Abdurahiman Haji v. Kerala State Wakf Board

C.R IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE A.HARIPRASAD TUESDAY, THE 27TH DAY OF MAY 2014/6TH JYAISHTA, 193620 CRP(WAKF).No. 185 of 2012 () ----------------------------OS 15/2011 of WAKF TRIBUNAL, KOZHIKODE PETITIONER(S)/PETITIONER: ----------------------------------------- ABDURAHIMAN HAJI S/O.ABDULLA, 'RASHID RESIDENCY', P.O. VENGALUR-676 102 TIRUR, MALAPPURAM DISTRICT. BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S)/RESPONDENTS:: ------------------------------------------------ ## 1. KERALA STATE WAKF BOARD V.I.P.ROAD, KALOOR, ERNAKULAM REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER-682017. 2. P.M. SAHIDA, MUTHAWALLI, P.M.SUHARABI WAKF, SUHARA MANZIL PUTHIYARA, KOZHIKKODE-673004. 3. P.M. RAMLATH MUTHAWALLI, P.M.SUHARABI WAKF, SUHARA MANZIL PUTHIYARA, KOZHIKKODE-673004. R2 & R3 BY ADV. SRI.C.P.MOHAMMED NIAS R1 BY ADV. SRI.K.SHIBILI NAHA, STANDING COUNSEL FOR KERALA STATE WAKF BOARD THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 25.03.2014 , THE COURT ON 27-05-2014 PASSED THE FOLLOWING: ## **“C.R.”** ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** **-------------------------------------C.R.P.(Wakf Act) No.185 of 2012 -------------------------------------Dated this the 27[th] day of May, 2014.** ## **ORDER** ## A.Hariprasad, J. Civil Revision Petition filed under Section 83(9) of the Wakf Act, 1995 (in short, “Act”). 2. Revision petitioner is aggrieved by the order passed by the Wakf Tribunal (in short, “Tribunal”) in an original application filed under Sections 83(2) and 83(5) of the Act. Relevant facts are as follows: Respondents 2 and 3 are the muthawallies in management of wakf property admeasuring 20.76 cents in Kasaba Village, Kozhikode Taluk. The muthawallies filed a petition before the 1[st] respondent Wakf Board (in short, “Board”) seeking permission to sell the above mentioned property. After complying with all formalities, the Board accorded sanction for the sale of property on 30.05.2011. Factum of the auction sale was duly published in various dailies. The auction was fixed on 18.07.2011. 2 CRP(Wakf Act) No.185/2012 Minimum price per cent was fixed at `9,00,000/-. Petitioner also participated in the public auction and he became the successful bidder. He quoted the highest price at `9,60,000/- per cent. The Board accepted the bid and approved the auction in favour of the petitioner. He deposited one third of the total amount before the Board. Thereafter, the petitioner deposited balance amount before the Board, for which the Board had issued a receipt. When the petitioner approached the Board for preparation of the sale deed, the Board informed him that the auction would be confirmed soon. But, the petitioner thereafter received a notice for re-auction. No reason was stated in the order for cancelling the auction. The order for re-auction, cancelling the earlier auction, is illegal and in violation of the Act and the Rules. Hence the order passed by the Board was challenged before the Tribunal. 3. Board resisted the action by contending that as per Section 32 of the Act, general superintendence of the wakfs in the State is vested with the Board. Wakf by name 'Moothammantakath Suharabi Wakf' has been registered with the Board and the muthawalli had submitted an application seeking permission of the Board for sale of a portion of the property for constructing a commercial building in the remaining portion by utilising the sale proceeds. An officer deputed by the Board, after conducting a survey, reported that the property would fetch at least `9,00,000/- per cent over and above the value fixed by the Government. Board, after considering 3 CRP(Wakf Act) No.185/2012 the need alleged for the sale and the report of the officer, decided to sanction the sale as requested by the muthawalli. Public auction was conducted on 18.07.2011. On the same day muthawalli submitted an application stating that though the market value of the property at the time of submitting the application was `8,00,000/- per cent, it had gone up to `20,00,000/- per cent and the property could have been auctioned at least for an amount of `15,00,000/- per cent. Thereafter, on 05.08.2011 another application was filed by the muthawalli mentioning that though they expected more price, they would accept the auction and request the Board to proceed with the matter. In this scenario, the Board considered the matter on 14.09.2011 and decided to re-auction the property after publishing in leading Malayalam Dailies. It was also decided that the persons, who had participated in the earlier auction could withdraw the amount deposited, if they were not willing to participate in the re-auction. This fact was communicated to the petitioner. He submitted an application for permitting him to participate in the re-auction without prejudice to the appeal filed by him before the Tribunal. On subsequent enquiry, it was revealed to the Board that the market value of the property could be approximately `22,00,000/- per cent. Hence the matter was placed before the Board for further consideration. Board would contend that the entire steps for re-auction