CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 vs M/S Norman Printing Bureau (Norman Printing Bureau)

CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942** **CRP(WAKF).No.150 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OA 2/2016 DATED 02-02-2016 OF WAKF TRIBUNAL, KOZHIKODE** ## **REVISION PETITIONER/PETITIONER:** **M/S. NORMAN PRINTING BUREAU REPRESENTED BY ITS PARTNER, P.V. NIDHISH, KTC BUILDINGS, YMCA ROAD, KOZHIKODE-1** **BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR** ## **RESPONDENTS/RESPONDENTS:** **1 THE CHIEF EXECUTIVE OFFICER KEALA STATE WAQF BOARD, PARAMARA ROAD, KOCHI-682 018 2 KERALA SATE WAQF BOARD PARAMARA ROAD, KOCHI-682 018 3 ADDL.R3. P.M.MAMMU HAJI WAKF COURT ROAD, CALICUT REP. BY ITS SECRETARY, SHABEER AHAMED, S/O AHAMED KOYA, AGED 50 YEARS, JASEENA NIVAS, P.O.NALLALAM, PIN-673027, CHERUVANNUR DESOM, KOZHIKODE TALUK (ADDL. RESPONDENT R3 BEING THE OWNER OF THE PROPERTY IS IMPLEADED AS PER THE ORDER DATED 2/8/2019 IN IA NO.1/2019.)** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 2 **BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD BY SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD R3 BY ADV. P.A.ABDUL JABBAR BY SRI.SHIBILI NAHA** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 27.10.2020, ALONG WITH CRP(WAKF).650/2013, CRP(WAKF).572/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942** ## **CRP(WAKF).No.650 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OA 9/2012 DATED 16-07-2013 OF WAKF TRIBUNAL, KOZHIKODE** ## **REVISION PETITIONERS/PETITIONERS:** **1 P.V.NIDHISH, S/O.P.V.CHANDRAN, PARTNER, M/S.NOPRMAN PRINTING BUREAU, K.T.C. BUILDING, YMCA ROAD, CALICUT-1.** **2 THE MANAGER, M/S.NOPRMAN PRINTING BUREAU, K.T.C. BUILDING, YMCA ROAD, CALICUT-1.** **BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR** ## **RESPONDENTS/RESPONDENTS:** **1 THE KERALA STATE WAKF BOARD REGIONAL OFFICE, EROTH CENTRE, BANK ROAD, KOZHIKKODU-673 001, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.** **2 K.M.ABOOBACKER SIDDIQUE, AGED 56 YEARS, FATHER'S NAME NOT KNOWN, KALARIKANDY MALIEKAL HOUSE, COURT ROAD, KOZHIKODE-1.** **BY ADV. SHIBILI NAHA(NO MEMO) BY ADV. SRI.P.A.ABDUL JABBAR BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 27.10.2020, ALONG WITH CRP(WAKF).572/2015, CRP(WAKF).150/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** # CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 4 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942** **CRP(WAKF).No.572 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OS 22/2012 DATED 14-07-2015 OF WAKF TRIBUNAL, KOZHIKODE** ## **REVISION PETITIONER/1ST DEFENDANT:** **M/S. NORMAN PRINTING BUREAU K.T.C. BUILDING, YMCA ROAD, CALICUT-1, REPRESENTED BY ITS PARTNER P.V.NIDHISH, S/O.P.V.CHANDRAN.** **BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR** ## **RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:** **1 P.M.MAMMU HAJI WAKF TRUST COURT ROAD, CALICUT REPRESENTED BY ITS SECRETARY, K.M.SHABEER AHAMMED (CLAIMING TO BE ITS SECRETARY) S/O.AHAMMED KOYA, AGED ABOUT 53 YEARS, JASEENA NIVAS, P.O.NALLALAM, CHERUVANNUR AMSOM, KOZHIKODE. 2 KERALA STATE WAKF BOARD PARAMARA ROAD, KOCHI-682018, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.** **BY ADV. SRI.P.A.ABDUL JABBAR BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD BY ADV. SHIBILI NAHA** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 27.10.2020, ALONG WITH CRP(WAKF).650/2013, CRP(WAKF).150/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 5 ## **O R D E R** ## **Vinod Chandran, J.** **Three revisions, one from a judgment & decree in a suit for injunction and the other two from orders rejecting two original applications filed by the defendant in the suit. On the background facts we need only say that one P.M.Mammu Haji is said to have given a lease of two shop rooms, now numbered by the Calicut Corporation as VII/214 and VII/215, far back in the year 1960. Norman Printing Bureau run by Achuthan Nair was functioning therein. Later a partnership agreement was entered into with one P.V.Sami. The partnership has been continuing all these years and the Printing Bureau is engaged in the publication of 'Norman Almanac' containing astronomical data normally used in astrology.** **2. Mammu Haji is said to have created a Wakf by Ext.A3 document in the year 1951. After Mammu Haji's death, there was a suit filed by the legal heirs, numbered as O.S.No. 130/1965 before the Sub Court, Calicut to remove the trustee. There was an** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 6 **existing dispute even between the legal heirs of Mammu Haji as to whether it is a Wakf or a Trust. In that suit, the Court found that what has been created by Mammu Haji is a private Trust and removed the then existing Trustee.