E.M. Koya Haji v. Kerala Wakf Board (CRP(Wakf) Nos. 25 of 2020 & 28 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945** **CRP(WAKF) NO. 25 OF 2020** **AGAINST THE ORDER PASSED IN WOA NO.42/2019 DATED 10.7.2020 BY** **THE WAKF TRIBUNAL, KOZHIKODE** ## **REVISION PETITIONER/1ST RESPONDENT:** E.M.KOYA HAJI, AGED 84 YEARS, S/O.MAMU HAJI, EDAKOTH MEETHAL HOUSE, VELLIPARAMBU P.O., KOZHIKODE TALUK, KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008, SECRETARY, KUTTIKATTUR MUSLIM YATHEEM KHANA, KUTTIKATTUR, KOZHIKODE DISTRICT – 673 008. BY ADVS. G.SREEKUMAR (CHELUR) SRI.K.MUHAMMED THOYYIB ## **- RESPONDENTS/APPLICANT AND RESPONDENTS 2 TO 17:** 1 THIYYARUTHODIKAYIL MOHAMED, S/O.MAMU, AGED 66, KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673008. 2 PRESIDENT, KUTTIKKATTOOR MUSLIM JAMA-ATH MUSLIM COMMITTEE, VELLIPARAMBU P.O., KOZHIKODE TALUK, KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. 3 V.UNNIMOYI HAJI, S/O.KUNHAMMED HAJI, AGED 41, KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. 4 V.MOHAMMED, S/O.KASIM KUTTY, AGED 53, KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. 5 V.KUNJAHAMMED HAJI, AGED 76, S/O.UNNIMOYIN, KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. 6 M.MOHAMMED, S/O.MAMUKUTTY, AGED 38, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. 7 K.MOHAMMED, AGED 38, S/O.KUNHALI, KUTTIKATTUR AMSOM DESOM, **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 2 - VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 8 T.M.ABDULLA KOYA, AGED 59, S/O.IMBICHIKKAMMU, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 9 K.SIRAJ, AGED 27, S/O.ALI, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 10 T.KUNHIKOYA, AGED 43, S/O.ABU, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 11 P.ABDURAHIMAN, AGED 49, S/O.AHAMMED HAJI, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 12 T.CHERIA MOHAMMED, AGED 43, S/O.HASSAN, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 13 P.V.ABDURAHIMAN, AGED 53, S/O.BEERAN, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 14 K.KHADER, AGED 38, S/O.MARAKKAR, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 15 C.RIYAS, AGED 29, S/O.MARAKKAR, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 16 P.ABBAS, AGED 62, S/O.PACKER, KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT - 673 008. - 17 KERALA WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD, KALOOR P.O., COCHIN - 682 017. - 18 *ADDL.R18. FATHIMA, W/O LATE MUHAMMED, THIYYAR THODIKAYIL HOUSE, KUTTIKKATTOR P.O, KOZHIKODE – 673 008. - 19 *ADDL.19. RAMLA, D/O MUHAMMED, THIYYAR THODIKAYIL HOUE, KUTTIKKATTOR P.O, KOZHIKODE – 673 008. **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 3 20 *ADDL.R20. SOUDHA.T.T, W/O ABDUL AZEES, 44 YEARS, 9/368A, PADINJARAYIL HOUSE, POLUR, KURUVATTUR, KOZHIKODE – 637571. 21 *ADDL.R21. ZEENATH.T.T, W/O ABOOBACKAR, CHALIPURAYIL, PAINGOTTUPURAM, KUNNAMANGALAM, KOZHIKODE – 673 571. 22 *ADDL.R22. HAFSATH T.T, W/O ABDUL KAREEM, BOOMIDINJAKUZHIYIL, POOVATTUPARAMBA, PERUVAYAL, KOZHIKODE – 673 008. 23 *ADDL.R23.RIYAS.T.T, S/O LATE MUHAMMED, THIYYAR THODIKAYIL HOUSE, KUTTIKKATOOR PO, KOZHIKODE – 673 008. 24 *ADDL.R24. HAJARA, W/O ABDUL AZEEZ, KOLLALATH THAZHAM, ANAKKUZHIKKARA, PUVTTUPARAMBA, PERUVAYAL KOZHIKODE – 673 008. 25 *ADDL.R25. AKBAR SADIQUE T.T, S/O LATE MUHAMMED, THIYYAR THODIKAYIL HOUSE, KUTTIKKATTOOR PO, KOZHIKODE -673 008. (*ADDITIONAL R18 TO R25 ARE IMPLEADED AS PER ORDER DATED 01/11/2023 IN I.A.NO.2/2021.) BY ADVS. G.HARIHARAN SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD PRAVEEN.H. K.S.SMITHA T.T.SHANIBA M.V.VIPINDAS AMAL DEV D AKHILA P. JINU ANTONY SISIRA M.SHIRINE ANJALY T.A JAMSHEED HAFIZ SRI S SREEKUMAR SR.ADV **THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 01.11.2023, ALONG WITH CRP(WAKF).28/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945** **CRP(WAKF) NO. 28 OF 2020** **AGAINST THE ORDER PASSED IN WOA NO.56/2019 DATED 10.7.2020 BT** **THE WAKF TRIBUNAL, KOZHIKODE** ## **REVISION PETITIONER/1ST RESPONDENT:** E.M.KOYA HAJI, AGED 84 YEARS, S/O MAMU HAJI,EDAKOTH MEETHAL HOUSE, VELLIPARAMBU P.O, KOZHIKODE TALUK, KUTTIKATTUR AMSOM,VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008,SECRETARY, KUTTIKATTUR MUSLIM YATHEEM KHANA, KUTTIKATTUR, KOZHIKODE-673 008. BY ADV G.SREEKUMAR (CHELUR) ## **RESPONDENTS/APPLICANT AND RESPONDENTS 2 TO 17S:** 1 PRESIDENT, KUTTIKKATTOOR MUSLIM JAMA-ATH MUSLIM COMMITTEE, VELLIPARAMBU P.O,KOZHIKODE TALUK, KUTTIKATTUR AMSOM,VELLIPARAMBU DESOM, KOZHIKODE DISTRICT-673 008. 2 V.UNNIMOYI HAJI, AGED 41 YEARS, S/O KUNHAMMED HAJI,KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. 