CRP(WAKF) 43/2023: NALLATTUTHODIKA MUHAMMED SHEREEF v. ILLIKKODAN MUHAMMED, KERALA STATE WAKF BOARD & NALLATTUTHODIKA NAJEEB

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023/15TH AGRAHAYANA,** **1945** **CRP(WAKF) NO. 43 OF 2023** **AGAINST THE JUDGMENT DATED 30.09.2023 IN WOA 16/2020 OF** **WAKF TRIBUNAL, KOZHIKODE** ## **PETITIONER/APPLICANT IN WOA:** **NALLATTUTHODIKA MUHAMMED SHEREEF AGED 61 YEARS S/O MUHAMMEDALI, DAYA MANZIL, KACHERIPPADI, VENGRA.P.O., VENGARA, VILLAGE, MALAPPURAM DISTRICT, PIN – 676304** **BY ADVS. K.M.JAMALUDHEEN S.SREEKUMAR (SR.) LATHA PRABHAKARAN SAINA MARIYAM BABY** ## **RESPONDENTS/RESPONDENTS IN WOA:** **1 ILLIKKODAN MUHAMMED AGED 71 YEARS S/O ABU HAJI, ILLIKKODAN HOUSE, KANNATTIPPADI.P.O., VENGARA, VENGARA VILLAGE, MALAPPURAM DISTRICT, PIN – 676304** **2 KERALA STATE WAKF BOARD REPRESENTED BY CHIEF EXECUTIVE OFFICER, ERNAKULAM, PIN – 682017 3 NALLATTUTHODIKA NAJEEB AGED 46 YEARS S/O MOIDEENKUTTY, KANNAYATH HOUSE, KANNATTIPPADI, VENGARA P.O., VENGARA VILLAGE,** CRP(WAKF) No. 43/2023 2 **MALAPPURAM DISTRICT, PIN – 676304** **BY ADVS.** **R. RAMDAS (CAVEATOR) SRI JAMSHEED HAFIZ, SC, WAQF** **THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRP(WAKF) No. 43/2023 3 ## JUDGMENT ## AMIT RAWAL, J. For managing the waqf property, the Waqf Act, 1995 envisages the appointment of Mutawalli. Section 3(i) of the Waqf Act, 1995 describes 'Mutawalli' to administer the waqf property. As per the provisions of Section 3(i) of the Waqf Act, 1995, 'Mutawalli' means any person appointed:- a) either verbally b) under any deed or instrument by which a waqf has been created c) by a competent authority, d) includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, e) any person, committee or corporation for the time being, managing or administering any waqf or waqf property: 2. The controversy in the present case surfaced on submission of an application by one Moideenkutty, through power of attorney Sri. Nallattuthodika Najeeb, his son for registration in CRP(WAKF) No. 43/2023 4 the records of the waqf. Respondent No.1, Illikkodan Muhammed also submitted an application as the representative of the Committee namely Hidayathul Muslimeen Sangham (hereinafter, called as the 'Sangham') for registration in their name. The Waqf Board vide order dated 09.10.2019, by rejecting the request of Nallattuthodika Najeeb, accepted the request of Illikkodam Muhammed. Nallattuthodika Muhammed Shereef/petitioner challenged the order of the Waqf Board before the Waqf Tribunal, Kozhikode. The Tribunal vide Annexue A order, dated 13.02.2023 in W.O.A.No. 16/2020 modified the order of the Waqf Board by observing that the entry made in the waqf register to the effect that the Sangham as the Mutawali is set aside and directed the Waqf Board to look into the matter of appointment of a mutawalli invoking the power of the Board to frame a scheme, if necessary. The said order was assailed before this Court vide CRP (Wakf) No. 10 of 2023 and connected cases. The Hon'ble Division Bench of this Court while noticing the judgment of **Pookoya S.V.P. v. Lakshadweep State Wakf Board** CRP(WAKF) No. 43/2023 5 **and Others [2018 KHC 5257]** found that for adjudication of the issue with regard to the appointment of Mutawalli, the power would vest with the Tribunal and directed the Tribunal to decide the same afresh. 3. Before the Tribunal the parties produced umpteen number of documents. However the Tribunal in the findings commencing from Paragraph 63 of the judgment dated 30.09.2023 in W.O.A. No.16/2020, the Waqf Tribunal, Kozhikode decided the case in favour of the respondents. It is in this backdrop the present CRP (Wakf) has been filed. 