were taken for the benefit of the wakf. 4. Respondents 2 and 3 filed a common counter statement 4 CRP(Wakf Act) No.185/2012 contending that the application is not maintainable. Petitioner cannot be considered as an auction purchaser since the auction was not confirmed in his name. Therefore, he is not entitled to file a petition challenging the decision of the Board. As per the terms of the auction, the confirmation of the auction was subject to the satisfaction of the Board. Even before the conduct of auction on 18.07.2011, they filed a petition before the Board disputing the market value obtainable for the property. The contesting respondents contended that market value of the wakf property had gone up considerably after submitting the application for sale. Property is situated in a very important locality of Kozhikode City. The petitioner has no right to get any of the reliefs claimed for. 5. After considering the rival contentions, the Tribunal set aside the impugned order passed by the Board and the matter was remitted back to the Board with a direction to re-consider the same and to pass appropriate orders stating reasons for cancellation of the auction. 6. Heard the learned counsel for the petitioner and the contesting respondents. Learned Standing Counsel for the Board was also heard. 7. Petitioner's primary contention is that the order passed by the Tribunal is without any legal basis. Learned counsel for the petitioner contended that the Tribunal has no power to remand the matter to the Board for fresh consideration. It is also contended that the provision relied 5 CRP(Wakf Act) No.185/2012 on by the Tribunal in the remand order, viz., Rule 94(8) of the Kerala Wakf Rules, 1996 (in short, “Rules”) was misinterpreted by the Tribunal. Learned counsel for the petitioner would further contend that after 30 days of the conclusion of auction, the Board has no power to cancel any auction. In other words, the auction gets automatically confirmed after elapse of 30 days from the date of auction. Learned counsel urged that after automatic confirmation of the auction, which happens by efflux of time, the Board has no authority to cancel the auction. Per contra, learned counsel for the Board and the contesting respondents contended that the concept of automatic confirmation after expiry of 30 days is alien to the law relating to auction sales, especially in the light of the wording of Rule 94(8) mentioned above. There must be a definite action of confirmation by the authority by application of mind. Further, the Standing Counsel for the Board would contend that the Board has power to cancel the auction even after its confirmation. However, we are not concerned with that contention, as the Board has no case that they had confirmed the auction before deciding to conduct re-auction. The contesting respondents would contend that the petitioner has not derived any right because the auction struck in his favour was not confirmed. It is the argument of the contesting respondents that the wakf would suffer irreparable injury and financial loss, if the property is allowed to be frittered away. 8. As the auction in this case happened on 18.07.2011, we are 6 CRP(Wakf Act) No.185/2012 concerned with the provisions of the Act as it stood before the amendment by the Wakf (Amendment) Act, 2013. Section 51 of the Act deals with the prohibition to alienate a wakf property without sanction of the Board. Relevant provisions of Section 51 of the Act reads as follows: _“_ _**51. Alienation of Wakf property without**_ _**sanction of Board to be void.** - (1) Notwithstanding anything contained in the Wakf deed, any gift, sale, exchange or mortgage of any immovable property which is Wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board:_ _Provided that no Mosque, Dargah or Khangah shall be gifted, sold, exchanged or mortgaged except in accordance with any law for the time being in force._ _(2) The Board may, after publishing in the Official Gazette, the particulars relating to the transaction referred to in sub-section (1) and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned mutawalli or any other person interested in the Wakf, accord sanction to such transaction if it is of opinion that such transaction is -_ _i) necessary or beneficial to the Wakf;_ - _(ii) consistent with the objects of the_ 7 CRP(Wakf Act) No.185/2012 _Wakf;_ _(iii) the consideration thereof is reasonable and adequate:_ _Provided that the sale of any property sanctioned by the Board shall be effected by public auction and shall be subject to confirmation by the Board within such time as may be prescribed._ _Provided further that the Tribunal may, on the application of the aggrieved mutawalli or other person, for reasons to be recovered by it in writing, permit such sale to be made otherwise than by public auction, if it is of opinion that it is necessary so to do in the interest of the Wakf.”