K. Prabhakaran v. Seethi Marakarakath Alikooya Waqf & Others (O.P.(WAKF) No. 3 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 OP (WAKF) NO. 3 OF 2020** **AGAINST THE ORDER DATED 17.01.2020 IN IA NOS.119 AND 120 OF 2020 IN OS NO.246/2019 OF WAQF TRIBUNAL, KOZHIKODE** ## **PETITIONER/3RD RESPONDENT IN I.A./3RD DEFENDANT:** K. PRABHAKARAN,S/O.NARAYANAN NAIR, KUNDOLAMKANDY, BALUSSERY AMSOM DESOM, BALUSSERI P.O., KOYILANDY TALUK, PIN - 673 612. BY ADV AVM.SALAHUDIN ## **RESPONDENTS/PETITIONER AND RESPONDENTS NOS.1,2,4,5:** 1 SEETHI MARAKARAKATH ALIKOYA WAQF, REPRESENTED BY MUTHAWALLY, S.V.IMBICHIPATHUMMABI, AGED 82 YEARS, D/O.SEETHI MARAKARAKATH ALIKOYA,14/691, PREMIER VIA,WEST KALLAI, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK - 673 001. 2 T.RAJEEVAN NAMBIAR, AGED 46 YEARS, S/O.SANKARAN NAMBIAR, THERUVATHKANDI, ATHOLI VILLAGE, MODAKKALUR DESOM, KOYILANDY TALUK - 673 323. 3 K.CHANDRAN, AGED 50 YEARS, S/O.CHATHU, KOYYALUMMAL, NARIPPATTA DESOM, NARIPPATTA VILLAGE, VADAKARA TALUK - 673 506. 4 T.K.BALAN NAIR, AGED 68 YEARS, S/O.ERECHAN NAIR, THANNIKUNDUNGAL HOUSE, KAKKUR PANCHAYAT, PUNNASSERY AMSOM, KUTTAMBUR DESOM, KOZHIKODE TALUK - 673 585. 5 KUNIYIL VALAPPIL RAJEEVAN, AGED 49 YEARS, S/O.GOVINDAN NAIR, VILAYATTUR AMSOM DESOM, IRINGATH P.O., KOYILANDY TALUK - 673 523. 6 SHEEJA, W/O.BABURAJ, AAYATTU CHALIL, IRAVANNUR P.O., MADAVOOR, KOZHIKODE - 673 585. 7 KERALA STATE WAQF BOARD CHIEF EXECUTIVE OFFICER, REGIONAL OFFICE, EROTH CENTRE, KASABA AMSOM DESOM, O.P.(WAKF) No. 3 of 2020 2 KOYILANDY TALUK - 673 001. BY ADVS. SRI.E.NARAYANAN - R1 SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD **THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(WAKF) No. 3 of 2020 3 ## **S.V.BHATTI & VIJU ABRAHAM, JJ** **----------------------------------------------------O.P.(WAKF) No. 3 of 2020** **-----------------------------------------------Dated this the 22[nd] day of September, 2021** ## **JUDGMENT** ## **Viju Abraham, J.** The petitioner is the 3[rd] defendant in O.S. No.65 of 2016 (subsequently renumbered as O.S. No.246 of 2019) before the Waqf Tribunal, Kozhikode. The suit was filed by the 1[st] respondent herein seeking a permanent prohibitory injunction as against defendants 1 to 6 and their men from entering into the plaint schedule property and committing waste, etc. It is averred by the petitioner that the issues in the suit were framed by the Waqf Tribunal on 17.01.2018. Subsequently, another issue regarding the identity of the property was also framed by the Tribunal on 09.04.2019. After completing the preliminary proceedings, the suit was posted for evidence of the parties and accordingly evidence was adduced by both sides and after completing the evidence the suit was posted for final arguments. It is at this point of time, the 1[st] respondent/plaintiff filed an application dated 16.01.2020 for appointing an Advocate Commissioner to inspect the property. Along with the said application, another application seeking to condone the delay in making the O.P.(WAKF) No. 3 of 2020 4 application for the appointment of Advocate Commissioner was also filed. Those petitions along with the supporting affidavits are produced as Exts.P4 and P5 in this original petition. Exts.P4 and P5 petitions were posted on 17.01.2020 before the Tribunal. On that day the petitioner and other contesting defendants prayed for time to file counter/objection to the said applications. It is averred that without granting time as sought for, the Tribunal allowed Exts.P4 and P5 applications as per Exts.P6 and P7 orders dated 17.01.2020. It is challenging Ext P6 and P7 orders that the petitioner has approached this Court. 2. The 1[st] respondent/plaintiff contended that Exts.P6 and P7 orders issued by the Tribunal are perfectly legal and valid. It was only when the case was taken up for evidence on 09.04.2019, it was noticed by the Tribunal that even though the identity of the property is specifically disputed in the written statement, no issue regarding the identity of the plaint schedule property was framed and therefore, the Tribunal framed an additional issue on 09.04.2019. It is in the said circumstance that the 1[st] respondent filed a petition for the appointment of an Advocate Commissioner to identify the property and submit a report along with a plan. The 1[st] respondent further submitted that in view of the specific contention taken by the defendants in the written statement that the property is not identifiable and that an additional issue regarding the O.P.(WAKF) No. 3 of 2020 5 identity of the property was framed by the tribunal only subsequently, they are perfectly justified in making an application for appointment of an Advocate Commissioner, though belatedly. It was also submitted that the Tribunal has taken into consideration the delay in filing the petition and have allowed the petitions only on terms, on payment of cost of Rs.1,000/-. To substantiate the contentions the learned counsel for 1[st] respondent relies on the judgments in **Thenu v. Jose (1988(2) KLT 430), Thampi v. Malathi (2005(4) KLT 575)** and **Babu v. Power Grid Corporation of India Ltd. (2017 (2) KLT SN 61 (C.No.83)).** Based on the above, it is contended that the challenge against Exts.P6 and P7 orders is without any basis. 