K.K. Abdulla and Others vs Kerala State Wakf Board and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`WEDNESDAY, THE 7[TH] DAY OF JUNE 2023 / 17TH JYAISHTA, 1945`** ## **`WP(C) NO. 5211 OF 2010`** ## **`PETITIONERS:`** - `1 K.K.ABDULLA AGED 58 YEARS, S/O AMMU KATTAKATH HOUSE, KOTHAPARAMBU.PO,KODUNGALLOOR.` - `2 K.M.SHAJI, S/O.KAKKUNNIL MOHAMMED KOTHAPARAMBU.P.O,KODUNGALLOOR.` - `3 P.B.MOHAMMED SAGEER, S/O.BEERU PONAKUZHY VEEDU,KOTHAPARAMBU.PO,KODUNGALLOOR.` ``` BY ADV SRI.T.M.ABDUL LATHEEF ``` ## **`RESPONDENTS:`** - `1 KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,ERNAKULAM, KALOOR, COCHIN-682 017.` - `2 THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, ERNAKULAM,KALOOR,COCHIN-682 017.` - `3 ALA-PANANGAD SAHIBINTE PALLI MAHALLU COMMITTEE,REPRESENTED BY ITS PRESIDENT, IBRAHIMKUTTY HAJEE,SANTHIPURAM.P.O, KODUNGALLOOR-680 668.` - `4 THE DISTRICT COLLECTOR, THRISSUR.` _**W.P(C).5211/2010**_ 2 ``` 5STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, WAKF ADMINISTRATION,THIRUVANANTHAPURAM. ``` ``` ADDL R6RUKHIYA ALIAS UMBI, ``` ``` W/O.KUNJUMOIDEEN, THARUPEEDIKAYIL, SOUTH OF SAHIBINTE' PALLI, P.O, SANTHIPURAM, KODUNGALLOOR-680 668 ``` ``` ADDL R7KHADEEJA, W/O.LATE KHADERKUTTY MUALIYAR, KARUPPAM VEETTIL, SOUTH OF SAHIBINTE' PALLI, P.O, SANTHIPURAM, KODUNGALLOOR-680 668 ``` ``` ADDL R8AYSHABI, ``` ``` W/O. LATE PANAI MUHAMMED, KARUPPAM VEETTIL, SOUTH OF SAHIBINTE' PALLI, P.O, SANTHIPURAM, KODUNGALLOOR-680 668 ``` ``` ADDL R9 HAZEENA, W/O.HUSSAIN, KARUPPAM VEETTIL, SOUTH OF SAHIBINTE' PALLI, P.O, SANTHIPURAM, KODUNGALLOOR-680 668 ``` ``` ADDL R10BARKKATH, W/O.RASHEED, KARUPPAM VEETTIL, SOUTH OF SAHIBINTE' PALLI, P.O, SANTHIPURAM, KODUNGALLOOR-680 668 . ``` ``` [ADDL R6 TO ADDL R10 ARE IMPLEADED AS PER ORDER DATED 04-11-2016 IN IA 15271/2013.] ``` ``` BY ADVS. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD GOVERNMENT PLEADER SRI.A.A.ABUL HASSAN, SC, WAKF BOARD SRI.M.M.SAIDU MUHAMMED, SC,WAKF BOARD SRI. JAMSHEED HAFIZ ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.P(C).5211/2010**_ 3 ## J U D G M E N T Dated this the 7[th] day of June, 2023 Petitioners are alleged to be beneficiaries of Ala Panangad Sahibinte’ Palli, an ancient mosque situated in Sreenarayanapuram Village, Kodungalloor, administered and managed by Mahal Committee. 2. Respondent No.3 Ala-Panangad Sahibinte’ Palli Mahallu Committee, in the year 1999 alleged to have submitted a petition before the Kerala State Wakf Board-respondent No.1 and 2 to conduct an enquiry and initiate action for recovering the Wakf properties, which were lost due to mal-administration. It was also pointed out that few properties were illegally transferred, without obtaining sanction from the Wakf Board and the transfer was settled in favour of one School. The Board alleged to have passed proceedings, Exhibit P2, dated 16.2.2001 to conduct an enquiry in the matter, but no action was taken. 3. Another complaint was addressed to respondent No.4 in respect of the property measuring 23 cents of land in Sy. No.164/3, 1 Acre 20 cents of land in Sy. No.164/9 and 75 cents of land in Sy. No.166/2, total 2 Acres 18 cents of land in Sreenarayanapuram Village, _**W.P(C).5211/2010**_ 4 alleged to be in illegal possession and enjoyment of Director of Public Instructions, Thiruvananthapuram, obtained through a sale deed bearing No.1342/80 registered in SRO Mathilakom. 4. Provisions of Section 51 of the Wakf Act, 1995 was also referred to, providing the sale to be void except for gift, unless such gift, sale or exchange was effected with prior sanction of the Wakf Board. 