A.P. Muhammedkutty v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **&** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932** **WP(C).No. 32992 of 2010(Y)** **---------------------------------------** **PETITIONER(S):** **------------------------** **A.P.MUHAMMEDKUTTY,S/O.ASAMUTTY MARAKKAR, AGED 62 YEARS, RESIDING AT ERAMAKKARA VEETTIL PUTHIYAKATHU NADUVA AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT,KERALA STATE,.** **BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY, HOEM DEPARTMENT, THIRUVANANTHAPURAM. PIN-695 001.** **2. DEPUTY SUPERINTENDENT OF POLICE, TIRUR, MALAPPURAM DISTRICT-676 101.** **3. CIRCLE INSPECTOR OF POLICE, TANUR, MALAPPURAM DISTRICT.PIN-676 101** **4. REVENUE DIVISIONAL OFFICER, TIRUR,MALAPPURAM DISTRICT.676 101.** **5. T.P.KUNHIKOYAMUTTY, SECRETARY OF PUTHEN PEEDIKA PALLY PARIPALANA COMMITTEE, S/O.MUHAMMED @ BAVUTTY HAJI, AGED 50 YEARS, RESIDIGING AT PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, KERALA STATE-676 305.** **6. PUTHEN PEEDIKA PALLI PARIPALANA COMMITTEE, REPRESENTED BY ITS SECRETARY T.P.KUNHIKOYAMUTTY, PARAPPANAGADI (PO)676 305.** **R1 TO R4 BY GOVERNMENT PLEADER SRI.JAIBY PAUL R5 & R6 BY ADV. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.32992/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE DEED OFWAKF EXECUTED BY BIRIYAKUTTY UMMA DATED 3RD FEB, 1958.** - **P2 COPY OF THE ORDER BY THE HON'BLE HIGH COURT OF KERALA IN CRP.NO.451/2010.** - **P3 COPY OF THE ORDER IN CRP.NO.40/2010 BY THE HON'BLE HIGH COURT OF KERALA DATED 26/3/2010.** - **P4 COPY OF THE ORDER IN CRP NO.226/09 BY THE HON'BLE HIGH COURT OF KERALA DATED 20TH JULY 2009.** - **P5 COPY OF THE ORDER IN I.A.NO.1133/2008 IN O.S.NO.63/2008 BY THE WAKF TRIBUNAL, KOZHIKODE DATED 24TH JULY, 2010.** - **P6 COPY OF THE NEWS CLIP DATED 19/10/2010 APPEARED IN MALAYALA MANORAMA DAILY.** ## **RESPONDENT'S EXHIBITS:** - **R5(A) COPY OF THE DATED 12/10/2010, THE REPORT IN I.A.NO.153/2010 IN O.P.NO.111/2010, KERALA STATE WAKF BOARD.** - **R5(B) COPY OF THE DATED 13/10/2010, THE ORDER IN I.A.NO.177/2010 IN O.P.NO.111/2010, KERALA STATE WAKF BOARD.** - **R5(C) COPY OF THE DATED 14/10/2010, THE PLAINT IN O.S.NO.262 OF 2010 MUNSIFF'S COURT, PARAPPANAGADI.** - **R5(D) COPY OF THE DATED 15/10/2009, THE ORDER IN I.A.NO.1133/2000 IN O.S.NO.63 OF 2008 ON THE FILED OF THE WAKF TRIBUNAL, KOZHIKODE.** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **R.BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------W.P(C) NO:32992 OF 2010 Y ----------------------------------------------------------Dated this the 8[th] February, 2011.** ## **JUDGMENT** ## Basant, J. Petitioner has come to this Court with this petition for issue of directions under Art.226 of the Constitution to respondents 1 to 4 who, according to the petitioner are harassing the petitioner at the instance of respondents 5 and 6. 2. The petitioner claims to be the Muthavally of wakf. Ext.P1 dated 3-2-1958 is the deed of wakf. The petitioner's father was the Muthavally as per the wakf deed. According to the petitioner after the death of his father as the petitioner's elder brother was disabled to take up the responsibilities of Muthavally, the petitioner has been acting as Muthavally. Petitioner's status as Muthavally has been recognised by the Wakf Board according to the petitioner. Respondents 5 and 6 are persons who claim a right to the office of Muthavally of the said wakf. With the petitioner on the one hand and respondents 5 and 6 on the other there has been civil disputes about the right to manage the wakf. WPC 32992/2010 2 2. According to the petitioner the petitioner were all along in possession and management of the wakf properties. But on 18-10-2010 respondents 2, 3 and 4 had come to the premises of the office of wakf. The premises were ordered to be closed down. According to the petitioner respondents 5 and 6 were permitted by respondents 2 to 4 to dispossess him and be in charge of and management of the properties of wakf. 3. According to the petitioner respondents 2 to 4 have no rights to interfere with the civil rights of the petitioner. It is his further contention that respondents 2 to 4 have resorted to such high handed and illegal action only to oblige respondents 5 and 6. In these circumstances the petitioner prays that appropriate directions may be issued under Art.226 to return possession and management of the wakf to the petitioner from respondents 5 and 6. It is the specific contention of the petitioner that respondents 5 and 6 have gained access to the properties of the wakf only because of the illegal conduct on the part of respondents 2 to 4 on 18-10-2010. 