3 V.MOHAMMED, AGED 53 YEARS, S/O KASIM KUTTY,KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT-673 008. **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 5 - 4 V.KUNJAHAMMED HAJI, AGED 76 YEARS, S/O UNNIMOYIN,KUTTUKATTUR AMSOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 5 M.MOHAMMED, AGED 38 YEARS, S/O MAMUKUTTY,KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 6 K.MOHAMMED, AGED 38 YEARS, S/O KUNHALI,KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 7 T.M.ABDULLA KOYA, AGED 59 YEARS, S/O.IMBICHIKKAMMU,KUTTIKATTOOR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 8 K.SIRAJ, AGED 27 YEARS, S/O ALI,KUTTIKATTOOR AMSOM DESOM, VELLIPARMBU DESOM,KOZHIKODE DISTRICT-673 008. - 9 T.KUNHIKOYA, AGED 43 YEARS, S/O ABU,KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 10 P.ABDURAHIMAN, AGED 49 YEARS, S/O AHAMMED HAJI,KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 11 T.CHERIA MOHAMMED, AGED 43 YEARS, S/O HASSAN,KUTTIKATTOOR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 12 P.V.ABDURAHIMAN, AGED 53 YEARS, S/O BEERAN,KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 13 K.KHADER, AGED 38 YEARS, S/O MARAKKAR,KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. - 14 C.RIYAS, AGED 29 YEARS, S/O MARAKKAR,KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 6 15 P.ABBAS, AGED 62 YEARS, S/O PACKER,KUTTIKATTUR AMSOM DESOM, VELLIPARAMBU DESOM,KOZHIKODE DISTRICT-673 008. 16 THIYYARUTHODIKAYIL MOHAMED, AGED 66 YEARS, S/O MAMU,KUTTIKATTUR AMSOM, VELLIPARAMBU DESOM, KOZHIKODE DISTRICT-673 008. 17 KERALA WAKF BOARD, REPRESENTED BY ITS CHIEF EXEUTIVE OFFICER, V.I.P.ROAD, KALOOR.P.O, COCHIN-682 017. BY ADVS. G.HARIHARAN SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD SRI.PRAVEEN.H. SMT.K.S.SMITHA SHRI.AMAL DEV D SMT.T.T.SHANIBA SRI.M.V.VIPINDAS SMT.AKHILA P. SISIRA M.SHIRINE JAMSHEED HAFIZ **THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 01.11.2023, ALONG WITH CRP(WAKF).25/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 7 ## **AMIT RAWAL & C.S.SUDHA, JJ.** **------------------------------------------------------CRP(Wakf) No.25 of 2020 & CRP(Wakf) No.28 of 2020 ----------------------------------------------------** **Dated this the 01[st] day of November, 2023** ## **O R D E R** ## **Amit Rawal, J.** 1. This order shall dispose of two revision petitions; C.R.P.(Wakf) Nos.25/2020 and 28/2020 arising out of the common order of the Waqf Tribunal dated 10/07/2020 dismissing Wakf Original Application Nos.42/2019 and 56/2019. The facts leading to the litigation between the two sets of society in brief are as follows : On 30.12.1954, Kuttikkattoor Muslim Jama-ath Committee was registered under the Societies Registration Act, 1860 whereas Kuttikkattoor Muslim Yatheem Khana was registered as Wakf under erstwhile provisions of the Wakf Act, 1954, on 20.09.1961. The Wakf under the unamended and amended provisions of the Act means a permanent dedication by any person of any movable or immovable property for any purpose recognized by Muslim law as pious, religious or charitable. By virtue of the following five **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 8 documents, the respondent Jama-ath acquired the ownership document Nos.4356/1987 (item No.1), 3661/1988 (item Nos.2 & 3), 1692/1990 (Item No.4) and 1477/1992 (Item No.5). It has shops, schools, training institutions, orphanage etc. The whole purpose as per the definition of Wakf is for pious purpose as well as for orphanage. Few sets of Muslim community registered themselves under the Societies Registration Act in 1992 as Kuttikattor Muslim Yatheem Khana but all the proceeds of rent etc. were being apportioned to the Jama-ath. 2. The then President of Jama ath Mr. Abdul Khader in his individual capacity without any authority or power executed a deed bearing no. 139/1999 on 25.02.1999 by assigning not only title, interest but possession as well. This fact did not come to the notice of the Jama-ath. In the year 2005 the aforesaid Society (hereinafter called YK) submitted an application under provisions of Section 36 (1) of the Wakf Act, 1995, for the purpose of Registration, to the Board. 