5. Mr. Abdul Latheef, learned counsel appearing on behalf of the petitioners submitted that petitioners have been interested in protecting the property of Wakf Board, where as the Wakf Board has not taken any steps either under the 1995 Act or under the 2013 Act whereby 1995 Act had undergone various amendments. It is in this circumstances, present writ petition has been filed with the following reliefs: - “(i) To call for the records relating to Exts.P-1 to P-10 and to issue a writ of mandamus commanding the 4[th] Respondent to initiate action to recover the wakf properties by complying with the legal formalities contemplated under Section 95 of the Wakf Act, in respect of the properties of Ala Panangad Sahibinte' Palli; - (ii) To issue a writ of mandamus commanding the 4[th] Respondent to submit report about the action taken by the said office based upon Ext.P-2 and further request _**W.P(C).5211/2010**_ 5 made by the Board: - (ii) To issue a writ of mandamus commanding the Respondents 1 and 2 to conduct enquiry regarding the properties other than the properties stated in Ext.P-5, which were stated in Ext.P-1 and other complaints and to initiate action to remove the encroachment under Section 55 and 95 (C) of the Wakf Act and also to recover the properties and join the same with the Ala Panangad Sahibinte Palli; - (iv) to issue a writ of mandamus commanding the 5[th] Respondent to conduct enquiry as to the failure on the part of Respondents 1 and 2 in not initiating appropriate action against the Respondents I and 2 for not protecting the wakf properties by proceeding under law and recovering the properties since there is severe favouritism and undue interest shown in favour of the encroachers and as there was no action taken either under Section 55 or under section 95 and 95(C) of the Wakf Act;” 6. It was also pointed out that this Court had even directed the - 4[th] respondent to file an affidavit about the action taken based on the request of the Wakf Board, which is narrated in the statement filed by the Wakf Board. 7. Wakf Board in response to the notice of this writ petition filed a counter affidavit and alleged that the land referred in Exhibit _**W.P(C).5211/2010**_ 6 P3, allegedly in possession of Director of Public Instructor, was alienated by them and Board in its meeting held on 9.7.2002 decided to re-possess the property. In this regard a letter was sent to District Collector and when no action was taken, a reminder was sent to Additional Chef Secretary, Revenue (Finance) Department. The District Collector submitted a report dated 13.6.2007 to the Principal Secretary and it surfaced that the transfer was effected taking into consideration the public interest of Mahal members. Writ petition No.27431 of 2005 was filed, which was dismissed by this Court. It is the duty of the 4[th] respondent – District Collector to take steps. 8. 4[th] respondent – District Collector has filed a counter affidavit dated 2.3.2013 and in paragraph 2 it is averred that, the property measuring 2 Acres and 18 cents of land in Sy No.164/3, 164/9 and 166/2 of Panangad Village was transferred in favour of the Director of Public Instructor by a Registered sale deed No.1342 dated 11.7.1980, by the then President of 3[rd] respondent Mahallu Committee, without prior sanction from the Wakf Board and therefore, cannot be said to be void by virtue of the provisions of erstwhile 1995 Wakf Act or 2013 Act. The transfer was done consequent to the meeting convened on 21.6.1980 by the beneficial inhabitants of the area of Mahal Committee, for the purpose of upgrading an upper primary school as _**W.P(C).5211/2010**_ 7 High School. Transfer was before commencement of new Act of 1995. 9. During the pendency of the writ petition, an additional affidavit was also filed by 4[th] respondent, wherein it was stated that besides the land transferred in favor of DPI, land to the extent of 23[1] /2 cents, comprised in Sy. No.164/3B had been in use for the functioning of the Government Mappila U.P. School for more than 60 years. Before transferring the same as school land, it was recorded as Revenue Puramboke in the village records and was leased out to Mosque Mahallu Authorities. So the possession of the said land had been vested with the Government even before establishment of the school being originally a Government land. 10. The area of land measuring 1 Acre 20 cents in Sy. No.164/9 was under the possession of Mahallu as per village Thandaper. It was changed to a road to Sahib’s Mosque and to the High School, extended from the western side of Canoli Canal ie., from Pallinada to Anchangadi Centre. 