4. Mr. S.Sreekumar, learned Senior Counsel assisted by Mr.K.M. Jamaludeen, submitted that the Tribunal did not abide by the direction of the Division Bench while considering the appointment of Mutawalli, but sat in an appeal and upheld the order of the Waqf Board by holding that the respondent No.1 is the Mutawalli. No documents in support of the contentions raised by the petitioner and noticed in the previous paragraphs have been discussed, thus there is an abdication. Contradictory findings CRP(WAKF) No. 43/2023 6 have been given. Moideenkutty, who was performing the duty of Mutawalli died after the decision rendered by the Waqf Board. The power to invoke the jurisdiction of Tribunal as per the provisions of Section 83 of the Waqf Act, 1995 would not confine to the parties to the lis but to any party. It is in that background the petitioner who belongs to the branch of Moideenkutty had sought the indulgence of the Tribunal for consideration of his case for appointment of Mutawalli. 5. On the other hand, Sri.Krishnanunni, learned Senior Counsel assisted by Sri. R.Ramdas, submitted that the order of the Tribunal is perfectly legal and justified, it did not sit in appeal over the order of the Waqf Board but decided the issue of Mutawalli independent of the order of the Waqf Board. Upholding the order of the Waqf Board at the best could be superfluous or obiter. But obliterated the parties to the lis. The petitioner under the garb of the application, intentionally connected the issue of registration with appointment of Mutawalli as there was no such dispute for, the committee - Sangham had CRP(WAKF) No. 43/2023 7 been discharging the role of Mutawalli and urged this Court for dismissal of the writ petition. 6. We have heard the learned counsel appearing for the parties and appraised the paper book. 7. Definition of Mutawalli as prescribed under Section 3(i) of the Waqf Act, 1995 reads as under:- _“(i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any waqf or waqf property:_ _Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation:_ _Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed:_ _Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;”_ CRP(WAKF) No. 43/2023 8 8. The appendix of the impugned order reveals series of documents placed on record by the rival parties. It is Exts.A1 to A57 on behalf of the petitioner and Exts.B1 to B26 on behalf of the respondents. While dealing with the contention of the respective parties, no doubt the Tribunal referred to all the documents relied upon by the respective parties but while rendering the findings, did not discuss the contents in order to arrive at a just fair and equitable conclusion. It could not have sat in an appeal to decide the justiciability of the order of the Waqf Board in terms of the Division Bench judgment of this Court and as well as the direction as noticed above. In other words, the Tribunal when called up is enjoined upon an obligation to decide the issue of Mutawalli independent of the order of the Waqf Board. 9. We, at this stage, refrain ourselves from referring to the contents of the documents as it would not be in our domain while sitting in a revision petition. Thus, in the interest of justice and as well as for marshalling out the rival contentions and the CRP(WAKF) No. 43/2023 9 documents, we deem it appropriate to remit the matter to the Tribunal to decide the controversy afresh as if it is a prayer by the respective parties to resolve the dispute with regard to Mutawalliship of the waqf property instead of sitting in an appeal. 10. Accordingly, the judgment dated 30.09.2023 in W.O.A. No. 16/2020 of the Waqf Tribunal, Kozhikode is set aside. The Tribunal is directed to decide on the controversy, as expeditiously as possible, within a period of six months from the date of receipt of a certified copy of this judgment. The parties are also at liberty to place on record any additional documents in support thereof with advance copy to each other and if so advised can seek indulgence of the Tribunal for amendment etc., in order to prevent multifariousness. Revision stands disposed off. Sd/- AMIT RAWAL JUDGE Sd/- C.S. SUDHA JUDGE DCS/08.12.2023 CRP(WAKF) No. 43/2023 10 ## **APPENDIX** ## **PETITIONER ANNEXURES** **ANNEXURE A CERTIFIED COPY OF THE ORDER PASSED BY THE WAKF TRIBUNAL, KOZHIKODE IN WOA NO.16/2020 DATED 13-2-2023** **ANNEXURE B ONLINE CERTIFIED COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN C.R.P.(WAKF) NO.10/2023 AND CONNECTED CASES DATED 4- 7-2023**