** **3. The present proceeding arose allegedly because the CEO is in inimical terms with the tenant. The CEO is said to have initiated many proceedings against the tenant for eviction. We confine ourselves to what is before us. O.S.No.22/2012, from which CRP (Wakf)No.572/2015 arose, sought for an injunction against reconstruction and structural alterations attempted by the tenant. The suit was filed by 'P.M. Mammu Hajee Wakf Trust', which itself according to the learned Counsel appearing for the revision petitioner is a misnomer since both cannot co-exist. It cannot at the same time be a Wakf and a Trust is the specific contention, especially since the Wakf creates a dedication in favour of God while a trust vests the property in the hands of the Trustees.** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 7 **4. In the suit there was an I.A. filed raising objection on maintainability as a preliminary issue. The Tribunal found in favour of the plaintiff, upon which the tenant approached this Court in CRP (Wakf) No.375/2012. A Division Bench of this Court found the suit to be maintainable before the Tribunal. However on the question of competency of the plaintiff to seek injunction before the Tribunal with respect to the specific properties tenanted, the Court said so in paragraph 19;** **“Another contention of the revision petitioner is regarding the competency of the plaintiff to institute a suit on behalf of the Wakf. Learned counsel for the 1[st] respondent submitted that the plaintiff Trust is in administration of the Wakf property. Whether the plaintiff Trust is competent to institute a suit for injunction, on behalf of the Wakf, against the defendant is a matter which will have to be independently considered and decided, as it is a vexed question of fact and law. Stated differently, it cannot be decided in a proceedings under Order 39, Rules 1 and 2 of the Code of Civil Procedure. Therefore, that** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 8 **contention of the revision petitioner also has to fail”.** **The contention which was held to have failed is that of maintainability, since the adjudication as to whether it is a wakf has to be carried out by the Wakf Tribunal. If it is found otherwise necessarily the Wakf Tribunal would have no jurisdiction and the suit will have to be rejected for being filed in the Civil Court. The learned Counsel for the petitioner has argued that based on this observation the Tribunal ought to have raised an issue as to whether the tenanted premises is a wakf or not.** **5. When the suit was taken up for trial issues** **were framed in the following manner;** - **(1) Has the Tribunal got jurisdiction to try the suit?** - **(2) Is the injunction prayed for, allowable?** - **(3) Reliefs and costs?** **On the first issue of jurisdiction, it was held in favour of the plaintiff, based on the finding of this Court, with nothing more. That is; the question whether the property is a wakf or not was** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 9 **failed to be adjudicated. In fact paragraph 19 extracted above records the submission of the revision petitioner at the earlier instance and finds the suit to be maintainable rejecting the objection raised by the defendant.** **6. The Division Bench in the earlier CRP followed** _**W.B.Wakf Board v. Anis Fatma Begum**_ **[** _**(2010) 14 SCC 588**_ **].** _**Anis Fatma Begum**_ **found that the words** **'all disputes, questions and other matters relating to a wakf or wakf property' used in Section 83 clothes the Tribunal with the jurisdiction to decide every matter concerning a Wakf. An earlier Bench of coordinate strength in** _**Ramesh Gobindram v. Sugra Humayun Mirza Wakf**_ **[** _**(2010) 8 SCC 726**_ **], however held that the Civil Court's jurisdiction is excluded only in cases where the matter in dispute is required under the Wakf Act to be determined by the Tribunal as is discernible from Section 85 of the Act. Sections 6 and 7 of the Act confers jurisdiction on the Tribunal to decide the question whether a property is wakf or not and whether it is a Shia** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 10 **wakf or Sunni wakf. Section 85 though wider, was held to be not an absolute exclusion of the jurisdiction of the Civil Court. Section 83 was categorically held to be not concerned with the exclusion of jurisdiction of the Civil Courts.