C.R.P.(WK) No.616 of 2017(A)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940** **AGAINST THE ORDER IN I.A.178/2016(REVIEW PETITION) IN W.O.S 19/2014 OF THE WAQF TRIBUNAL, ERNAKULAM DATED 24.10.2016** ## **PETITIONER(S)/RESPONDENTS 1,3,4 & 5** ## **1 R.V.ABDUL RASHEED** **AGED 57 YEARS, S/O. LATE KUNJAHAMED, RAYAMARAKKAR VEETTIL HOUSE, MARUDAYUR P.O., PAVARATTY, THRISSUR, PIN - 680 001.** ## **2 V.T. NOORUDHEEN,** **AGED 57 YEARS, S/O. MUHAMMED, KARAPURATH HOUSE, VENMANAD, PAVARATTY, THRISSUR, PIN - 680 001.** ## **3 P.K. MUSTAFA,** **AGED 47 YEARS, S/O. ABDUL RAHIMAN, MANKUZHIYIL HOUSE, VENMANAD, PAVARATTY, THRISSUR, PIN - 680 001.** ## **4 A.M. ABDUL MAJEED,** **AGED 62 YEARS, S/O. MOHAMMED, ARACHAN VEETTIL, VENMANAD, PAVARATTY, THRISSUR, PIN - 680 001.** **BY ADVS.SRI.ELVIN PETER P.J.** **SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **SRI.P.K.MOHAMMED PUZHAKKARA** ## **RESPONDENT(S)/PETITIONERS & RESPONDENTS 6 TO 10:** **1. VENMANAD MAHALLU HAYATHUL ISLAM COMMITTEE REPRESENTED BY ITS PRESIDENT, SHRI. YOUSUF N.P., S/O. AHAMEDKUTTY, AGED 58 YEARS, VENMANAD, PAVARATTY, THRISSUR, PIN - 680 001.** ## **2. SHRI. YOUSUF N.P.** **S/O. AHAMEDKUTTY, AGED 58 YEARS, POVIL HOUSE, PRESIDENT, VENMANAD MAHALLU HAYATHUL ISLAM COMMITTEE, PAVARATTY P.O., VENMANAD, THRISSUR DISTRICT, PIN - 680 001.** **3. N.A. BASHEER, AGED 36 YEARS, S/O. MUHAMMED ABDUL KADHER, HAJI, NALAKATH ARAKKAL, VENMANAD, PAVARATTY P.O, THRISSUR, SECRETARY, VENMANAD MAHALLU HAYATHUL ISLAM** **….2** **CRP(WAQF) 616/2017** **- 2 -** **COMMITTEE, PAVARATTY P.O., VENMANAD, THRISSUR DISTRICT, PIN - 680 001.** **4. VENMANAD MUSLIM JAMA-ATH, REPRESENTED BY ITS PRESIDENT, SHRI. N.P. MUHAMMED, S/O. IBRAHIM MUSLIYAR, VENMANAD, PIN - 680 001.** ## **5. N.P. MUHAMMED,** **S/O. IBRAHIM MUSLIYAR, AGED 77 YEARS, MANJHIYIL HOUSE, VENMANAD, PAVARATTY, THRISSUR DISTRICT, PRESIDENT VENMANAD MUSLIM JAMA-ATH, VENMANAD, PAVARATTY P.O., THRISSUR DISTRICT, PIN - 680 001.** ## **6. T.C. MUHAMMED MON,** **S/O. AHAMED, AGED 67 YEARS, PONGOTTIL HOUSE, P.O.VENMANAD, PAVARATTY, THRISSUR DISTRICT, SECRETARY, VENMANAD MUSLIM JAMA-ATH, VENMANAD, PAVARATTY P.O., THRISSUR DISTRICT, PIN - 680 001.** ## **7. KERALA STATE WAQF BOARD,** **REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, KOCHI - 17, PIN - 682 017.** **8. P.A. ABDUL JABBAR, ADVOCATE COMMISSION, EMPIRE BUILDING, ERNAKULAM, COCHIN** - **18, PIN - 682 018.** **R1-3 BY ADV. SRI.BABU KARUKAPADATH (CAVEATOR) R4-R6 BY ADV. SRI.T.K.HASSAN(B/O)** **R7 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD** **THIS CRP (WAQF ACT) HAVING BEEN FINALLY HEARD ON 05-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **“CR”** **K. HARILAL & A.M. BABU,JJ. = = = = = = = = = = = = = = = = = C.R.P.(WK) No.616 of 2017 - - - - - - -- - - - - - - - - - - - - -** _Dated this the 5[th] day of June, 2018_ **= = = = = = = = = = = = = = = = =** ## **O R D E R** ## **K. Harilal, J.** The Revision petitioners are respondents 1, 3, 4 and 5 in Interlocutory Application No.178 of 2016, a review petition filed in W.O.S. No.19 of 2014 of the Waqf Tribunal, Ernakulam. The aforesaid review petition was filed by the respondents 1 to 3 herein to review the order dated 30.04.2016 passed by the Waqf Tribunal, Ernakulam, whereby the Tribunal set the election proceedings of the 1[st] respondent in motion, by appointing a Returning Officer and directing the Returning Officer to conduct election, on the basis of voters list prepared as per family register and subscription register. 2. The said revision petition was filed, mainly on the ground that the order sought to be reviewed was one passed, without jurisdiction or authority of law. It is contended that a quasi judicial or judicial authority has no power to review an order of its own, unless the statute or plenary Acts confer such a review power. The Waqf Act does not confer any such power to review its own order. Thus, the impugned order itself was passed in ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 2 :-** exercise of the jurisdiction, which was not provided, under the Waqf Act, 1995 _(hereinafter referred to as 'the Act)_ . In short, the impugned order is ultravires, illegal and without jurisdiction. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 4. The question to be considered is, whether the Waqf Tribunal has jurisdiction to review its own order, in exercise of the power under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 _(hereinafter referred to as 'the CPC')_ ? 