11. 75 cents of land comprised in Sy. No.166/2 of Panangad Village was under Mosque Thandaper, which was being used as a playground of the school. The amendment came into force in 1995 but all the transactions had taken place in the year 1980, i.e., before the Act and therefore, the provision of 1995 Act would not be _**W.P(C).5211/2010**_ 8 applicable. 12. As regards land measuring 4 Acre 40 cents vested with Ayiroor kovilakam, it was dedicated to the mosque for the maintenance and upkeep of the Mosque in ancient times. Government had not made any encroachment. 13. District Collector had taken appropriate steps on account of the communication received from the Wakf Authorities and surveyed the area by issuing direction to the Village Officer, Panangad to report about the persons who are in possession of properties mentioned in representations, Exhibit P4 and P5. As per the report dated 12.7.2016, it was found that about 37 persons are in possession of the property mentioned in Exhibit P4 and P5, details of which are given in Exhibit R4(a). 14. I have heard learned counsel for the parties and appraised the paper book. 15. The Wakf Act came into force in 1995 and Sections 53, 54 and 55 of the said Act empowered the Chief Secretary to take appropriate steps by moving an application before the Tribunal for removal of encroachments or illegal possession, execution is provided under Section 55 of the Act. As far as transfer of lands referred to above in the additional counter affidavit of District Collector, _**W.P(C).5211/2010**_ 9 regarding 23[1] /2 cents in Sy.No.164/3B, 1 Acre 20 cents in Sy. No.164/9, 75 cents in Sy. No.166/2 and 4 Acre and 40 cents, parcels are in possession of respective authorities referred to therein and being used for public cause, _prima facie_ cannot be said to be void _ab initio_ as a valuable right has accrued in favour of parties in possession, while taking into consideration the provisions of Section 27 of the Limitation Act and the provisions of Article 64 and 65 of the Limitation Act. The aforesaid provisions have already been pondered by the Supreme Court in **Ravinder Kaur Grewal vs Manjit Kaur** [AIR 2019 SC 3827, whereby the plea of adverse possession has been termed as a sword also. 16. In other words, as per the aforementioned judgment, suit for declaration claiming ownership of property by way of prescription is also permissible. Thus, this Court would not be in a position to delve upon the nature of possession viz., rights allegedly created in favour of the parties. 17. As regards the list Exhibit R4(a) annexed to the additional counter affidavit dated 20.12.2021, about 37 persons are found to be in illegal possession of the property. For the sake of brevity, contents of paragraph 9 of the additional counter affidavit reads as under: “9. The District Collector has taken steps to collect the _**W.P(C).5211/2010**_ 10 details of persons who are in possession of the properties in Exhibit P4 & P5. A true copy of the list of possession of the properties in Exhibit P4 & P5 mentioned in the Schedule of this WP(C).No.5211/2010 is produced herewith and marked as Exhibit R4(a).” 18. The _bona fides_ of the petitioners has not been established by way of any documents. Considering the fact that they have attempted to espouse a public cause in protecting the interest of the properties belonging to Wakf Board, the Board was required to take action in accordance with the provisions of 1995 Act and 2013 Act by approaching the Tribunal for taking possession of the land from persons, who are in illegal possession and encroachment and thereafter seek execution under the provisions of Sections 54 and 55 of the Act. Sections 54 and 55 of the Wakf Act reads as under: “54. Removal of encroachment from wakf property.