3. The Board, as per the provisions of the Section invited objections from the society. Jama-ath raised objection and alleged that registered document no.139/1999 could not have been executed in favour of 'YK' as the character and nature of the property remained as Wakf. The **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 9 Wakf property cannot be alienated in legal parlance and also as per the various pronouncements. Simultaneously a civil suit bearing No.72/2006 was filed, wherein two O.As. were preferred challenging the registered documents, as also for amendment. However the said suit was dismissed for default. Noticing all these factors, the Board vide decision dated 16.11.2015, allowed the application of YK and registered them as a Wakf. It is the said order which was assailed before the Tribunal by the Jama-ath and one other interested third party who had interest in protection and welfare of the property belonging to the Jama-ath. 4. Tribunal vide the impugned order, noticing the provisions of Section 51(1A) of the 1995 Act, set aside the document 139/1999 on the ground that there could not be any alienation without the permission of the Court. The said order has been assailed vide two C.R.Ps. in view of the fact that two W.O.As. were preferred before the Tribunal. 5. Mr.Sreekumar Chelur, the learned Senior counsel representing the petitioners while challenging the order, raised the following submissions: - (1) The four(4) documents in five(5) items, i.e. 4356/1987 (item No.1), 3661/1988 (item No.2 & 3), 1692/1990 (Item No.4) and 1477/1992 (Item No.5) did not envisage that the nature and character of the **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 10 property was Wakf. It was only for a charitable purpose and in the absence of any dedication to the Wakf, there was no need of taking permission of the Board as envisaged under Section 51(1A) of the Act. - (2) YK was not properly advised and were amiss in submitting an application under Section 36A and sought indulgence of this Court at this stage for withdrawal of the said application. - (3) In support of the first argument, the _ratio decidendi_ culled out in paragraphs 8 and 10 of the judgment of the Division Bench of this Court in **Kerala State Wakf Board v. Ansari Charitable Trust, 2018 (5) KHC 548** has been cited wherein it was observed as under: _“8. A_ pe _rusal of the Trust deed dated 08/09/1979 revealing the objects of the Trust undoubtedly reveal that it would satisfy the second ingredient to create a waqf. In other words, it would reveal the objects of the Trust are those recognised by Muslim law as pious, religious or charitable. But, the crucial question is whether there is any dedication of property, movable or immovable, for the said purpose. We are of the considered view that even if objects of a Trust are recognised by Muslim Law as pious, religious or charitable, in order to bring it within the definition of Waqf under S.3(r) of the Waqf Act the movable or immovable property involved must have been permanently dedicated by a person for those purposes recognised by Muslim law. In other words, the question whether the property in question was dedicated for such a purpose would decide the question whether it is a Waqf or a Trust. We are fortified in this view by a decision of_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 11 _Hon'ble Apex Court in Maharashtra State of Wakfs v. Yusuf Bhai Chawala and others, 2012 KHC 4294 : 2012 (6) SCC 328 : 2012(2) KLT SN 102 : AIR 2012 SC 2362. In the contextual situation, it is worthy to extract paragraph 38 of the said decision. It reads as under:_ _“There is vast difference between Muslim wakfs and trusts created by Muslims. The basic difference is that wakf properties are dedicated to God and the “wakif” or dedicator does not retain any title over the wakf properties. As far as trusts are concerned, the properties are not vested in God. Some of the objects of such trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognised as pious, do not divest the author of the trust from the title of the properties in the trust, unless he relinquishes such title in favour of the trust or the trustees. At times, the dividing line between public trusts and wakfs may be thin, but the main factor always is that while wakf properties vest in God Almighty, the trust properties do not vest in God and the trustees in terms of deed of trust are entitled to deal with the same for the benefit of the trust and its beneficiaries” (Emphasis added)_ 10. _Be that as it may, the question is whether there is any permanent dedication of movable or immovable property and whether the properties would vest with the God Almighty, going by the deed in question. Certainly, it is not a question of law, it is a pure question of fact. The recital in the deed in question dated 08/09/1979 has to be looked into for deciding the question whether there was any permanent dedication of