CRP(WAKF).No. 71 of 2013 (D)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935 ## **CRP(WAKF).No. 71 of 2013 (D)** AGAINST THE ORDER OF THE WAKF TRIBUNAL, KOZHIKODE IN OA .NO.18/2012 DATED 22-12-2012 ## **PETITIONERS/APPLICANTS** : 1. CHERUVATTY ABDUL AZEEZ SON OF KALANDAN, DARUN KHAIR, P.O.MOORAD KOOTHUPARAMBA AMSOM, MOORAD DESOM, KANNUR TALUK. 2. ABDULLA, SON OF CHERUVATTY MAMMU HAJI, SHAREEFA MANZIL, P.O.MOORAD, KOOTHUPARAMBA AMSOM, MOORAD DESOM THALASSERY TALUK, KANNUR DISTRICT. 3. P.P.HAKEEM MOULAVI AGED 31 YEARS SON OF KUTTIYALIPURATH AHAMMAD, PUTHANPURA, K.K.VAYAL, MUZHAKKUNNU AMSOM & DESOM, THALASSERY TALUK KANNUR DISTRICT (FATHER'S NAME AND ADDRESS SHOWN IN THE ORDER ARE INCORRECT) 4. RAFEEQ, AGED 35 YEARS SON OF CHERUVATTY MAMMU HAJI, SHAREEFA MANZIL P.O.MOORAD, KOOTHUPARAMBA AMSOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM ## **RESPONDENTS/RESPONDENTS:** 1. KOTTAYAM MAHALLU MUSLIM JAMA-ATH COMMITTEE A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE SOCIETIES REGISTRATION ACT BEARING NO.107/1983 REPRESENTED BY ITS PRESIDENT P.C.KASIM HAJI AGED 45 YEARS, S/O.MAMMOOTTY HAJI, KOTTAYAM AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. 2. P.C.KASIM HAJI, AGED 45 YEARS SON OF MAMMOOTTY HAJI, KOTTAYAM AMSOM, DESOM THALASSERY TALUK, KANNUR DISTRICT. :: 2 :: ## **CRP(WAKF).No. 71 of 2013 (D)** 3. THE KERALA WAKF BOARD - REGIONAL OFFICE REPRESENTED BY ITS EXECUTIVE OFFICER OFFICE AT EROTH CENTRE, BANK ROAD, KOZHIKODE. 4. THE KERALA WAKF BOARD - REPRESENTED BY CHIEF EXECUTIVE OFFICER, V.I.P.ROAD KALOOR, ERNAKULAM, KOCHI-682 017. R1 BY ADV. SRI.R.RAMADAS(CAVEATOR) R3 & 4 BY ADV. SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 01-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **APPENDIX** ## **PETITIONERS' EXHIBITS** : - ANNEXURE A1 PHOTOCOPY OF THE APPLICATION FOR REGISTRATION OF GURIKKANMARAKATH WAKF SUBMITTED BY MOHAMMED MUSLIAR BEFORE THE KERALA WAKF BOARD DATED 12.9.1962. - ANNEXURE A2 PHOTOCOPY OF THE ENTRY RELATING TO GURIKKANMARAKATH WAKF IN THE REGISTER OF WAKFS. - ANNEXURE A3 PHOTOCOPY OF THE PROCEEDINGS OF THE SENIOR SUPERINTENDENT OF THE KERALA WAKF BOARD, DIVISIONAL OFFICE, KANNUR AND THE DEMAND NOTICE ISSUED BY THE SAID AUTHORITY DEMANDING CONTRIBUTION FROM THE MUTAWALLI OF GURIKKANMARAKATH WEAKF DATED 19.10.2012. - ANNEXURE A4 PHOTOCOPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE KERALA WAKF BOARD, DIVISIONAL OFFICE, KANNUR TO CHERUVATTY USMAN HAJI DATED 29.10.2012 TOWARDS PAYMENT OF WAKF CONTRIBUTION FOR THE PERIOD 20112012. ## **RESPONDENTS' EXDHIBITS** : NIL //TRUE COPY// AHZ/ **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------C.R.P.(Wakf) No.71 OF 2013 D** **---------------------------------------------------Dated this the 1[st] day of October, 2013** ## **O R D E R** ## **K.T.Sankaran, J.** Respondents 1 and 2 in the Revision (Kottayam Mahallu Muslim Jama-ath Committee and another) filed O.P.No.119 of 2012 before the Kerala Wakf Board against the revision petitioners for a permanent prohibitory injunction restraining the revision petitioners from interfering with the day-to-day administration and management of 'Gurukkanmarakath Makham' by the Kottayam Mahallu Muslim Jama-ath Committee and from interfering with the dealing of the income by the said Committee. The petitioners in O.P.No.119 of 2012 (respondents 1 and 2 in the Revision) filed I.A.No.97 of 2012 before the Wakf Board for an interim order of injunction. The Wakf Board passed an ad interim order of injunction dated 1.10.2012, which reads as follows: ## **C.R.P.(Wakf) No.71 OF 2013 D** :: 2 :: “Heard the counsel for the petitioner. Perused the records. The petitioner has made a prima facie case. The respondents are restrained from interfering with the management of the wakf in dispute by the petitioners until further orders.” 