4. Respondents 5 and 6 have entered appearance. According to them at a meeting held on 22-1-1992 and 23-2-1992 of the beneficiaries of the wakf it was agreed that a society must WPC 32992/2010 3 manage the affairs of the wakf. Accordingly a society has been registered in 2003. Society is in management of the wakf and its properties. Society is the Muthavally managing the wakf. It is incorrect to say that the petitioner has come into management and possession of the properties of the wakf at any time. Respondents 5 and 6 take the stand that the sixth respondent committee is the Muthavally and the fifth respondent is the Secretary of the said committee. When disputes arose O.S.63/2008 was filed by respondents 5 and 6 asserting their rights for possession and management of the wakf and its properties. That suit was filed on 13-12-2008. I.A.1133/2008 for an interim order of injunction was filed and by order dated 20-12-2009 the right of respondents 5 and 6 to be in possession and management of the properties was recognised. That interim order has remained in force from 20-2-2009. A challenge was raised before this Court and by Ext.P4 order dated 20-7-2009 the said interim order was set aside and the wakf tribunal was directed to dispose of the petition afresh. Respondents 5 and 6 particularly point out that in paragraph 19 of the said order the interim order which remained in force from 20-2-2009 was directed to remain in force till fresh disposal was made. WPC 32992/2010 4 5. The Tribunal disposed of I.A.1133/2008 afresh on 15-10-2009 and the Tribunal again allowed I.A.1133/2008. Ext.R5(d) order was challenged before this Court and this Court again by Ext.P3 order dated 26-3-2010 in C.R.P 40/2010 (Ext.P3) set aside the said order and directed the wakf tribunal to dispose of the matter afresh. The learned counsel for respondents 5 and 6 submits that what is of crucial importance is that the interim order which had remained in force from 20-2-2009 was ordered to remain in force until the Tribunal disposed of the matter afresh. The learned counsel relies on paragraph 11 of Ext.P3 specifically in support of this contention. 6. The matter went back to the Tribunal again. The Tribunal by Ext.P5 order dated 24-7-2010 dismissed the application I.A.1133/2008 filed by respondents 5 and 6. That order Ext.P5 was challenged before this Court again in C.R.P.451/2010. It is pointed out that during the pendency of C.R.P.451/2010 an interim order was granted restraining the petitioner from committing waste etc in the property. C.R.P.451/2010 was ultimately disposed of by Ext.P2 order. In view of the pronouncement of the Supreme Court in **Ramesh Gobindram v. Sugra Humayun Mirza Wakf {2010(3) KLT** WPC 32992/2010 5 **862 (SC)}** respondents 5 and 6 were granted liberty to approach the wakf tribunal by appropriate application either to withdraw from the suit or for orders for return of the suit for presentation before the competent civil court. It appears that it was assumed at that stage that the wakf tribunal has no jurisdiction to consider O.S.63/2008. 7. The learned counsel for respondents 5 and 6 further submits that after Ext.P2 order was passed in the C.R.P proceedings in O.S.63/2008 had come to an end. However, the respondents 5 and 6 had initiated proceedings before the Munsiff's Court, Parappanangadi as O.S.262/2010. The petitioner and the Kerala Wakf Board are the defendants in that suit. Admittedly no interim orders have been passed in that suit. That plaint is dated 7-10-2010 it is pointed out. No interim orders have admittedly been passed in that suit. 8. Subsequently respondents 5 and 6 had approached the Kerala Wakf Board with O.P.111/2010. In that original petition before the Wakf Board it is submitted that respondents 5 and 6 had claimed that they be recognised as the Muthavally and their name be entered in the register of wakfs. The Wakf Board deputed a Commissioner to inspect the property and Ext.R5(a) is WPC 32992/2010 6 the report submitted by the Advocate Commissioner after notice to both parties. There is a dispute whether the notice has been given to the petitioner but notwithstanding that dispute we need only observe now that Ext.R5(a) reveals that notice was given to the representative of the petitioner. 9. Be that as it may, we find that the Wakf Board in O.P.111/2010 considered I.A.177/2010 and passed interim order dated 13-10-2010, copy of which is produced as Ext.R5(b). In Ext.R5(b) direction was issued to both parties to maintain status quo {as is reported in the Commissioner's report (Ext.R5(a)}. 