Allowed

K.S. Muhammad Basheer v. Kodungallur Cheraman Juma Masjid Mahallu, Represented by Its President Dr Muhammed Sayeed P.A

Kerala HC3 Jun 2024CRP(WAKF)/5/2024

Case brief

AI extract

What is this about?

Plaintiffs in a Waqf Tribunal suit sought an interlocutory direction to convene the mahal general body and submit audited accounts including reconstruction spending. The Tribunal dismissed the IA treating it as a prayer to audit accounts, noting a Waqf Board audit order. The High Court held the Tribunal misread the prayer and passed a non-speaking order.

What did the court decide?

Impugned order dated 12.12.2023 set aside; Waqf Tribunal directed to dispose of I.A.No.572 of 2023 afresh with notice and opportunity of hearing.

K.S. Muhammad Basheer Vs Kodungallur Cheraman Juma… — Writ and Judicial Review | Kerala HC (2024)

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CRP (WAKF) No.5 of 2024

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

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MONDAY, THE 3RD DAY OF JUNE 2024 / 13TH JYAISHTA, 1946

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CRP(WAKF) NO. 5 OF 2024

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AGAINST THE ORDER DATED 12.12.2023 IN I.A.NO.572 OF 2023 IN
WOS NO.60 OF 2023 OF THE WAQF TRIBUNAL, KOZHIKODE

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---------

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REVISION PETITIONERS:

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1 K.S.MUHAMMAD BASHEER, AGED 58 YEARS,
S/O.SAIDU MUHAMMED, KURIAPPALLI HOUSE,
METHALA AMSOM, ANJAPPALAM DESOM, ARAKULAM WEST,
P.O.KODUNGALLUR, KODUNGALLUR TALUK, THRISSUR
DISTRICT, PIN – 680664.

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2 A.A.ALI, AGED 46 YEARS, S/O.AKKAMMU, ARAKKAPARAMBAL HOUSE, ERIYAD AMSOM, ATHANI DESOM, P.O. MADAVANA, KODUNGALLUR TALUK, TRISSUR DISTRICT, PIN – 680666.

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3 A.A.SHIHAB, AGED 45 YEARS, S/O.ABDUL RAHMAN, ALAMPARAMBIL HOUSE, ERIYADA AMSOM, ATHANI DESOM, P.O. MADAVANA, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN – 680666.

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BY ADV.R.RAMADAS

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RESPONDENTS:

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1 KODUNGALLUR CHERAMAN JUMA MASJID MAHALLU, REPRESENTED BY ITS PRESIDENT, DR.MUHAMMED SAYEED P.A., AGED 77 YEARS, S/O P.K. ABDUL KHADAR, PATIYATHU MANAPPAT HOUSE, LOKAMALESWARAM AMSOM, KODUNGALLUR DESOM, P.O. KODUNGALLUR, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN – 680666.

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CRP (WAKF) No.5 of 2024

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2 DR. MUHAMMED SAYEED P.A., AGED 77 YEARS, S/O.P.K. ABDUL KHADAR, PRESIDENT, KODUNGALLUR CHERAMAN JUMA MASJID MAHALLU, PATIYATHU MANAPPAT HOUSE, LOKAMALESWARAM AMSOM, KODUNGALLUR DESOM, P.O. KODUNGALLUR, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN – 680666.

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3 S.A. ABDUL KHAYOOM, AGED 75 YEARS, S/O S.M.ALY, SAIDARAKATH HOUSE, SECRETARY, KODUNGALLUR CHERAMAN JUMA MASJID MAHALLU, P.O. KOTTAPURAM, MEETHALE AMSOM, KOTTAPURAM DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN – 680667.

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4 THE KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, WAQF BOARD, VIP ROAD, KALOOR, KOCHI, PIN – 682017.

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OTHER PRESENT:

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SRI.JAMSHEED HAFIZ, SC, WAQF BOARD

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THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRP (WAKF) No.5 of 2024

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ORDER

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Harisankar V. Menon, J.

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This civil revision petition under the proviso to Section 83(9) of the Waqf Act, 1995 is filed by the plaintiffs in WOS No.60 of 2023 on the file of the Waqf Tribunal, Kozhikode. The suit was filed for a mandatory injunction directing defendants 1 to 3 (respondents 1 to 3 herein) to rectify certain structural defects adversely affecting the original structure of the Cheraman Juma Masjid and also the defects pointed out by the expert committee regarding the present construction. The plaintiffs also filed I.A.No.572 of 2023 before the Waqf Tribunal, Kozhikode praying

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for issuance of an order directing respondents 1 to 3 herein (defendants 1 to 3) to convene a general body of the mahal and submit the audited accounts for each and every year including the money spent for the present reconstruction of the Juma Masjid.

