Khadeeja Bai Dharamsthapanam (Khadeeja Bai Trust) & Ors. v. Siddique T.U. & Ors. (and Kerala State Wakf Board)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942** **CRP(WAKF).No.53 OF 2019** **AGAINST THE ORDER IN I.A.No.317/2018 IN WOS 24/2013 DATED 12-12-2018 OF WAKF TRIBUNAL, ERNAKULAM** ## **PETITIONERS:** - **1 KHADEEJA BAI DHARMASTHAPANAM (KHADEEJA BAI TRUST),WAKF REG. NO.3312/RA, ARANGATH ROAD, PULLEPADY, KOCHI-682018, REPRESENTED BY ITS MUTAWALLI.** - **2 COCHIN ORPHANAGE TRUST (YATHEEMKHANA TRUST),ARANGATH ROAD, PULLEPADY, KOCHI-682018, REPRESENTED BY ITS MUTAWALLI.** - **3 KHADEEJA BAI CHARITIES,KHADEEJA BAI TRUST BUILDING, ARANGATH ROAD, PULLEPADY, KOCHI682018, REPRESENTED BY ITS MUTAWALLI.** - **4 MUTAVALLI,KHADEEJA BAI DHARMASTHAPANAM (KHADEEJA BAI TRUST), WAKF REG. NO.3312/RA, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **5 H.E. MOHAMMED BABU SAIT, AGED 61 YEARS, MANAGING TRUSTEE, S/O. HAJI EASSA HAJI ABDUL SATHAR SAIT, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **6 NASSAR LATIF,S/O. LATIF, AGED 55 YEARS, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** C.R.P.(Waqf)No.53/2019 -2- - **7 H.E. AHMED THAHIRSAIT, AGED 61 YEARS, TRUSTEE, ARANGATH ROAD, KHADEEJA BAI TRUST, PULLEPADY, KOCHI-682018.** - **8 VASEEM A. SAIT,AGED 47 YEARS TRUSTEE, ANDULAZEEZSAIT, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **9 SALMAN M BABU SAIT,AGED 35 YEARS TRUSTEE, S/O. BABU SAIT, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **10 AFSHA MOHAMMED BABU, AGED 55 YEARS, TRUSTEE, W/O. MOHAMMED BABU, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **11 HAFSHA SALMAN, AGED 30 YEARS, TRUSTEE, W/O. SALMAN, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **12 RAZEENA FAHEEM, AGED 32 YEARS, TRUSTEE, W/O. FAHEEM, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **13 RIYAS AHMED SAIT, S/O. LATE AHAMED USMAN SAIT, TRUSTEE, KHADEEJA BAI TRUST, ARANGATH ROAD, PULLEPADY, KOCHI-682018.** - **14 THE MANAGER, DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** C.R.P.(Waqf)No.53/2019 -3- - **15 THE PRINCIPAL, DARUL ULOOM HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** - **16 THE PRINCIPAL, DARUL ULOOM HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** - **17 THE HEAD MASTER,DARUL ULOOM HIGH SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** - **BY ADV. SRI.C.DILIP** ## **RESPONDENTS:** - **1 SIDDIQUE T.U., S/O. T.N. UMMER, KARIAKKAT HOUSE, KALOOR, KOCHI-17.** - **2 KERALA STATE WAKF BOARD,REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, KOCHI-17.** - **3 KERARLA WAKF SAMRAKSHANA VEDI (REGD.), DOOR NO.CC 60/62, LISSIE HOSPITAL ROAD, OPPOSITE RANGITH CAFE, KOCHI-682018, REPRESENTED BY ITS SECRETARY.** - **4 T.M. ABDULSALAM, PRESIDENT, KERALA WAKF SAMRAKSHANA VEDI (REGD.), DOOR NO.CC 60/62, LISSIE HOSPITAL ROAD, OPPOSITE RANGITH CAFE, KOCHI-682018.** - **5 NASSIR MANAYIL,GENERAL SECRETARY, KERALA WAKF SAMRAKSHANA VEDI (REGD.), DOOR NO.CC 60/62, LISSIE HOSPITAL ROAD, OPPOSITE RANGITH CAFE, KOCHI-682018.** C.R.P.(Waqf)No.53/2019 -4- - **6 RIBIN K.A.,S/O. K.K. ABDUL RAHIMAN, PHYSICAL EDUCATION TEACHER, DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** - **7 K.B. NIZAM, HIGHER SECONDARY SCHOOL TEACHER (ARABIC), DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** - **8 SADATH T.U.,S/O. LATE T.K. UMMER, LOWER GRADE HINDI TEACHER, DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** - **9 SHAREENA BEEVI A.R., UPSA, DARUL ULOOM VOCATIONAL HIGHER SECONDARY AND HIGHER SECONDARY SCHOOL, VEEKSHANAM ROAD, KOCHI-682018.** **R1 BY ADV. SRI.T.U.ZIYAD** - **R1 BY ADV. SMT.RAMEENA.P.K.** **R2 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD R2 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD R3-9 BY ADV. SRI.SUNIL V.MOHAMMED** **THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 18.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** C.R.P.(Waqf)No.53/2019 -5- ## **O R D E R** ## **T.R.Ravi, J.** Heard Sri C. Dilip, counsel for the revision petitioners and Sri T.K. Saidalikuty, Standing Counsel for the 2[nd] respondent. 2. The petitioners are defendants in a suit initiated by the 1[st] respondent, along with late A.A.Rasheed, before the Waqf Tribunal, Ernakulam. The prayers in the suit are as follows: (a) a decree declaring that the document bearing No.23/1960 of SRO, Ernakulam of 1[st] defendant is null and void; (b) a decree declaring that the properties of 2[nd] respondent Cochin Orphanage Trust (Yatheemkhana Trust) is the properties of 1[st] defendant and direct to deposit its entire income including foreign contributions and donations from its inception in the account of 1[st] defendant and further direct to submit statement of accounts of 2[nd] defendant Cochin Orphanage Trust before 17[th] defendant Waqf Board; (c) a decree declaring that the properties of 3[rd] defendant Khadeeja Bai Charities is the properties of 1[st] C.R.P.