10. The learned counsel for respondents 5 and 6 submit that it can in these circumstances be seen clearly that from 20-2-2009 till the disposal of Ext.P2 interim orders were in existence in favour of respondents 5 and 6. Subsequent to Ext.P2 Ext.R5(a) report of the Commissioner has been obtained and Ext.R5(b) order has been passed by the wakf board. It is incorrect to contend that the possession and management of the wakf was with the petitioner and that possession and management were disturbed by respondents 2 to 4 by their conduct on 18-10-2010. At any rate, the respondents 5 and 6 who have been in possession and management armed with the WPC 32992/2010 7 interim order from 20-2-2009 do not deserve to be discharged from their possession and enjoyment merely because Ext.P5 order has been passed by the Tribunal. The same was not disturbed by this Court in Ext.P2 order. In this context heavy reliance is placed on Exts.R5(a) and R5(b) also by the learned counsel for respondents 5 and 6. 11. The learned Govt. Pleader on behalf of respondents 1 to 4 contends that after Ext.P2 order was passed disputes leading to breach of law and order were perceived and the police and revenue officials were obliged to take action. The learned Govt. Pleader submits that proceedings under Section 145 Cr.P.C has been initiated. Notice was given to the parties. Parties have entered appearance. Admittedly no preliminary order or interim orders have been passed in such proceedings under Section 145 Cr.P.C. 12. The learned counsel for the petitioner contends that he is unaware of Ext.R5(a) report of the Commissioner and Ext.R5 (b) order passed by the wakf board. Counsel further argues that in any view of the matter wakf board in exercise of its powers under Section 42 of the Wakf Act does not have jurisdiction to issue interim directions which it is purported to have issued WPC 32992/2010 8 under Ext.R5(b). In these circumstances Ext.R5(a) or Ext.R5(b) cannot be used against the petitioner it is contended. 13. We have considered this contentions of the learned counsel for the petitioner. We take note of the fact that Ext.R5 (b) indicates that the petitioner was represented by a counsel – Adv. V.M.Shamsuddin. Ext.R5(a) indicates that notice was given by the Commissioner to the son of the petitioner who after taking instructions from the petitioner had received the notice of inspection by the Commissioner. Ext.R5(b) has not been challenged. At the moment and with the available inputs we find it impossible to swallow the contention that Exts.R5(a) and R5(b) have come into existence at the back of the petitioner without notice or information to him. We make it clear that we do not intend to express any final opinion on the said question. Suffice it to say that at the moment and with the available inputs we are unable to accept the said contention canvassed by the learned counsel for the petitioner. 14. We have heard counsel. We have adverted to all the relevant documents. The short question to be decided is whether directions deserve to be issued to direct respondents 5 and 6 to return possession and management to the petitioner WPC 32992/2010 9 on the short ground that they had come into possession and management totally on the basis of the alleged improper conduct of respondents 2 to 4. Having rendered our anxious consideration we are of the considered opinion that extraordinary constitutional jurisdiction under Art.226 cannot or need not be invoked to arm the petitioner with any such directions against the respondents herein. 15. In coming to this conclusion we note particularly that interim orders in favour of respondents 5 and 6 were admittedly remaining in force from 20-2-2009 to the date of Ext.P2 i.e 28-8-2010. We do further note that from 13-10-2010 Ext.R5(b) order passed by the wakf board is also remaining in force. We do further note that parties are already before the Civil Court in O.S.262/2010. We do not want to express any final opinion at the moment as to whether the Civil Court has jurisdiction or the wakf tribunal has jurisdiction in the matter. Fact remains that in the light of the circumstances referred to above we are not persuaded to agree that any specific directions deserve to be issued by this Court invoking the jurisdiction under Art.226 to put back the petitioner in possession. WPC 32992/2010 10 16. We may hasten to observe that we have not intended to encumber the records with any finding on the conflicting claims of both sides to be in possession and management of the property. We need only mention that parties must seek appropriate direction from competent courts. We only take the view that no directions under Art.226 deserve to be issued. 17. This writ petition is in these circumstances dismissed. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 32992/2010 11