5 **.** We ourselves have noticed the decisions of the Supreme Court in **AIR 1965 SC 1457 (Patel Chunibhai Dajibha vs Narayanarao Khanderao Jambekar & anr.), AIR 1966 SC 641 (Harbhajan Singh vs Karam Singh & ors), AIR 1978 SC 1814 (Major Chandra Bhan Singh vs Latafat Ullah Khan & ors) and 2010 KHC 4641 (Kalabharati Advertising** **vs Hemant Vimalnath Narchania)** wherein the Supreme Court has held that in the absence of any power of review specifically conferred under the special enactment, quasi-judicial tribunals have no power of review. The concerned counsel appearing for both parties were asked to address on the applicability of the ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 3 :-** above propositions to the Waqf Tribunal constituted under Section 83 of the Waqf Act. 6. The learned counsel for the respondents/review petitioners invited our attention to Section 83 (5) of the Waqf Act 1995 and contended that the Waqf Tribunal shall be deemed to be a civil court and shall have the same powers as are vested in civil court under the CPC and thereby all the provisions of the CPC are made applicable to the proceedings before the Waqf Tribunals. Therefore, the Waqf Tribunal shall have the power of review as provided under Order XLVII of the CPC. 7. Per contra, the learned counsel for the revision petitioners/respondents submits that unless the power to review is specifically conferred by the special enactment, being a Tribunal, the Waqf Tribunal has no power to review its own order passed earlier. The learned counsel drew our attention to the last limb of Section 83(5) and highlighted the point that the provisions under the CPC are made applicable, while trying a suit or executing a decree or order only. It is further argued that the expression 'trying' must be understood in the limited meaning as examination of witness and final hearing only. Therefore, the ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 4 :-** power of review is seen specifically excluded, while conferring the powers provided under the CPC on the Waqf Tribunal. 8. To this argument, the learned counsel for the respondents invited our attention to Section 71 of the Waqf Act wherein the manner of holding inquiry is provided to the Waqf Board and submits that under Section 71 (2) certain provisions of the CPC, for enforcing the attendance of the witnesses and production of documents alone are conferred to the Waqf Board and the legislature was so conscious to exclude all other provisions of the CPC, including the power of review as provided under Order XLVII, while conferring the provisions under the CPC on the Waqf Board; whereas, while granting powers to the Waqf Tribunal, the Tribunal is equated with the Civil Court and granted same powers as may be exercised by a civil court under the CPC. Therefore, it cannot be held that entire provisions of the CPC cannot be made applicable to the proceedings before the Waqf tribunal, while determining a suit or original petition filed before the Waqf Tribunal. 9. We have meticulously gone through Sections 71 and 83 (5) of the Waqf Act. In Section 71 of the Waqf Act, it is ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 5 :-** specifically stated that for the purpose of an enquiry under the said section the tribunal shall have the same powers as are vested in a civil court under the CPC for enforcing the attendance of witness and production of the documents. 10. But, it is pertinent to note that as per Section 83(5) of the Act, “ _the Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, while trying a suit, or executing a decree or order”._ If the Waqf Tribunal is a deemed Civil Court, before which CPC as a whole is made applicable to procedure, necessarily it would follow that the Waqf Tribunal also shall have jurisdiction to review its own order, in exercise of the jurisdiction and power granted under Order XLVII Rule 1 of the CPC. Where the Waqf Tribunal is made equal to the Civil Court and CPC as a whole is made applicable to the procedure before it, the power of review is impliedly conferred and absence of special provision expressly granting power of review is insignificant. In the above view, the Waqf Tribunal is justified in passing the impugned order, in exercise of the jurisdiction and power conferred to it under Order XLVII Rule 1 of the CPC. ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 6 :-** 11. We are of the opinion that the legislature was so conscious and careful while granting the powers under the CPC to the Waqf Board and Tribunal. We are unable to accept the contention raised by the learned counsel for the revision petitioner that the last limb of Section 83 (5) “while trying a suit or executing a decree or order” must be understood in the limited meaning as examination of witness and final hearing only. 12. Further, we are of the opinion that the legislature has granted the entire powers as provided under the CPC to the tribunal by stating that the tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the CPC. In view of the first limb of Sec.83 (5), the last limb cannot be interpreted restrictively as contended by the learned counsel for the revision petitioner and the last limb has been given a broad meaning by conferring the entire provisions under the CPC to the tribunal. The above view is justified by the rule of harmonious interpretation. It follows that the Waqf tribunal shall have the power of review as conferred under Order XLVII of the CPC. 13. In the above analysis, we find that in view of Section ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 7 :-** 83(5) of the Waqf Act, the proposition laid down in the decisions referred to above cannot be made applicable to the procedure before the Waqf Tribunals. The above view is further supported by the decision of the Supreme Court in **2010 KHC 4641 (Kalabharati Advertising vs Hemant Vimalnath Narchania)** In the aforesaid decision, the Supreme Court held that “the power of review must be conferred by law either expressly/specifically or necessary implication and in the absence of any provisions in the Acts/rules review of an earlier order is impermissible as review is a creation of statute”. We are of the opinion that in the instant case, the power of review is conferred on the tribunal by necessary implications as provided under Section 83 (5) of the Waqf Act, though a provision is not specifically made. Where the entire provisions in the CPC are made applicable, the legislature was not expected to make a special provision again. In the above view, we find that the tribunal is justified in exercising the power of review. 14. It is also contended that the impugned order was passed in violation of the procedure contemplated under Order XLVII Rule 8 of the CPC As per Order XLVII Rule 8, _when an_ ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 8 :-** _application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit_ . It is discernible from the aforesaid provision that the review petition is required to be heard at first to consider the question, whether there are sufficient grounds to review the order passed earlier and if the court finds that there are sufficient grounds to review the order, the review petition can be allowed and thereafter, it is incumbent upon the court to open the case and re-hear the matter afresh, after affording an opportunity of being heard to all the parties in the suit or appeal, as the case may be. The above view is supported by the decision of this Court in _**Kizhakkekara**_ _**Thomas v. State of Kerala and Another**_ [2011(3)KHC 819]. In the above decision, this Court held that a joint reading of Subrules 4(2) and 8 of Order XLVII of the Code leaves no doubt that once a review is granted, the original order/judgment in respect of which review is granted became non-existent and then it is the function of the court to pass fresh judgment/order. 15. Going by the impugned order, it is seen that no such re-hearing was conducted after allowing the review petition. The ## **C.R.P.(WK) No.616 of 2017(A)** ## **-: 9 :-** Waqf Tribunal ought to have re-opened the case and heard the matter afresh. Thus, we find that the impugned order is vitiated by the procedural irregularity. Admittedly, the order, which was sought to be reviewed was a criptic and laconic order. 16. We have gone through the grounds under which the review petition was allowed and we also find that there are sufficient grounds to review the order dated 30.04.2016 passed earlier. Therefore, the Tribunal is directed to re-hear the matter afresh, in view of the order passed by this Court in C.R.P. Wakf No.673 of 2015, at the earliest, at any rate, within a period of three weeks from the date of receipt of a copy of this order. This revision petition is disposed of accordingly. **s** d/- Sd/- **K. HARILAL, JUDGE** sd/Sd/- **A.M. BABU, JUDGE** DST/sks //True copy// ## **C.R.P.(WK) No.616 of 2017(A)** **-: 10 :-**