C.K. Hasan Musliyar Educational Complex v. P.K. Muhammeduppa, S.M. Muhammed & The Kerala State Wakf Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE S.V.BHATTI ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 ``` ``` CRP(WAKF) NO. 778 OF 2013 ``` ``` WOS 16/2010 OF WAKF TRIBUNAL, ERNAKULAM ``` ## **`PETITIONER/S:`** ``` C.K. HASAN MUSLIYAR EDUCATIONAL COMPLEX KARIMBA, MANNARKAD TALUK, PALAKKAD-678597, REGISTERED NO. 154/95, REPRESENTED BY ITS GENERAL SECRETARY, K.A.MUHAMMEDKUTTY, AGED 71, S/O. HASSAINAR, KNJIRAMCHOLA VEEDU, KARIMBA, MANNARKAD TALUK, PALAKKAD DISTRICT. ``` ``` BY ADVS.SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA ``` ## **`RESPONDENT/S:`** ``` 1P.K. MUHAMMEDUPPA,AGED 55 YEARS S/O. LATE ABDUL KHADDAR, PUTHANPEEDIKAYIL, KARIBA AMSOM DESOM, MANNARKAD TALUK, KARIMBA P.O., PALAKKAD DISTRICT-678597. ``` - `2 S.M.MUHAMMED,AGED 65 YEARS S/O. MOIDU, SRAMBIKKAL VEED, KARIMBA AMSOM DESOM, MANNARKAD TALUK, KARIMBA P.O., PALAKKAD DISTRICT678597.` ``` 3THE KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, NEAR INTERNATIONAL STADIUM, VIP ROAD, KALOOR, ERNAKULAM, 682018. ``` ``` BY ADVS.SRI.T.H.ABDUL AZEEZ SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD SRI.K.P.MAJEED ``` ## **`OTHER PRESENT:`** ``` AC JAMSHEED HAFIZ ``` ``` THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 08.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP(WAKF) NO. 778 OF 2013 ``` -2- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - `CRP(WAKF) NO. 778 OF 2013` - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## ORDER (Dated this the 8[th] day of April 2022) ## S V Bhatti J., The unsuccessful plaintiff in W.O.S.No.16 of 2010 on the files of the Wakf Tribunal, Ernakulam is the revision petitioner. The suit was filed for a declaration that the revision petitioner is the mutawalli of the plaint schedule property and the revision petitioner is the duly elected General secretary of the revision petitioner society. A prayer for permanent prohibitory injunction restraining respondent Nos.1 and 2 and their henchmen from trespassing into the plaint schedule property and from interfering with the peaceful administration and management of plaint schedule property was also sought by the revision petitioner. 2. The case of the plaint in brief is as follows:The petitioner is a committee registered under Societies ``` CRP(WAKF) NO. 778 OF 2013 ``` Registration Act. In the Annual General Body meeting of the society in the year 2006 a new executive committee was elected according to the bye-law. Respondent Nos.1 and 2 were not elected to the executive committee. With an intention to grab the committee, they tried to disrupt the proceedings of the general body meeting. Due to the high handed acts of respondent Nos.1 and 2, the petitioner society decided to expel respondent Nos.1 and 2 from the membership of the society and they were expelled on 25.4.2006. Complaints were filed before the Bank by the expelled members and the banks did not allow the petitioner society to operate the same and as such, the society is facing much difficulty to run the institution. The petitioner Society filed O.S.No.71 of 2007 before the Munsff’s Court, Mannarkkad seeking injunction against respondent Nos.1 and 3 and the Munsiff court dismissed the suit. The appeal preferred against the judgment and decree in O.S.No.71 of 2007 was also dismissed by the sub court, Ottappalam. Since the plaint schedule propety is registered under the Wakf board, the Ttribunal has the ``` CRP(WAKF) NO. 778 OF 2013 ``` -4- jurisdiction to try the suit. 3. The respondent Nos.1 and 2 filed joint written statement contending that the petitioner is not a Wakf institution and it is a only a public charitable institution. Since the institution is not a Wakf and the properties are not Wakf properties, the suit is not maintainable before the Tribunal. 4. The third respondent filed a written statement contending that the Wakf involves in the suit is a Wakf registered with the board with No.7830/RA. The trial court raised 4 issues;(i) whether the petitioner is the mutawalli of the plaint schedule properties?, (ii)whether the petitioner is entitled to get declaration as prayed, (iii) whether the petitioner is entitled to get injunction as prayed and (iv) as to the reliefs and costs. 5. The petitioner/plaintiff was examined as PW1 and Exts. A 1 to A43 were marked and on the side of the respondents DW1 was examined and B1 was marked. 6. The court below, on the basis of the evidence oral ## **`CRP(WAKF) NO. 778 OF 2013`** -5- and documentary evidence, came to the conclusion that the properties of the first petitioner are not Wakf properties and hence, the suit was dismissed. 