lakshadweep State Wakf Board passed an order appointing Sri.Thoopiyakkal Koya as the Mutawalli from 15.02.2015 till 14.02.2016 and thereafter for the next one year appointed Kadukkiyam Nallakoya as the Mutawalli. This arrangement was directed to continue in the same manner for the years to come, with

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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the mutawalliship alternating between Sri.Thoopiyakkal Koya and Kadukkiyam Nallakoya. Ext.P15 further provided that on the death of one of the Mutawalli, the surviving Mutawalli will continue till his death and thereafter the Board was entitled to appoint receiver Mutawalli for a period of six months.

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Ext.P15 was subjected to a challenge in two writ petitions, O.P.(Wakf) No.6/2015 and O.P.(Wakf) No.7/2015. In the said cases, this Court passed an order on 11.02.2015, staying further proceedings pursuant to Ext.P15 order. It is the case of the petitioner in O.P.(Wakf) No.6/2015 that pursuant to the interim order dated 11.02.2015, he had been continuing as the Mutawalli.

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In the meantime the first respondent in O.P.(Wakf) No.6/2015 (who was the petitioner in O.P.(Wakf) No.7/2015 representing the Mutawalli from the Thooppiyakkal family) expired and hence O.P.(Wakf) No.7/2015 was withdrawn. Claiming to be the Karanavar of Thoopiyakkal family, O.P.(Wakf).No.25/2015 was filed by Thoopiyakkal Kunji challenging Ext.P9 in that case and also for a direction to consider Ext.P1 application filed before the State Wakf Board requesting him to be appointed as the Mutawalli.

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It is also apposite to mention at this juncture that

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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while the original petitions were pending consideration before this Court and during the existence of the stay order mentioned above, dated 11.02.2015, the 2^nd respondent issued an order invoking Section 63 of the Wakf Act (for short, 'the Act) and appointed a temporary Mutawalli, along with three persons to assist him.

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We have heard Adv.Martin Jose, the learned counsel appearing for the petitioner in O.P.(Wakf) No.6/2015, Adv.M.P.Ramnath appearing for the petitioner in O.P.(Wakf) No.25/2015 as well as the learned Standing Counsel for the Wakf Board Adv.S.Manu.

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It is true that a dispute regarding appointment of a Mutawalli is beyond the jurisdiction of the Wakf Board. Since the prolonged dispute has been keeping the position of the Muthawalli of the Ameni Pazhaya Juma-ath Palli shrouded in dispute for decades, we are of the view that, Ext.P15 has been issued without authority or jurisdiction since the same could not have been decided by the Board. Taking note of the lack of jurisdiction in issuing Ext.P15, we are of the view that the parties are to be relegated to

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the remedy of approaching the appropriate authority in accordance with law as per the provisions of the Wakf Act.

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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As regards the temporary arrangement that is sought to be carried out by the order of the Wakf Board on 11.11.2020, it is seen that the said order was intended to overcome the situation till the pending cases are disposed of. Since this Court had by order dated 11.02.2015 stayed all further proceedings pursuant to Ext.P15, it was not within the jurisdiction of the Wakf Board, to have issued the order dated 11-11-2020 appointing a Mutawalli temporarily even without obtaining orders from the Court. Taking note of the manner in which orders were passed by the Wakf Board,

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the learned Standing Counsel also concedes that the said order dated 11.11.2020 was without jurisdiction and that the Board could not have passed such an order without taking note of the factual situation available on land.

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In view of the above, we set aside Ext.P15 in O.P. (Wakf) No.6/2015 and Ext. P9 in O.P.(Wakf) No.25/2015 and give liberty to the parties to move appropriate forum in accordance with law, within a period of six weeks from today for their respective reliefs. In the event of such an application being filed by any of the parties, the Authority concerned shall consider the same and pass appropriate orders in accordance with law in a time bound manner.

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It is needless to observe that the order dated

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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11.11.2020 was only interim in nature and was, from the very face of the order, expected to continue only till the disposal of these writ petitions. Since we have already found that the order dated 11.11.2015 was without authority on account of the interim stay granted by this Court on 11.02.2015, while dismissing both the writ petitions, we reserve liberty of the petitioners to file appropriate applications before the jurisdictional forum, who shall thereafter pass appropriate orders. We make it clear that we have not entered into any findings on merit nor shall our observations in this judgment, be considered for any purpose whatsoever on merits.

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The original petitions are allowed subject to the above observations.