the properties scheduled thereunder. In the Trust deed dated 08/09/1979, the powers of the Board of the Trust have been provided under Clause 8 and sub-claue (e) thereunder reads thus:_ _“The Board shall not have the power to sell the properties of the Trust or any part thereof, except in the cases of unavoidable necessity and circumstances or for purchasing other more beneficial properties movable or gift. But the Board shall have the power to pawn, pledge or mortgage the Trust properties to borrow and to raise funds and loans for the purpose of this Trust and no such sale, pawn, pledge or_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 12 _mortgage shall be valid unless made after the decisions of the Board by 75% of its existing strength and all such transactions and purchases shall be made in the name of the Chairman of the Trust.”_ _(Emphasis added)_ _Clause 20 of the deed runs as follows:_ _“Irrevocability:-_ _This Trust is an irrevocable Trust and neither I nor my descendants have any right or authority to revoke it.”_ (4). YK was in a fiduciary capacity Jama-ath. In fact the whole indent of five items contained in the four documents was for the beneficial and the welfare of the YK which is mostly running the orphanages, schools, colleges and a few shops which had been let out. In the absence of any character as wakf, there was no bar to move an application under Section 36 in case this Court do not grant the permission for withdrawl of the application under Section 36. (5). Despite repealment of Benami Transactions (Prohibition) Act, certain exceptions have been carved out protecting such transactions in case it is in respect of a fiduciary capacity, wife or an unmarried daughter. (6). Learned Tribunal was not enjoined upon to set aside the **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 13 registered document in view of the fact that the suit filed in the same manner was not pursued. Thus the remedy availed was hit by the provisions of Section 11 of the Code of Civil Procedure. 6. On the other hand Mr.S.Sreekumar, learned Senior counsel countered the argument by citing the judgment of the Division Bench of this Court quoted in **Saidu Mohammed v. Chief Executive Officer, Kerala State Wakf Board, Kochi, 2018 (3) KHC 135** to contend that once the property is dedicated as wakf, its character and nature would always remain as a wakf and cannot be re-created or adorned by submission of an application under Section 36. As the Jama ath had already been registered as a wakf in 1962, all properties acquired thereafter would assume the character of wakf. The five items referred to in the four registered documents dedicated by society could not have attained different character as tried to be projected like charitable trust etc. Serious objections with regard to the request for withdrawal of the application was taken, as it would entail into multifariousness of litigation as finding of fact and law has already been arrived at. 7. Board did not go into the contents of the registered document bearing no.139/1999 as it tantamount to transfer of title, interest and **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 14 possession when the sale, in view of the judgment cited above, is strictly prohibited. There was no resolution authorizing the Jama ath/society or the President to execute the document dated 25.02.1999 by document 139/1999. It was a fraud played upon the society which surfaced only for the first time when the application in 2005 under Section 36(1) was submitted. 8. Mr.Jamsheed Hafiz, the learned counsel appearing on behalf of the Board adopted the argument of Mr.S.Sreekumar, the learned Senior Counsel and submitted that there was an apparent collusion between the then President of Jama ath with the members of the YK. By virtue of amendment in 2013 by Act No.27, the permission or non permission of sale of a wakf property is impermissible and if any, without any independent declaration be void. 9. We have heard the learned counsel for the parties and appraised the paper books. 