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The Waqf Tribunal by its order dated 12.12.2023 made reference to the submissions made on behalf of the respondents to the effect that, another petition was filed before the Waqf Board by some other members of the mahal wherein an order for auditing the accounts was passed by the Board and therefore, the purpose of the present I.A. will be accomplished as and when the

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CRP (WAKF) No.5 of 2024

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auditing is completed as per the directions given. The Tribunal also referred to the contentions of the petitioners to the effect that there was huge loss caused to the Waqf on account of unscientific construction with reference to the report of the expert committee, by which the defects in the reconstruction work are brought on record. The petitioners also pointed out before the Tribunal that the reliefs sought for in O.P.No.148 of 2019, laid down by the respondents are entirely different.

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The Waqf Tribunal, by the impugned order, after referring

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to the above, has come to the following findings:

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“11.The main prayer in the suit is to rectify the structural defects adversely affecting the original structure of Cheraman Juma Masjid.

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12.The interim application is to audit the accounts. The Waqf Board has already passed an order for auditing the accounts. The authority to pass such an order is with the Waqf Board. The said order is not under challenge.

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In these circumstances, there is no need to bypass the order of the Waqf Board by again passing another direction for convening the general body of the mahal and for submitting the audited accounts. The violation of byelaw, if any, can be pointed out before the Waqf Board in the proceedings before the Waqf Board. Hence, I.A. is only to be dismissed.”

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CRP (WAKF) No.5 of 2024

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It is the above order of the Waqf Tribunal, that is challenged in

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this civil revision petition.

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This revision petition has been admitted by this Court on 30.01.2024, ordering notice to the respondents herein by speed post, returnable within three weeks. The learned Standing Counsel for the 4^th respondent has entered appearance. However, the notice sent to respondents 1 to 3 on 14.02.2024 has not been returned till date, though the notice was properly addressed, prepaid and duly sent with an acknowledgement card. The revision petitioners, in such circumstances, filed I.A.No.2 of 2024 for the declaration of service on respondents 1 to 3 under Rule 51(2) of the Kerala High Court Rules, 1971. By the order dated 3.6.2024, we have allowed I.A.No.2 of 2024 and the service of notice on respondents 1 to 3 herein is declared as complete.

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We have heard the learned counsel for the revision petitioners and the learned Standing Counsel for the 4^th respondent.

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The plaintiffs have filed the suit before the Waqf Tribunal for a mandatory injunction against defendants 1 to 3. The petitioners-plaintiffs also filed I.A.No.572 of 2023 for a direction to respondents 1 to 3 (defendants 1 to 3). The prayer in the said

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CRP (WAKF) No.5 of 2024

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interlocutory application filed is as follows:

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“For the reason stated in the accompanying affidavit, it is prayed that this Honourable Tribunal may be pleased to pass an order directing the respondents-defendants 1 to 3 to convene the general body of the Mahal and submit the audited accounts for each and every year including the money spent for the present reconstruction of the Juma Masjid.”

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Thus, the Tribunal was petitioned to issue an order directing defendants 1 to 3 to convene the general body of the mahal and submit the audited accounts for each and every year including the money spent for the present reconstruction of the Juma Masjid.

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However, a perusal of the impugned order dated 12.12.2023 reveals that the Tribunal proceeded as if the prayer in the IA is to “audit the accounts”. Thereafter, the Tribunal referred to the stand of the respondents-defendants to the effect that there is already an order issued to the Waqf Board for auditing the accounts, on account of which, there are no orders required in the present interlocutory application. According to the Tribunal, if such an order is issued, that will bypass the orders issued by the Waqf Board.

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The above finding of the Waqf Tribunal does not appear to be correct. The prayer before the Waqf Tribunal in the

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CRP (WAKF) No.5 of 2024

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interlocutory application was totally different. The Tribunal has proceeded on a different tangent. The impugned order passed by the Waqf Tribunal does not appear to be a speaking order, after referring to the contentions raised by the parties before it. Therefore, the impugned order dated 12.12.2023 is only to be set aside.

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In the light of the above, we allow this revision petition, setting aside the impugned order dated 12.12.2023 and direct the Waqf Tribunal, Kozhikode to dispose of I.A.No.572 of 2023 in WOS No.60 of 2023 afresh, with notice and after affording an opportunity of hearing to the respective parties.

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Sd/- ANIL K. NARENDRAN, JUDGE

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Sd/-

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HARISANKAR V. MENON, JUDGE

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K.S. Muhammad Basheer v. Kodungallur Cheraman Juma Masjid Mahallu, Represented by Its President Dr Muhammed Sayeed P.A

Case brief

What is this about?

What did the court decide?

K.S. Muhammad Basheer v. Kodungallur Cheraman Juma Masjid Mahallu, Represented by Its President Dr Muhammed Sayeed P.A

Case brief

What is this about?

What did the court decide?

What the court decided

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