_ 9. This provision has undergone a drastic change by the Amendment Act of 2013. Sub-section (2) of Section 51 of the Act has been completely changed so that any sale, gift, exchange, mortgage or transfer of wakf property shall be treated void ab initio from 20[th] September , 2013 onwards. We are not concerned with the said amendment, as the question in this case relate to a situation which existed before the amendment of the Act. 10. Provisions in Chapter X of the Rules also deal with alienation of wakf property. Rule 94 says about the application for permission for alienation. It says that the application shall be submitted by the muthawalli of the wakf to the Chief Executive Officer of the Board and such application shall contain the particulars mentioned in the Rule. Each and every step in 8 CRP(Wakf Act) No.185/2012 the processing of the application has been narrated in the Rule. Rule 94 reads as follows: ## _“_ _**Application for permission** .-_ _(1) An application for permission to alienate any immovable property owned by a wakf shall be submitted by the mutawalli of the wakf to the Chief Executive Officer of the Board and such application shall contain the following particulars, namely:-_ _(a) nature of the proposed transaction._ _(b) description of the property relating to the transaction with particulars regarding the survey number, extent, boundaries the village, taluk and district in which the said property is located, door number of any building._ _(c) the details of revenue assessed on the properties relating the proposed transaction by way of land revenue, cess, property tax and the like,_ _(d) the details of encumbrances to which the properties relating to the proposed transaction are subject,_ _(e) if the proposal is for creating mortgage, the amount for which the properties are proposed to be mortgaged,_ _(f) if the proposal is for sale or lease, the expected price or the rental, as the case may be expended,_ 9 CRP(Wakf Act) No.185/2012 _(g) if the proposal is for sale or mortgage, the purpose for which the property is sold or mortgaged,_ _(h) the details of property proposed to be acquired with the sale proceeds,_ _(i) such other particulars as the Board consider necessary._ _(2) Every application shall be submitted with an affidavit of the mutawalli or such other person empowered for alienation of the wakf property explaining how the proposed transaction is beneficial to the wakf and how the sale proceeds to be utilised._ _(3) The Chief Executive Officer shall on receipt of an application from the mutawalli or on his own initiative in the case of properties of any wakf directly managed by the Board verify the details in the application and presented before the Board with his recommendation._ _(4) The Board may publish in the Gazette and in two local newspapers the particulars relating to the proposed transaction together with a notice specifying the date on or after which the proposal will be further considered by the Board and inviting objections and suggestions with respect to the proposals before a date specified in the notice._ _(5) A copy of the notice shall, affixed on_ 10 CRP(Wakf Act) No.185/2012 _the notice board of the office of the Board and in some conspicuous place in which the property is situated._ _(6) The Board shall consider all objections and suggestions which may have been received by it before the date specified in the notice and if the Board considers that, -_ _(a) the proposed transaction is not for acquiring another property or contravenes any of the provisions of the Act the wakf deed or is not intended for the improvement of the existing properties of the wakf, or is not in any way necessary or beneficial to the wakf the board shall reject the application._ _(b) further inquiry is necessary to decide whether the sanction applied for may be granted or not._ _(c) the Board decides that the sanction is to be granted, it shall communicate its decision to the applicant and the interested parties._ _(7) If the proposal is for the sale of the property, the sale shall be conducted by public auction by the Chief Executive Officer in such manner and subject to such procedure as the Board may direct:_ _Provided that the Tribunal may, on the application of the mutawalli or other person, for reasons to be recorded by it in writing, permit such_ 11 CRP(Wakf Act) No.185/2012 _sale to be made otherwise than by public auction, if it is of opinion that it is necessary so to do in the interest of the wakf._ _(8) All auction shall be subject to the confirmation of the Board within thirty days from the date of conclusion of the auction. The Board shall be competent to cancel any auction for reason to be recorded._ _(9) In case of sale, the sale proceeds shall be paid to the wakf Board by the purchaser and the instrument of transfer shall be submitted to the Board for its approval. When the instrument of transfer is approved by the Board, the Board cause the sale proceeds to be deposited in a Scheduled Bank in the joint names of the chairperson of the Wakf Board and the Mutawalli or Executive Officer of the concerned wakf. The sale proceeds shall be utilised by the mutawalli with the approval of the Board within six months of the execution of the sale deed for the acquisition of other properties or for other purposes for which the property is sold._ _(10) The utilisation or investment of the amount realised by the sale or exchange mortgage of any property shall be made by the mutawalli subject to the approval of the Board. Every approval given by the Board shall be communicated to the mutawalli and shall also be published in the notice board of the Board Office_ 12 CRP(Wakf Act) No.185/2012 _and in any conspicuous place in which the property is situated.”