10. Before adverting to the rival contentions, it would axiomatic to extract the provisions of Section 51(1A) and Section 36 of the Act much less definition of wakf as prescribed under Section 3(r). Section 51(1A) of the Act reads as under: **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 15 _“xxxxxxx_ ## _xxxxxxxx_ _(1A) Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab inito:-_ _PROVIDED that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board;_ _PROVIDED FURTHER that nothing contained in this sub-section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board:_ ## _PROVIDED ALSO that-_ - _(a) the acquisition shall not be in contravention of the Places of [xxx] Worship (Special Provisions) Act, 1991 (42 of 1991);_ - _(b) the purpose for which the land is being acquired shall be undisputedly for a public purpose;_ - (c) _no alternative land is available which shall be considered as more or less suitable for that purpose;and_ - _(d) to safeguard adequately the interest and objective of the waqf, the compensation shall be at the prevailing market value or a suitable land_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 16 _with reasonable solatium in lieu of the acquired property.”_ ## Section 36 of the Act reads as under: _“ (1) Every waqf, whether created before or after the commencement of this Act, shall be registered at the office of the Board._ _(2) Application for registration shall be made by the mutawalli:_ _PROVIDED that such applications may be made by the waqf or his descendants or a beneficiary of the waqf or any Muslim belonging to the sect to which the waqf belongs._ _(3) An application for registration shall be made in such form and manner and at such place as the Board may be regulation provide and shall contain following particulars:-_ _(a) a description of the waqf properties sufficient for the identification thereof;_ _(b) the gross annual income from such properties;_ _(c) the amount of land revenue, cesses, rates and taxes annually payable in respect of the waqf properties;_ _(d) an estimate of the expenses annually incurred in the realisation of the income of the waqf properties;_ _(e) the amount set apart under the waqf for-_ _(i) the salary of the mutawalli and allowances to the individuals;_ _(ii) purely religious purposes;_ _(iii) charitable purposes; and_ _(iv) any other purposes;_ _(f) any other particulars provided by the Board by_ _regulations._ _(4). Every such application shall be accompanied by a copy of the waqf deed or if no such deed has been executed ora copy thereof cannot be obtained, shall contain full particulars, as far as they are_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 17 _known to the applicant, of the origin, nature and objects of the waqf._ _(5) Every application made under sub-section (2) shall be singed and verified by the applicant in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of pleadings._ _(6) The Board may require the applicant to supply any further particulars or information that it may consider necessary._ _(7) On receipt of an application for registration, the Board may, before the registration of the waqf, make such inquiries as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars therein and when the application is made by any person other than the person administering the waqf property, the Board shall, before registering the waqf, give notice of the application to the person administering the waqf proeprty and shall hear him if he desires to be heard._ _(8) In the case of auqaf created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of auqaf created after such commencement, within three months from the date of the creation of the waqf:_ _PROVIDED that where there is no Board at the time of creation of waqf, such application will be made within three months from the date of establishment of the Board.”_ ## Definition of wakf as prescribed under Section 3(r) reads as follows:- _“(r) “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-_ _(i) a wqf by user but such waqf shall not cease to be a waqf by_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 18 _reason only of the user having ceased irrespective of the period of such cesser;_ _(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;_ _(iii)“grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and_ _(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognized by Muslim law,_ _and “waqf” means any person making such dedication.”