(Waqf)No.53/2019 -6- defendant and its entire income including foreign contributions from its inception accounted in the account of 1[st] defendant and direct to submit statement of accounts of 3[rd] defendant Khadeeja Bai Charities before Waqf Board; (d) a decree declaring that the properties of defendants 1 to 3 alienated by the mutawallis or trustees is null and void; (e) a decree of permanent prohibitory injunction restraining the defendants 1 to 16, their men, agents and anyone acting under them from alienating, transferring or assigning or dealing with the properties of 1[st] defendant; and (f) an order appointing a receiver for managing of waqf properties of 1[st] defendant waqf including the institutions Darul Uloom Vocational Higher Secondary School and Higher Secondary School, Salafi Juma Masjid, Pullepady and Darul Uloom Arabic College, Pullepady.” 3. It appears that pending the proceedings, the parties have settled their disputes. The plaintiffs and defendants 1 to 5, 7 to 10 and 14 to 25 filed I.A.No. 317 of 2018 before the Tribunal, praying for a decree in terms of the compromise C.R.P.(Waqf)No.53/2019 -7- entered into between the parties. The Wakf Board opposed the petition on the grounds that the compromise has been entered into without the sanction of the Waqf Board, as required under Section 93 of the Waqf Act, 1995 and that some of the defendants have not joined the compromise petition. The Waqf Tribunal rejected the petition stating that the compromise is not accepted and that for the purpose of accepting the compromise the parties shall obtain sanction from the Waqf Board and comply with sub-rule (4) of Order 1 Rule 8 of the Code of Civil Procedure and obtain the signature of all parties in the suit. The petitioners challenged the order of the Waqf Tribunal on the ground that the Tribunal has failed to exercise its jurisdiction and that the Tribunal ought to have found that Section 93 will not apply since the suit is not related to the title to the Waqf property or deal with the rights of the Mutawalli. 4. A reading of the prayers in the suit as extracted in the order of the Waqf Tribunal, would clearly show that they relate to the title of the properties of the Waqf. There is also a prayer for C.R.P.(Waqf)No.53/2019 -8- declaration relating to properties which are allegedly alienated by the Mutawallis of defendants 1 to 3. As such, the contention of the petitioners that the suit does not relate to title of the Waqf properties is not correct and cannot be accepted. 5. Section 93 of the Waqf Act, 1995 reads thus:- “No suit or proceeding in any court by or against the mutawalli of a Waqf relating to title to Waqf property or the rights of the mutawalli shall be compromised without the sanction of the Board.” 6. In the light of the specific provision which requires the sanction of the Waqf Board for compromising a suit involving questions relating to title of the properties of the Waqf, the order of the Waqf Tribunal can never be faulted. 7. The counsel for the revision petitioners relied on the judgment of a Division Bench of this court in **Kerala State Wakf Board v. Rajesh** , reported in [ **2016 (3) KLT 164]** to contend that the sanction under Section 93 of the Waqf Act, 1995 can also be _ex post facto_ sanction. In **Rajesh (supra)** , the Division Bench was dealing with a case where a compromise decree was C.R.P.(Waqf)No.53/2019 -9- passed by the Tribunal after removing the Wakf Board from the party array. The Division Bench considered Sections 51 and 93 of the Wakf Act, both of which speak about sanction of the Waqf Board. The Division Bench held that since the requirement in Section 51 was “prior” sanction and the word “prior” was conspicuously absent in Section 93, the scope of Section 93 can be understood differently, to take in even _ex post facto_ sanction. However, the Division Bench allowed the revision petition filed by the Waqf Board, set aside the decree passed by the Tribunal and remanded the case to the Tribunal, with directions to commence the proceedings from the stage before which the compromise petition was filed. That is to say, the compromise decree without the sanction of the Waqf Board, was set aside. The above decision will not help the petitioners in any manner, except to the extent that there is a declaration to the effect that the sanction of the Waqf Board can also be _ex post facto_ . We are in complete agreement with the reasoning of the Tribunal that, a suit which has been filed under Order 1 Rule 8 of C.R.P.(Waqf)No.53/2019 -10- the Code of Civil Procedure, can be compromised only after complying with the requirements of sub-rule (4) of Order 1 Rule 8, which requires notice to all interested persons regarding the compromise. The revision petition is hence devoid of any merits and is hence dismissed. The dismissal of the revision petition will not in any way prejudice the petitioners from approaching the Tribunal with a fresh compromise petition, obtaining sanction of the Waqf Board for the compromise and after complying with the requirements of sub-rule (4) of Order 1 Rule 8 of the Code of Civil Procedure. In the circumstances of the case, there will be no order as to costs. Sd/- **K. VINOD CHANDRAN** **JUDGE** Sd/- **T.R. RAVI JUDGE** dsn