7. As per Section 3 (r) of the Wakf Act, ‘wakf’ means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) “grants”, including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and It is true that a registration has been obtained from the Wakf board as No.7830/RA. But what is to be looked into is whether there is a permanent dedication of the property as stated in Section 3(r) of the Wakf act. It is seen from Ext.A43 proceedings that an application was filed for registration of Wakf and an ex-parte order was passed by the board on 12.8.2009 allowing the application for ## **`CRP(WAKF) NO. 778 OF 2013`** -6- registration of the Wakf. Ext.A32 is the bye-law of the society. Clause XIV of the bye-law deals with dissolution. The clause specifically stated that in case of dissolution of the committee, the advisory board should take it up and a general body should be called and if the advisory board is not able to take up the affairs of the committee, the society shall be entrusted to any other Organisation or Government. This clause makes it very clear that there is no permanent dedication of the Wakf property to God Almighty. Thus the property cannot be termed as a Wakf property. Permanent dedication is a sine-quanone for a Wakf which is absent in this case. 8. The counsel for the respondents relied on the judgment of this court reported in **Haji P.Liakath Alikhan v. K.Unneenkutty Saquafi [ILR 2005(4) 530],** wherein it was held that to constitute a Wakf there should be a dedication of movable and immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes a Wakf by user, grant and Wakf subject to the conditions mentioned in the section. ## **`CRP(WAKF) NO. 778 OF 2013`** -7- 9. The counsel for the petitioner, on the other hand, relied on the decision of this court reported in **Mechery Vijayakumar v. Kinasseri Yatheem Khana, Kozhikode** [2020 (2) KLT 46] to contend that once wakf board in exercise of powers under the Act registers a property held by a Wakf or Trust as Wakf, at the request of person managing property, it becomes a Wakf and Register of Wakf so prepared would afford sufficient proof of character of Wakf, unless the affected person establishes to the contrary. Section 40 of the Wakf Act 1985 deals with a decision as to whether a property is Wakf or not. S.clause (3) states that where the board has any reason to believe that any property of any or society registered in pursuance of the Indian Trusts Act, 1882 or under the Societies Registration Act or under any other Act, is Wakf property, the board may notwithstanding anything contained in such Act, hold an enquiry in regard to such property and if after such enquiry the board is satisfied that such property is Wakf property, call upon the trust or society, as the case may be, ## **`CRP(WAKF) NO. 778 OF 2013`** -8- either to register such property under this Act as Wakf property or show cause why such property should not be registered. Ext.A43 is proceeding by which the Wakf was registered. It does not show that such an enquiry as stipulated above was done before registration. In the absence of such an enquiry, it cannot be said that the registration granted by the Wakf Board is in compliance of the provisions of Section 40 of the Wakf Act. Coupled with the fact that there is no permanent dedication as can be seen from clause XIV of bye-law, there is no permanent dedication to God Almighty the wakf properties. The said decision has no application to the facts of this case as the enquiry contemplated under Section 40 of Wakf Act is not complied before registration of the Wakf. So the court below was justified in entering into a finding that the plaint schedule property is not a wakf property and it does not have the characteristics of the wakf. The Tribunal, thereafter held that since the property is not a wakf property, the suit is not maintainable before the Tribunal and hence, they are not entitled to any of the ``` CRP(WAKF) NO. 778 OF 2013 ``` -9- reliefs. We have gone through the judgment as well as the records, and in view of the categoric finding of the Tribunal on clause 14 of Ext.A32 bye-law as well as the procedure contemplated under Section 40 of the Wakf Act is not strictly complied, we are of the firm opinion that the Tribunal was justified in dismissing the appeal as not maintainable. In the result, this CRP fails and accordingly, the same is dismissed. **sd S.V.BHATTI, JUDGE** **sd BASANT BALAJI, JUDGE** _dl/_