_ 11. On perusal of the definition of 'wakf', there is no such provision that there has to be a dedication to almighty but it has to be by any person of any movable or immovable property for any purpose recognized by Muslim law. Be that it may be before the almighty or pious, religious or charitable. Before the amendment caused in Section 51 by virtue of Act No.27 of 2013, there was a provision for sale of the wakf property with the permission of the Board and words atheist/taken off was also effaced. The Division Bench judgment in **Saidu Mohammed** (Supra) in paragraph No.8 **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 19 held that the property declared as a wakf, cannot be alienated, which reads as under: _“8. Regarding the purchase of the property in the year 1987, the contention of the petitioner is that it was an oral sale and no document whatsoever was executed in connection with the aforesaid transaction of immovable property. According to him, even after the receipt of an amount of Rs.8,750/- as sale consideration, the Jama-ath had not executed the sale deed, so far. In short, his contention is that by effecting such an oral sale and giving the sale consideration of Rs.8,750/- he became its absolute owner. As noticed herein before, his case is that it is after such purchase that he reclaimed it and constructed a workshop thereon. We will, now consider the tenability of this contention. Firstly, the revision petitioner did not have a case that he had purchased the property in the year 1987 and for the said transaction the Jama - ath had obtained previous sanction from the Wakf Board. At the time of alleged transaction in the year 1987, the repealed Act viz., Wakf Act, 1954 was in force. The said Act stood repealed only by virtue of the provisions under S.112 of the Wakf Act, 1995. Going by S.36A of Wakf Act, 1954, there was a statutory interdiction for the transfer of immovable property of the Wakf, without the previous sanction of the Board. The said provision reads thus:_ _“notwithstanding anything contained in the Wakf deed, no transfer of any immovable property of a Wakf by way of--i) sale, gift, mortgage or exchange; or ii) lease for a period exceeding 3 years in the case of agricultural land, or for the period exceeding one year, in the case of non – agricultural land or building, shall be valid without the previous sanction of the Board._ _In the impugned order passed by the Wakf Tribunal, the validity of the alleged transfer of the property was considered in the light of S.51(1) of the Wakf Act, 1995. The Wakf Act, 1995 came into force only with effect from 22/11/1995 and enforceable with effect from 01/01/1996. The corresponding provision to S.51(1) of the Wakf Act, 1995 in the Wakf Act, 1954 was S.36A, which we have extracted hereinbefore. It is to be noted that both under S.36A of the repealed Act and under S.51(1) of the Wakf Act, 1995, there is a statutory interdiction to the transfer of immovable property of the Wakf without prior sanction of the Board. In short, even under the Wakf Act, 1954 which was in force at the time of the alleged transaction, no valid transaction of an immovable property belonging to a Wakf registered with the Wakf Board was possible_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 20 _without the previous sanction of the Wakf Board. After evaluating the evidence on record and appreciating the rival contentions, the Tribunal had arrived at a finding that the transfer of the property in question was effected without prior sanction of the Board and therefore, it is void in terms of the provisions under S.51(1) of the Wakf Act, 1995. In fact, the first respondent had also arrived at a finding that the claim of the petitioner that he purchased the property has no value at all as no prior permission was obtained from the Wakf Board for effecting such a sale. In the light of the indisputable position that the transfer of the property in question was effected allegedly during the year 1987 while the repealed Act was in force, and taking into account the statutory interdiction under S.36A thereunder, we see no reason at all to hold that the Tribunal had gone wrong in holding that the alleged transaction cannot be recognized as a legal transaction. In short, we do not find any reason at all to interfere with impugned judgment passed by the Tribunal upholding order dated 24/12/2009 passed by the Chief Executive Officer of the Wakf Board.”_ 12. We would be failing in our duty in not referring to certain clauses of document dated 25.02.1999. By looking the same it cannot be termed to be a dedication but complete transfer of all right, title and interest and absolute ownership. _“Among the below mentioned schedule properties described as item Nos. 1 to 5, Item No. 1 property was lying in the name of Anakkuzhi Thekke Veettil Muhammed Basheer, Item No. 2 and 3 Properties were lying in the name of Parakkandi Kuttiassan, Item No. 4 Property was lying in the name of Edakkoth Meethal Ayisha Hajjumma, Parambadi Marakkar and Thayyil Thodiyil Mamu and Item No. 5 Property was lying in the name of Pallath Moosakkoya Kunjahammed separately with rights of