3. We have considered the rival contentions of the parties. It is evident from a perusal of the documents produced in this original petition that Exts.P4 and P5 petitions are dated 16.01.2020 and the Waqf Tribunal passed orders on those petitions as per Exts.P6 and P7 on 17.1.2020, i.e on the next day of filing the petitions. The fact that the orders are passed on the very next day of filing of the petitions would clearly show that the Tribunal failed to afford an opportunity to the petitioner for filing a counter/objection and thereby denied a fair hearing. Further, the Wakf Tribunal ought to have taken note of the fact that the petition for appointment of an Advocate Commissioner was filed belatedly, that too when the case was posted for final argument and O.P.(WAKF) No. 3 of 2020 6 should have passed orders on the said petition only after affording an opportunity to the petitioner for filing an objection to the said petition. 4. The learned counsel for the 1[st] respondent relied on the judgment in **Thenu v. Jose (1988(2) KLT 430), Thampi v. Malathi (2005(4) KLT 575** to canvas the position that the scope of interference by the court under Article 227 of the Constitution of India is very limited and shall be invoked only in exceptional situations. Though we agree with the above-said proposition, we are of the view that based on the facts and circumstances brought out, it is a fit case to invoke the supervisory jurisdiction conferred on this court under Article 227 of the Constitution. The counsel for the 1[st] respondent also relies on the judgment in **Babu v. Power Grid Corporation of India Ltd. (2017 (2) KLT SN 61 (C.No.83))** to contend that mere delay in taking out a commission alone is not a ground to reject the application for appointing a commission. In the present case, we are considering the question as to whether the Waqf Tribunal was justified in allowing a Commission application even without granting an opportunity to the opposite side for filing an objection to the same and the said judgment relied on by the 1[st] respondent is not applicable in the facts of this case. 5. A similar question came up for consideration before this court in O.P.(WAKF) No. 3 of 2020 7 **Shajul Hameed v. Mohammed Habibullah (1996 KHC 483).** In the said case a petition seeking amendment of the written statement was filed on 13.12.1994 and despite a specific request for adjournment of the case for filing an objection to the said petition, the court below posted the case to the next day for filing objection and hearing and an order was passed without giving an opportunity to file an objection. The challenge against the said order was considered by this Court and the order was set aside and the matter was remitted back for reconsideration after granting an opportunity to file an objection by observing as follows: “It is fundamental to fair procedure that both sides should be heard. The principle of ‘audi alteram partem’ or ‘hear the other side’ is a far reaching principle of natural justice. The hearing to be granted should be a fair hearing. When a reasonable opportunity to file objection is not granted or a reasonable opportunity to contact the client in spite of specific prayer is refused, it cannot be held that there is fair hearing.” 6. In the above circumstances, we are of the view that the Tribunal ought to have granted sufficient time to the petitioner to file his O.P.(WAKF) No. 3 of 2020 8 counter/objection and also granted an opportunity of hearing before passing Exts. P6 and P7 orders. In view of the same, Exts.P6 and P7 orders are liable to be set aside, being passed without granting any such opportunity to the petitioner. Therefore, we allow the original petition by setting aside Exts.P6 and P7 orders passed by the Waqf Tribunal, Kozhikode in I.A. No.119 of 2020 and I.A.No.120 of 2020 in O.S. No.246 of 2019. The petitioner is granted two weeks time from the date of receipt of a certified copy of this judgment to file counter/objection to Exts. P4 and P5 petitions (I.A. No.119 of 2020 and I.A. No.120 of 2020). The Waqf Tribunal is directed to dispose of Exts.P4 and P5 petitions within six weeks thereafter, after affording an opportunity of being heard to all the parties in O.S. No.246 of 2019 including the petitioner and the 1[st] respondent. The Original Petition is disposed of as above. sd/- **S.V.BHATTI Judge** **sd/-** **VIJU ABRAHAM Judge** pm ## O.P.(WAKF) No. 3 of 2020 9 ## **APPENDIX OF OP (WAKF) 3/2020** ## PETITIONER'S EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE PLAINT DATED 14/07/2016 IN O.S.NO.65/2016 (O.S.NO.246/2019). EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT DATED 28/04/2017 FILED BY THE RESPONDENTS NOS.1 TO 4 & 6 IN O.S.NO.65/2016. EXHIBIT P3 THE TRUE COPY OF THE ISSUES FRAMED ON 17/01/2018 IN O.S.NO.65/2016. EXHIBIT P4 THE TRUE COPY OF THE AFFIDAVIT DATED 16/01/2020 FILED IN SUPPORT OF I.A.NO.119/2020. EXHIBIT P5 THE TRUE COPY OF THE AFFIDAVIT DATED 16/01/2020 FILED IN SUPPORT OF I.A.NO.120/2020. EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 17/01/2020 IN I.A.NO.119/2020 IN O.S.NO.246/2019. EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 17/01/2020 IN I.A.NO.120/2020 IN O.S.NO.246/2019. RESPONDENT'S EXHIBITS: NIL