** _**Anis Fatma Begum**_ **distinguished** _**Ramesh Gobindram**_ **and took a diametrically opposite view, and relied on Section 83 to find complete ouster of jurisdiction of the Civil Courts. Another Division Bench, again comprised of two learned Judges, in** _**Punjab Wakf Board v. Pritpal Singh & Another**_ **[** _**2013 SCC OnLine SC 1345**_ **] followed** _**Anis Fatma Begum**_ **to hold that a suit for recovery of possession from a tenant is not one seeking relief for ejectment. Again the question came up for consideration before a Division Bench of co-equal strength in** _**Punjab Wakf Board v. Sham Singh Harike**_ **[** _**(2019) 4 SCC 698**_ **]. The learned Judges found that both** _**Anis Fatma Begum**_ **and** _**Pritpal Singh**_ **sounds a different note from the earlier judgment and was not in accord with the ratio of** _**Ramesh Gobindram**_ **.** _**Ramesh Gobindram**_ **was re-affirmed, which is the first** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 11 **of the above cited decisions by a Division Bench comprised of two Judges. In** _**Ramesh Gobindram**_ **as in one of the Civil Appeals considered in** _**Sham Singh Harike,**_ **the issue was with respect to the eviction of a tenant. Both the decisions held that this is a question which can only be decided by the Civil Court. However now, after the amendment of the Wakf Act in the year 2013, even eviction of expired tenancies can be agitated before the Wakf Tribunal, as removal of encroachments.** **7. The maintainability of the suit does not absolve the Tribunal from deciding the additional issue as raised by the defendant; as to whether the property is a wakf at all.** _**Sham Singh Harike**_ **considered two Civil Appeals, in one of which the suit before the Tribunal was for eviction of a tenant. In the other, the prayers were for recovery of possession and injunction against improvements by an alleged tenant; wherein the defendant objected to the title and disputed the plaintiff's claim of the property being a wakf. On the effect of Section** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 12 ## **6(1) and the Explanation, as was available in Section 6(1) defining 'person aggrieved' it was held** ## **so:** **65. Applying the above ratio to the interpretation of the Explanation of Section 6(1) of the 1995 Act the following two conclusions can be drawn:** **65.1. Any person interested in the wakf property which is specified as wakf property in the list of wakfs published under Section 5 can also raise the dispute regarding the wakf property by instituting a suit in a Tribunal. Limitation for filing such suit by any person interested in the wakf property is one year as per Section 6(1) proviso.** **65.2. The finality of the wakf property being included in the list of wakfs published under Section 5(2) shall not be on a person to whom a reasonable opportunity had not been afforded to represent his case by notice served on him during the course of relevant inquiry under Section 4.** **Even when the subject suit was filed, the** **Explanation was available in the statute and there is no contention taken that the defendant who raised the objection, of the property being not a wakf, despite it being registered as a wakf; was served with notice before registration.** **8. On such interpretation the competency of the plaintiff as argued by the revision petitioner is a vexed question of law and facts especially on the** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 13 **specific ground taken by the tenant that what has been created by Mammu Haji was not a Wakf. We also notice that the definition of Wakf in the Act includes a Wakf-al-al-aulad only to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable. Considering the fact that the defendant had raised an objection as to the property being not a wakf, competency of the plaintiff to maintain a suit for the relief of injunction ought to have been an issue framed by the Tribunal and adjudicated upon.** **9. We find that though the second issue as to the injunction prayer being allowable was framed and considered, the question of competency of the plaintiff to file the suit has not been considered even when considering the question of jurisdiction, properly raised. It is submitted by the learned Counsel for the revision petitioner that there has been copious evidence let in by both parties. On the above findings we are inclined to remand the** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 14 **matter to the Tribunal. We set aside the judgment and remand the matter to the Tribunal for fresh consideration after raising issues as to whether the property is wakf or not and if so, the person who represents the wakf is the Muttawalli or a beneficiary. The issues shall be so raised and parties, if they so request, shall be granted opportunity to adduce further evidence. What has already been recorded shall remain as evidence let in. The Tribunal shall frame the issues within a period of one month from the date of receipt of a certified copy of this judgment along with the lower Court records transmitted by this Court. The Tribunal shall expedite finalization of the suit after giving reasonable opportunity to the parties to adduce evidence, if so required.