Janmam, title, possession and enjoyment in their individual names independently._ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 21 _Thereafter, the properties were in absolute possession of the Kuttikkattoor muslim yatheem khana as the properties were purchased with right, title, possession and enjoyment in the name of Kuttikkattoor Muslim Yatheemkhana, which was functioning under Kuttikkattoor Muslim Jama-Ath vide documents registered as follows; Item No. 1 Property was purchased from Anakkuzhi Thekke Veettil Muhammed Basheer on 28th October, 1987 registered at the Chevayur S.R.O vide Book 1, Volume 635 and pages from 107 to 110 vide Document No. 4356 of 1987. Item Nos. 2 and 3 properties were purchased from above mentioned Parakkandi Kuttiassan on 14th September, 1988 registered at the Chevayur S.R.O vide Book 1, Volume No. 674, Pages 207 to 211 vide Document No. 3661/1988. Item No. 4 Property was purchased from Edakkothu Meethal Ayisha Hajjumma and 3 others on 10th December, 1990 registered at the Mavur S.R.O. vide Book 1, Volume No, 29, Pages from 63 to 65 vide Document No. 1692/1990, and the Item No. 5 property was purchased from Pallath Moosa Koya and 2 others on 30th June, 1992 registered at at the Chathamangalam S.R.O vide Book 1, Volume No. 270, Pages from 12 to 17 vide document No. 1477/1992._ _In this manner, all the above properties came to be in absolute possession and enjoyment of Kuttikkattoor Mulsim Yatheemkhana committee in right, title and enjoyment. In the item Nos. 2, 3 and 5 properties, Kuttikkattoor Yatheemkhana committee constructed a shopping complex building, an orphanage building and other buildings including a hall for prayer, spending the self-earned fund of yatheemkhana committee as per the approval certificates by submitting the applications and plans before the panchayat offices of Peruvayal and Kunnamangalam. By improving and developing_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 22 _the properties, the Kuttikkattoor Muslim Yatheemkhana Committee kept the properties in the absolute possession with the earning out of the developed properties by leasing out shop rooms. And the Yatheemkhana meets and pays all the expenses like Panchayath tax, janmam tax etc in the name of Kuttikkattoor Muslim Yatheemkhana Committee and owns the properties with absolute possession and enjoys the properties including with the right of alienation on its own. Therefore, the Improvements and developments made in the scheduled properties are completely belong to Kuttikkattoor Muslim Yatheemkhana Committee itself with complete right, title, possession and interest in its exclusive name to the exclusion of all others._ _Though it was mentioned in the deeds, at the time of purchase of the scheduled properties in the name of Kuttikkattoor yatheemkhana committee, that the Kuttikkattoor Yatheemkhana was functioning under the Kuttikkattoor Jama-Ath, the scheduled properties were purchased by the Kuttikkattoor Yatheemkhana Committee alone out of its own resources, whereas Kuttikkattoor Muslim Jama-Ath had no any role or activity or whatsoever in it or has not spent any of kuttikkattoor Jamaath's money or resources to purchase the scheduled properties at the time of purchase of the scheduled properties in the name of Kuttikkattoor Muslim Yatheemkhana Committee._ _Since there has been a mention in the above said purchase deeds that the Kuttikkattoor Yatheemkhana functions under the Kuttikkattoor Muslim Jama-Ath, the Kuttikkattoor Yatheemkhana Committee is in slight apprehension that Kuttikkattoor Muslim Jama-Ath may raise any claim in future or seek any interest in future in the properties of the Kuttikkattoor Yatheemkhana_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 23 _Committee. In order to avoid the future disputes / claims / confusions/deficiency, if any, and for the security and existence of the scheduled properties under yatheem khana committee and to reaffirm the Yatheemkhana committee's independent and unique characteristics, it was proposed by the Kuttikkattoor Muslim Yatheemkhana committee by its resolution dated 01.02.99 to request the Kuttikkattoor Muslim Jama-Ath to execute a deed relinquishing all rights, if any, and claims, if any, in the name of the Kuttikkattoor Yatheemkhana Committee in respect of the above said properties. As per the request of the Kuttikkattoor Yatheem Khana committee, the General body meeting of the Kuttikkattoor Muslim Jamaath which was held on 10.02.1999 unanimously passed the resolution to relinquish all the rights of Kuttikkattoor muslim Jamaath in the scheduled properties, if any, in favour of the Kuttikkattoor Muslim Yatheemkhana Committee and to accept any meagre value for the same. Pursuant to the above unanimous decision, the Kuttikkattoor Muslim Jamaath has authorized me to execute this deed for and on its behalf as its representative in my capacity as its present President._ _For the above reasons, I hereby execute this deed in favour of Kuttikkattoor Yatheemkhana Committee on behalf of Kuttikkattoor Jama-Ath in my capacity of its present President, and transfer all the right, title and interest hitherto vested in the Jama Ath absolutely, for a meagre consideration value of Rs. 5000/-. 