— (1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove _**W.P(C).5211/2010**_ 11 the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli. (2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed. (3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may make an application to the Tribunal for grant of order of eviction for removing) such encroachment and deliver possession of the land, building space or other property encroached upon to the mutawalli of the Wakf. (4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the wakf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the wakf property: PROVIDED that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer. (5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by _**W.P(C).5211/2010**_ 12 him in this behalf may evict that person from and take possession of the Wakf property. ## “ **55** . **Enforcement of orders made under section 54** .— Where the person, ordered under sub-section (4) of section 54 to remove any encroachment, omits or fails to remove such encroachment, within the time specified in the order or, as the case may be, fails to vacate the land, building, space or other property to which the order relates, within the time aforesaid, the Chief Executive Officer may refer the order of the Tribunal to the Executive Magistrate within the local limits of whose jurisdiction the land, building, space or other property is situate for evicting the encroacher, and, thereupon, such Magistrate shall make an order directing the encroacher to remove the encroachment, or, as the case may be, vacate the land, building, space or other property and to deliver possession thereof to the concerned mutawalli and in default of compliance with the order, remove the encroachment or, as the case may be, evict the encroacher from the land, building, space or other property and may, for the purpose, take such police assistance as may be necessary.” Writ petition is disposed of in terms of the observations. This court is sanguine of the fact that the Chief Executive Officer of Wakf Board, on the basis of survey already conducted at the behest of the _**W.P(C).5211/2010**_ 13 District Collector by seeking a report from the Village Officer dated 12.7.2016, will take appropriate steps for removal of encroachment, in accordance with law, as expeditiously as possible. **Sd/-** AMIT RAWAL, Judge. sou. _**W.P(C).5211/2010**_ 14 ## **`A PPENDIX OF WP(c) No.5211/2010`** ## `PETITIONER EXHIBITS` ``` EXHIBIT -P1TRUE COPY OF THE PETITION DATED 1.6.1999 ``` ``` EXHIBIT -P2TRUE COPY OF THE ORDER DATED 16.2.2001 ``` ``` EXHIBIT -P3TRUE COPY OF THE LETTER NO.A4-2942/RA DATED 19.9.2002 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT ``` ``` EXHIBIT -P4TRUE COPY OF THE LETTER NO.A6-2942/RA DATED 20.9.2004 ISSUED BY SREENARAYANAPURAM GRAMA PANCHAYAT TO THE 2ND RESPONDENT ``` ``` EXHIBIT -P5TRUE COPY OF THE LETTER NO.A3-192/2004 DATED 13.8.2004 ISSUED BY THE 2ND RESPONDENT TO SREENARAYANAPURAM GRAMA PANCHAYAT ``` - `EXHIBIT -P6 TRUE COPY OF THE PETITION DATED 16.5.2007 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT` - `EXHIBIT -P7 TRUE COPY OF THE PETITION DATED 29.8.2005 SUBMITTED BY THE PETITIONERS BEFORE THE HON’BLE CHIEF MINISTER OF KERALA AND 5TH RESPONDENT` ``` EXHIBIT -P8TRUE COPY OF PATTA DATED 28.11.1983 ISSUED BY THE LAND TRIBUNAL ``` ``` EXHIBIT -P9TRUE COPY OF THE LETTER NO.A3-2639/03-02 DATED 7.3.2003 OF THE TAHSILDAR, KODUNGALLUR ``` ``` EXHIBIT -P10TRUE COPY OF THE LETTER NO.A3-2942/RA DATED 17.3.2005 OF THE 2ND RESPONDENT ``` _**W.P(C).5211/2010**_ 15 ## `RESPONDENTS’ EXHIBITS` `EXHIBIT R4(a)` TRUE COPY OF THE DOCUMENT NO.1342/80 DATED 11.7.1980 `EXHIBIT R4(a)` TRUE COPY OF POSSESSION OF THE PROPERTIES IN EXHIBIT P4 & P5 MENTIONED IN THE SCHEDULE OF THIS WP(C).NO.5211/2010