2. The revision petitioners challenged the order dated 1.10.2012 before the Wakf Tribunal, Kozhikode in O.A.No.18 of 2012 under Section 83(5) of the Wakf Act. The Wakf Tribunal, by the order dated 22.12.2012, dismissed O.A.No.18 of 2012. The Wakf Tribunal held that the order impugned before it was an ad interim order and the revision petitioners (appellants in O.A.No.18 of 2012) could have approached the Wakf Board for vacating the ad interim order, after filing the counter statement. The Wakf Tribunal held that instead of doing so, the revision petitioners rushed to the Wakf Tribunal challenging the ad interim order of injunction. The Tribunal also held that the petitoners before the Wakf Board (respondents 1 and 2 in the Revision) made out a prima facie case for an ad interim order. 3. The Wakf Tribunal held, relying on the decision in **Ahmu** v. ## **C.R.P.(Wakf) No.71 OF 2013 D** :: 3 :: **Ramalingam** (1992(1) KLT 624), that in an appeal against an ad interim order of injunction, the appellate court cannot go into the merits of the case and decide the interlocutory application finally. In **Ahmu** v. **Ramalingam** (1992(1) KLT 624), the learned single Judge had relied on the decision in **Viswambharan** v. **Damodaran Nair** (1988 (2) KLT 32). 4. Sri.M.P.M.Aslam, the learned counsel appearing for the revision petitioners contended that the decision in **Ahmu** v. **Ramalingam (1992(1) KLT 624)** requires reconsideration. He submitted that the decision in **Viswambharan** v. **Damodaran Nair (1988 (2) KLT 32)** pertains to the powers of the nominated District Judge during vacation and the principles laid down in _**Viswambharan's case**_ cannot be taken as a precedent to consider the regular appellate powers of a District Court in an appeal from an ad interim order of injunction. Sri.Aslam submitted, relying on the decision in **Kerala Wakf Board** v. **Alam Aboobaker Sait (1987 (1) KLT 313** ), that the Wakf Board had no jurisdiction at all to entertain the Original Petition with respect to the reliefs prayed for therein. ## **C.R.P.(Wakf) No.71 OF 2013 D** :: 4 :: 5. Sri.T.Krishnanunni, learned senior counsel appearing for respondents 1 and 2, submitted that the findings of the Wakf Tribunal are legal and proper, that the decision in _**Ahmu's case**_ (supra) does not require reconsideration and that the Division Bench decision in 1987 (1) KLT 313 does not apply to the facts of the case. 6. We do not think it necessary to consider in this Revision whether the decision in 1992 (1) KLT 624 requires reconsideration or whether the Original Petition before the Wakf Board is maintainable in respect of the reliefs claimed therein. Whether the Original Petition is maintainable is a matter to be considered after the parties make their pleadings and produce the relevant documents. While disposing of the Revision, we do not think it proper to decide the question whether the Original Petition before the Wakf Board is maintainable. 7. It is submitted that if the Wakf Board is to deal with the interlocutory application and to pass a final order after hearing all the parties, it would cause much delay. On the other hand, if the ## **C.R.P.(Wakf) No.71 OF 2013 D** :: 5 :: interlocutory application is decided by the Wakf Tribunal, much time can be saved and both the parties would be benefited. In the facts and circumstances of the case and in the light of the submissions made by the counsel appearing for both parties, we set aside the order passed by the Wakf Tribunal and issue the following directions to the Wakf Tribunal: - (a) The Wakf Tribunal shall dispose of the interlocutory application for temporary injunction filed by respondents 1 and 2 in the Revision before the Wakf Board, after affording an opportunity of being heard to all the parties, as expeditiously as possible. - (b) The respondents in O.P.No.119 of 2012 shall file a counter statement in the application for temporary injunction within a period of two weeks from the date of appearance before the Wakf Tribunal. - (c) All the parties would be free to produce documents and such other relevant materials before the Wakf Tribunal in respect of their respective contentions. ## **C.R.P.(Wakf) No.71 OF 2013 D** :: 6 :: - (d) The parties shall appear before the Wakf Tribunal on 31.10.2013. - (e) The Wakf Board shall transmit the records of the case to the Wakf Tribunal so as to reach the same before 11.11.2013. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/