1 admit and acknowledge having received the entire consideration value of Rs.5000/- from you as you being the present President of Kuttikkattoor Yatheemkhana Committee. By this deed, I handed over the absolute possession of the schedule properties and hereafter,_ **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 24 _Kuttikkattoor Jama-Ath shall cease to have any right, title, possession, interest or any claim whatsoever if any in the schedule properties._ _Therefore, in future also the Kuttikkattoor Yatheemkhana Committee shall continue and keep the scheduled properties in absolute possession as the complete owner to run the educational institutions in the scheduled properties, collect the revenues like rent from the tenants by virtue of its present owner of the schedule properties with right, title, possession and interest including the right of alienation on its free will and discretion of Kuttikkattoor Yatheemkhana Committee. Similarly, except the Kuttikkattoor Yatheemkhana Committee, the Kuttikkattoor Muslim Jama-Am committee shall not have any claim/ liabilities/ responsibilities on the properties and assets of the Kuttikkattoor Yatheemkhana Committee herefater.”_ 13. Resolution authorizing the then President has not seen the light of the day. It is settled law that the Society runs through resolutions. There cannot be any authorization without resolution. Thus the then President could not have, in law, transferred or assigned the right, title and interest by virtue of document dated 25.02.1999. Registration thereof _per se_ is void _ab initio_ . The argument of Mr.Sreekumar Chelur regarding non maintainability of challenge to the order of the Board in view of dismissal of the suit for prosecution would not merit consideration as the strict principle of CPC **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 25 would not be applicable. Even otherwise, as per Section 85, the jurisdiction of the civil court will be ousted. Once the document could not have conferred a title and interest, the question of creation of the trust at a subsequent stage would pale into insignificance. The Tribunal by noticing the contents of all the documents containing the five items of the property, noticed that YK had vide resolution dated 01.02.1999 decided to seek permission from the Juma-ath, but that resolution has also not seen the light of the day, to talk of the resolution authorizing the then President of Jama ath. The legislation in their wisdom has come down heavy while introducing Section 1(A) in Section 51 of the Act by virtue of the Act 27 or Act 23 as there had been a series of cases where persons without authorization had been alienating the property. There is also no force in the argument of Mr.Chelur with regard to the applicability of the ratio in **Ansari Charitable Trust** ( _supra_ ) as the argument attempted to be raised was never raised either before the Board or before the Tribunal and such argument for the first time cannot be taken. 14. The order of the Tribunal by noticing the provisions of the Act, setting aside the document in view of the finding herein above, do not suffer from any illegality or perversity to form a different opinion while **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 26 exercising the powers of revision petition under Section 83(9) of the Wakf Act, 1995. Accordingly both revision petitions, upholding the order of the Tribunal, are dismissed. **Sd/-** **AMIT RAWAL JUDGE** **Sd/C.S.SUDHA JUDGE** ak **CRP(Wakf) No.25 of 2020 & CRP(Wakf)No.28/2020** 27 ## **APPENDIX OF CRP(WAKF) 25/2020** PETITIONER ANNEXURES:Annexure A1 A TRUE COPY OF THE SALE DEED NO. 139/1999 OF KOZHIKODE SRO DATED 25.02.1999. Annexure A2 A TRUE COPY OF THE TRANSLATION OF THE SALE DEED NO. 139/1999 OF KOZHIKODE SRO DATED 25.02.1999. Annexure A3 A TRUE COPY OF THE ORDER OF THE KERALA STATE WAKF BOARD DATED 16.11.2015 IN E.P. NO. 4409/2005.