_ Learned counsel for the petitioner submitted that after due procedure under the rule relating to sanction was gone through, it is not open to the Board to revisit the matter. It is also pointed out that the upset price fixed again for the proposed auction was the same. It is pointed out that though initially the muthawalli complained that the property should have been auctioned at least for `15 lakhs per cent, later on 05.08.2011 applied agreeing to accept the auction. Learned counsel for the petitioner would contend that the Board has to confirm the auction within 30 days from the date of conclusion of the auction and if not, the auction purchaser will get an absolute title by default. This contention is stoutly denied by the contesting respondents. 12. Learned counsel for the petitioner relied on a decision in **Kamalamma v. Rohinikutty Chandrika (1990 (2) KLT 716)** . That decision is relating to a sale under the provisions of Order XXI of the Code of Civil Procedure, 1908 (in short, “C.P.C.”). One of the questions that cropped up for decision in that case was whether the law contemplated an automatic confirmation of sale under Order XXI, Rule 92 CPC. Considering the various authorities on the point, the Division Bench of this Court held as follows: _“The court is bound to confirm the sale in circumstances contemplated under Order XXI Rule 92 C.P.C. Confirmation of sale is both the_ 13 CRP(Wakf Act) No.185/2012 _function and duty of the court and all that the purchaser need to do to ensure confirmation is to make the requisite deposit of the money as contemplated by law. Thereupon it is the duty of the court to confirm the sale. Where the court by inadvertance or otherwise fails to pass an order of confirmation, that cannot lead to deprivation of the right of the auction purchaser or cause prejudice to him. In such cases it can be deemed that the sale stands confirmed and where sale stands confirmed the sale shall be deemed to become absolute and title, by virtue of S.65 C.P.C. shall relate back to the date of sale. The provisions of Order XXXIV Rule 5 C.P.C. Constitute an exception to this rule due to the special position and privilege of mortgagor.”_ 13. Learned counsel for the contesting respondents contended that the principle stated in **Kamalamma'** s case (supra) is no longer good law in view of the pronouncement by the Apex Court in **Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh ((1994) 1 SCC 131)** . Law in this regard stated therein is as follows: _“......... The auction-purchaser gets a right only on confirmation of sale and till then his right is nebulous and has only right to consideration for confirmation of sale. If the sale is set aside, apart from the auction-purchaser, the decree-holder is affected since the realisation of his decree debt is_ 14 CRP(Wakf Act) No.185/2012 _put off and he would be obligated to initiate execution proceedings afresh to recover the decree debt.”_ Learned counsel for the contesting respondents relied on a three Judges Bench decision of the Apex Court in **Sagar Mahila Vidyalaya, Sagar v. Pandit Sadashiv Rao Harshe and others ((1991) 3 SCC 588)** to fortify his submissions. The relevant portion in the decision reads thus: _“.......... The sale of the property in question was perfectly valid and as soon as the sale was confirmed under Order 21 Rule 92 CPC, the judgment debtor had no right or title in the property. Once an order was made under Order 21 Rule 92 confirming the sale, the title of the auction purchaser related back to the date of sale as provided under Section 65 CPC. The title in the property thereafter vests in the auction purchaser and not in the judgment debtor.”_ From the precedents quoted above, it is clear that the petitioner cannot be heard to say that after 30 days from the date of conclusion of the auction, even without an express order of confirmation, he gets an absolute right over the property involved in the auction. 14. We are unable to agree with the other contention of the learned counsel for the petitioner that after expiry of 30 days from the date of auction, the Board has no power either to confirm the auction or to refuse to confirm. It is evident that no consequence has been mentioned in 15 CRP(Wakf Act) No.185/2012 Rule 94(8) quoted above if the confirmation was not made within 30 days from the date of conclusion of auction. Merely for the reason that 30 days time is fixed for confirmation of the auction, it cannot be said that adherence to the time stipulation is mandatory. Absence of mentioning any consequence for a possible breach of time stipulation is indicative of the fact that it is intended only to be directory. Apex Court in **Salem Advocate Bar Association, T.N. v. Union of India ((2005) 6 SCC 344)** while considering the time stipulation in Order VIII, Rule 1 CPC for filing a written statement held as follows: _“The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it..........._ _.......... Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory.”_ Therefore, for the sole reason that in the Rule 30 days time has been fixed 16 CRP(Wakf Act) No.185/2012 for confirmation of auction, without stating any consequence for not adhering to the time stipulation, it cannot be stated that the time fixed is mandatory in nature and after elapse of the period, the Board has no authority either to confirm or to refuse to confirm. 15. Next contention put forward by the leaned counsel for the petitioner is that the Tribunal erred in remitting the matter to the Board for stating reasons for cancellation. The contentions raised are two fold. Firstly, the Tribunal has no power to remit a matter to the Board, which is a subordinate authority. Secondly, after 30 days the Board is not competent to cancel the auction, whatever be the reason that could have been recorded. There is no cancellation of auction as such. Besides, in the view we propose to take, we need not pronounce on the matter further. Regarding the first contention, we are of the view that the Tribunal has sufficient power to remand a matter to the Board while it functions as an appellate body dealing with the orders of the Board. It is settled by pronouncement of a Full Bench in **Alappuzha Muhiyideen Masjid Association v. Abdulkhader (2011 (1) KLT 772)** that the Tribunal functions as an original forum and as an appellate forum. 16. Section 83 of the Act deals with constitution of Tribunals. Section 83(5) reads as follows: _“ The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be_ 17 CRP(Wakf Act) No.185/2012 _exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.”_ It is mentioned in Sub-section (6) of Section 83 of the Act that notwithstanding anything contained in C.P.C., the Tribunal shall follow such procedure as may be prescribed. Chapter XI of the Rules deals with the proceedings in the Tribunal. Rule 97 reads as follows: _“_ _**Provisions of the Code of Civil Procedure, Civil Rules of Practice and the Criminal Procedure Code to apply.** - Save otherwise provided in these rules, the provisions of the Code of Civil Procedure, 1908, of the Civil Rules of Practice, of the Code of Criminal Procedure Code, 1973, as the case may be, shall apply to the proceedings before the Tribunal.”_ Cumulative effect of the said provisions can only be that the provisions of C.P.C. and the Civil Rules of Practice have been directly made applicable to the proceedings before the Tribunal. From the nature of functions and powers conferred on the Tribunal by the Act and Rules for adjudication of disputes relating to wakfs, it ought to be seen that requisite powers inhere in the Tribunals to effectively adjudicate the disputes. 17. As mentioned earlier, the Tribunal is deemed to be a civil court and is guided by the provisions of the CPC in the matter of procedure. Order XLI Rules 23 and 23A CPC will give power to an appellate court to 18 CRP(Wakf Act) No.185/2012 remand the case to the court from whose decree the appeal has been preferred. Even if one is of the view that the powers under Order XLI CPC are available only to the courts, we think that the Tribunal, functioning as per the provisions of the CPC and Civil Rules of Practice and also having appellate powers, should be presumed to have an inherent power to remand a matter to the lower authority for effective and complete adjudication of the matter. The said power can be traced as a power inherent in an appellate body. The word ‘remand’ as per Black’s Law Dictionary means “the act or an instance of sending something (such as a case, claim or person) back for further action. The power to remand a case is inherent in an appellate authority, including a Tribunal. Therefore, we are of the view that the contention of the petitioner that the Tribunal could not have remanded the matter to the Board cannot be legally sustained. 18. Rule 94(8) of the Rules would show that the Board is competent to cancel any auction for reasons to be recorded. Nonmentioning of reason by the Board can be regarded as an illegality in the procedure adopted by the Board. However, in this case, it is evident that the Board has not passed an order confirming the auction either within 30 days or beyond 30 days. Therefore, we are of the view that what is required to be done in this case is to direct the Board to consider and pass an order as to whether the auction is to be confirmed in favour of the petitioner in view of the provisions contained in the Act and the Rules as CRP(Wakf Act) No.185/2012 19 they existed on the date of sale. For that purpose, we think that the matter has to be remitted back to the Board. In the result, the petition is allowed. The impugned order of the Tribunal is set aside. The matter is remitted back to the Board with a direction that it shall consider and pass appropriate orders regarding the confirmation of auction of the property held on 18.07.2011 within a period of one month from the date of production of this order. ## **K.M.JOSEPH, JUDGE.** ## **A. HARIPRASAD, JUDGE.** ## **cks**