** **10. When O.S.No.22/2012 was pending before the Wakf Tribunal an injunction order was passed by the Chief Executive Officer [CEO] against the construction attempted by the tenant. The** **application for injunction before the CEO was made** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 15 **by a person styling himself as a beneficiary of the Trust. Against the injunction order, O.A.No.9/2012 was filed before the Tribunal. The Tribunal confirmed the injunction order finding the tenant to be an encroacher. At that time there was no termination of the lease as such. As of now there is an amendment brought to the Wakf Act in the year 2013. Under Section 54, an application for eviction of encroachment before the CEO can only lead to a suit for eviction being filed by the CEO before the Tribunal. In such circumstances, there is no question of any injunction being granted by the CEO itself. We are not going into the question as to whether prior to amendment, Section 54 empowered the CEO to grant an injunction order, which as of now is purely academic. We allow the CRP by setting aside the order of injunction passed by the CEO and the finding in O.A. No.9/2012 that the tenant is an encroacher stands vacated, which can be decided only after the nature of the property is decided in the other suit.** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 16 **11. CRP 150/2016 is from an order of the CEO evicting the tenant, against which O.A.No.2/2016 was filed before the Tribunal. The eviction was ordered** **on the ground that the Tribunal had found in O.A.No.9/2012 that he is an encroacher. We have already set aside the finding in O.A.No.9/2012 that the tenant is an encroacher. Learned Counsel appearing for the respondent however would contend that the finding in O.A.No.2/2016 is not based solely on the finding in O.A.NO.9/2012. Be that as it may, we find that O.A.No.2/2016 itself is a suit filed against the order of eviction passed by the CEO which power he does not possess after the 2013 amendment. On that finding, we allow O.A.No.2/2016 finding the CEO, as of now to have no power to grant an eviction. The CEO after the amendment of 2013 could only approach the Tribunal for eviction, if he is satisfied that it is a Wakf. O.A.No.2/2016 also stands allowed, but however on the limited ground of the CEO having no power to pass such an order. If the entity created by Mammu Haji is found to be a** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 17 **Wakf, the person in Management shall have the powers to terminate the tenancy and shall be entitled to take proceedings under the Wakf Act for eviction of a tenant, who after such termination of tenancy, is deemed to be an encroacher. We make it clear that we have not observed on the merits of the contentions of either parties. The issues have to be considered in O.S.No.22/2012.** **Ordered accordingly. Parties to suffer their respective costs.** ## **Sd/-** **K.VINOD CHANDRAN** **JUDGE** **Sd/-** **T.R.RAVI** **JUDGE** **Pn 27/10** CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 18 ## **APPENDIX IN CRP(WAKF) 150 OF 2016** ## **PETITIONERS' EXHIBITS** |**ANNEXURE**|**1**|**A TRUE COPY OF NOTICE BY THE 1ST**| |---|---|---| |||**RESPONDENT TO THE PETITIONER DATED**| |||**15.07.2015**| |**ANNEXURE**|**2**|**A TRUE COPY OF THE OBJECTION FILED BY**| |||**PETITIONER DATED 06.05.2014**| |**ANNEXURE**|**3**|**A TRUE COPY OF APPLICATION SUBMITTED BY**| |||**THE PETITIONER DATED 17.05.2014**| |**ANNEXURE**|**4**|**A TRUE COPY OF THE ORDER DATED**| |||**22.12.2015 OF THE 1ST RESPONDENT**| |**ANNEXURE**|**5**|**A TRUE COPY OF O.A 2 OF 2016 DATED**| |||**04.01.2015 ON THE FILES OF WAQF**| |||**TRIBUNAL, KOZHIKODE**| |**ANNEXURE**|**6**|**A TRUE COPY OF I.A. NO.9 OF 2016 IN**| |||**O.A. 2 OF 2016 DATED 04.01.2015 ON THE**| |||**FILES OF WAQF TRIBUNAL, KOZHIKODE**| |**ANNEXURE**|**7**|**A TRUE COPY OF COUNTER IN I.A. NO.9 OF**| |||**2016 IN O.A. 2 OF 2016 DATED 04.01.2015**| |||**ON THE FILES OF WAQF TRIBUNAL,**| |||**KOZHIKODE**| CRP (Wakf) Nos.150 of 2016, 650 of 2013 & 572 of 2015 19 ## **APPENDIX IN CRP(WAKF) 650 OF 2013** ## **PETITIONERS' EXHIBITS** **ANNEXURE 1 A TRUE COPY OF THE ORDER DATED 16.05.2005 OF THE 1ST RESPONDENT ANNEXURE 2 A TRUE COPY OF THE APPEAL MEMO IN O.A.9/2012 ON THE FILES OF WAKF TRIBUNAL, KOZHIKODE ANNEXURE 3 A TRUE COPY OF THE ORDER DATED 23.06.2012 OF THE 1ST RESPONDENT IN HIS PROCEEDINGS NO.E3-3888/2012 ANNEXURE 4 A TRUE COPY OF THE PLAINT IN THE EVICTION SUIT O.S.13/2006 FILED AGAINST THE FIRM BEFORE THE WAKF TRIBUNAL, KOZHIKODE** **ANNEXURE 5 A TRUE COPY OF THE ORDER DATED 14.10.2010 IN CRP 106/2008 OF THE HIGH COURT OF KERALA**