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Sd/-

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S.V.BHATTI, JUDGE

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Sd/-

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BECHU KURIAN THOMAS, JUDGE

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RKM

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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APPENDIX OF OP (WAKF) 6/2015

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE 1955 DATED 2-2-19	CIVIL APPEAL NO.28 OF 55
EXHIBIT P2	TRUE COPY OF THE DATED 25-8-1968	GAZETTE NOTIFICATION
EXHIBIT P3	TRUE COPY OF THE 1940 DATED 10-6-1	ORDER IN C.S.NO.22 OF 940
EXHIBIT P4	TRUE COPY OF THE	DOCUMENT NO.52 OF 1970
EXHIBIT P5	TRUE COPY OF THE SETTLEMENT OFFICE	PROCEEDINGS OF THE R DATED 18-11-1974
EXHIBIT P6	TRUE COPY OF THE AMINI SRO	DOCUMENT NO.15/2002 OF
EXHIBIT P7	TRUE COPY OF THE 2012 OF THE EXECU	ORDER IN M.C.NO.1-05- TIVE MAGISTRATE
EXHIBIT P8	TRUE COPY OF THE OP(C)NO.2812/2012 OF KERALA	ORDER IN OF HON'BLE HIGH COURT
EXHIBIT P9	TRUE COPY OF THE THE 1ST RESPONDEN RESPONDENT	APPLICATION FILED BY T BEFORE THE 2ND
EXHIBIT P10	TRUE COPY OF THE 1ST RESPONDENT	STATEMENT FILED BY THE
EXHIBIT P11	TRUE COPY OF THE BY THE PETITIONER	COUNTER STATEMENT FILED
EXHIBIT P12	TRUE COPY OF THE 25-5-2014 FILED B THE CHAIRMAN	APPLICATION DATED Y THE PETITIONER BEFORE
EXHIBIT P13	TRUE COPY OF THE IN FAVOUR OF THE	VAKALATH DATED 3-3-2012 KUNHIKOYA THANGAL
EXHIBIT P14	TRUE COPY OF THE	MEMO DATED 14-6-2013
EXHIBIT P15	TRUE COPY OF THE	ORDER DATED 23-1-2015

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[OP (WAKF).6/2015 & OP (WAKF).25/2015]

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¶83

APPENDIX OF OP (WAKF) 25/2015

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	COPY OF THE APPLICATION DTD.19.6.2015 WITH COPY OF CHALAN NO.399 FOR RS.250/- PAID FOR PUBLICATION CHARGES WITH THE POSTAL REGISTERED RECEIPT AFFIXED THERE UPON.
EXHIBIT P2	COPY OF THE JUDGMENT DTD.26.2.1974 OF THE HON'BLE SUBORDINATE JUDGE COURT LAKSHADWEEP, KAVARATTY IN OS NO.6/1973 (ORIGINAL 23/1958, TAHSILDAR, AMINI).
EXHIBIT P3	COPY OF THE JUDGMENT DTD.1.6.1979 IN AS NO.213/1974 OF THIS HON'BLE HIGH COURT.
EXHIBIT P4	COPY OF THE CERTIFIED COPY OF THE ORIGINAL APPLICATION DTD.20.2.1940 WITH THEIR STATEMENTS ALSO RECORDED ALSO RECORDED THERE UPON BY THE MANAGER, AMINI ISLAND GIVEN BY KANDANGALAM KIDAVU KOYA AND THOOPIYAKKAL SAILANEE BEEVI.
EXHIBIT P5	COPY OF THE APPLICATION DTD.10.6.1940 SUBMITTED BY KANDANGALAM KIDAVU KOYA AND THOOPIYAKKAL SAILANEE BEEVI, BEFORE THE MANAGER, AMINI ISLAND FOR WITHDRAWING EXT.P4 APPLICATION.
EXHIBIT P6	COPY OF THE ORDER OF MANAGER AMINI ISLAND DTD.10.6.1940 DISMISSING EXT.P4 APPLICATION RECORDING EXT.P5 WITHDRAWAL PETITION.
EXHIBIT P7	COPY OF THE COMPROMISE DEED (RAZI PATHRA ADARAM) DTD.14.3.2002 REGISTERED AS 15/2002 SRO AMINI BETWEEN KADIKKIAM MUHAMMED KOYA HAJI AND THOOPPIAKKAL KOYA.
EXHIBIT P8	COPY OF THE PLAINT IN OS NO.6/2015 BEFORE THE HON'BLE SUB COURT, AMINI.
EXHIBIT P9	COPY OF THE ORDER DTD.23.1.2015 IN WPC NO.16/2013 OF THE 1ST RESPONDENT.

Kadukkiyam Nallakoya v. Thoopiyakkal Koya

Case brief

What is this about?

What did the court decide?

Kadukkiyam Nallakoya v. Thoopiyakkal Koya

Case brief

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