K.M. Ibrahim and S. Noorudheen v. Chief Executive Officer, Kerala State Wakf Board, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS.JUSTICE K.HEMA &** **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934** **CRP.No. 39 of 2011 ( ) -----------------------** **AGAINST THE ORDER/JUDGMENT IN IA.724/2008 IN OP.0/2008 of WAKF TRIBUNAL, KOZHIKODE DATED 05-10-2010** ## **REVISION PETITIONER(S)/PETITIONERS/APPELLANTS:** **----------------------------------------------** **1. K.M.IBRAHIM, S/O.K.A.ABDUL RAHIMAN, AGED 62 YEARS, RESIDING AT 'JAFFER MANZIL' MUZHATHADAM, KANNUR-2.** **2. S.NOORUDHEEN, AGED 50 YEARS, S/O.S.MOIDEEN, "NADEENAS" HOUSE, CIVIL STATION SOUTH BAZAR, MOOTTAMMAL ROAD, KANNUR.** **BY ADVS.SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF SMT.K.S.KARUNAMOL** **RESPONDENT(S)/RESPONDENTS:** **---------------------------** **1. THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, V.I.P.ROAD, ERNAKULAM.** **2. S.H.HUSSAIN, S/O.SAYYED MUHAMMED HUSSAIN MAKKANI COMPOUND, KANNUR.** **3. YOOSUF HUSSAIN @ HASHIM, S/O.SAYYED MUHAMMED HUSSAIN, SOUTH BAZAAR, KANNUR MAKKANI COMPOUND.** **4. KUTIKALAKATH ABDURAHIMAN KUTTY, S/O.BATTAKKA SAVANKUTTY, SOUTH BAZAAR, KANNUR.** **5. KOLOTH NISAR, S/O.VASHAYIL ABDUL RAHIMAN SOUTH BAZAR, KANNUR.** **6. P.GAFOOR HAJI, S/O.ABDUL KHALID, AGED 56 YEARS, HISHAM STORES, THEKKI BAZZAR (ALL ARE CIVIL STATION, P.O.KANNUR AMSOM DESOM SOUTH BAZAR, KANNUR DISTRICT)** **R4 & 6 BY ADV. SRI.A.MOHAMED MUSTAQUE R4 &6 BY ADV. SRI.K.R.AVINASH (KUNNATH) R1 BY ADV. SRI.A.A.ABUL HASSAN, SC, WAKF BOARD R2 & R3 BY ADV. SMT.LATHA PRABHAKARAN R2 & R3 BY ADV. SRI.K.M.JAMALUDHEEN** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HEMA & P.S. GOPINATHAN, JJ.** ...................................................... C.R.P.NO.39 OF 2011 ...................................................... Dated this the 7[th] day of November, 2012 ## **O R D E R** ## **Hema, J.** This revision arises from an order of dismissal of an application for condonation of delay, under Section 95 of the Wakf Act. There was a delay of 12 years and 209 days in filing the appeal. A counter statement was filed by the contesting respondents and evidence was also adduced and after consideration of the same, the Wakf Tribunal dismissed the petition. 2. As per the averments in the petition filed by the appellants before the Wakf Tribunal, the delay is not willful or deliberate. It happened because the appellants bonafide believed that the order is impugned in the appeal filed before the Tribunal was not binding on the revision petitioners, since they were not parties to the proceedings before the Wakf Board and no separate order was passed by the Wakf Board to remove the petitioners from the post of Muthavalliship. It is also averred in the petition that the petitioners got legal advice that : 2: ## C.R.P.NO.39 OF 2011 the order dated 7.11.1995 of the Wakf Board is to be challenged before the Tribunal. The 6[th] respondent in the appeal had taken up a contention that petitioners did not challenge the impugned order of the Board before the Tribunal. It is for such reasons that there was delay of 12 years and 209 days in filing the appeal against the order of the Wakf Tribunal. 3. The 1[st] respondent Wakf Board filed a counter statement and contended that the petitioner accepted the order of the Wakf Tribunal and submitted objection before the Board against certain clauses shown in the draft scheme. Having accepted the order, he cannot discard the same. A counter statement was filed by 4[th] and 6[th] respondents also, contending that there is no sufficient cause for the delay and there is no reason for condoning the delay. 4. Evidence was adduced. AW1 was examined. Exts.A1 and A2 were marked on the side of the petitioners. No evidence was adduced on the side of the respondents. After hearing both sides and on going through the evidence, learned Tribunal found that, it has come out in evidence that, as per the impugned order passed by the Wakf Tribunal, the scheme was settled, general body election was conducted and administration : 3: ## C.R.P.NO.39 OF 2011 of Wakf was handed over to the general body through intervention of the court. 5. The Tribunal also found that it is unbelievable that the petitioners were unaware of all these proceedings initiated before the judicial authorities and they came to know about the proceedings only later. The general statement that they were unaware of all the proceedings for 12 years and 209 days cannot be recorded as a sufficient cause stated in Section 95 of the Wakf Act, it is further held. The petition was dismissed and hence, this revision petition. 6. Heard learned counsel for the petitioners and contesting respondents. Admittedly there is a delay of 12 years and 209 days in preferring an appeal challenging the order of the Wakf Board dated 7.11.1995. As per the impugned order, the Wakf Board found that a scheme was to be framed for the proper administration of the Wakf. The parties were directed to submit draft schemes with notice to opposite sides within one month from the receipt of the order. It was also ordered that after consideration of the objection of the respective parties, the Wakf Board finalised the scheme. Admittedly, the scheme was finalised after about 6 years of passing of the order in : 4: ## C.R.P.NO.39 OF 2011 2002. 7. Learned counsel for the 1[st] respondent pointed out that there is long proceeding in finalising the scheme. It is undisputed that objection will be called for and draft scheme will be published in the office of the Wakf Board and also office of the Wakf. Thereafter it will be published in the Gazette, after finalising the scheme. It is after a long drawn procedure that the scheme is finalised and it has taken about six years to finalise the same. Petitioners were aware of all these. It is stated in the counter statement itself that the petitioners had raised objection to certain clauses in the draft scheme before the Wakf Board. 8. It is pointed out that the 2[nd] petitioner had taken part in the general body meeting in which the scheme was framed. The 2[nd] petitioner was examined as PW1 and he has admitted in the cross examination that a committee was formed and office bearers were elected, in accordance with the scheme framed by the Wakf Board. He also admitted that on 16.2.2003 there was a general body meeting which was held in accordance with the scheme and he had participated in the same. Therefore, in the light of the admissions made by the 2[nd] : 5: ## C.R.P.NO.39 OF 2011 petitioner, he had active participation in the proceedings and he was aware of the scheme. 9. On hearing both sides and on perusal of the affidavit filed along with the petition for condonation of delay, it can be seen that the petitioner did not state whether any cause prevented him from filing the appeal. As per Section 95 the Wakf Act, if the Tribunal is satisfied that appellant was 'prevented' by sufficient cause from preferring the appeal within the period specified, it can entertain the appeal after the expiry of the said period. The expression used in Section 95 is 'prevented'. Unlike Section 5 of the Limitation Act, the satisfaction to be arrived at by the Tribunal, to extent the period and admit the appeal or the application as the case may be is that the appellant was prevented by sufficient cause from preferring the appeal. 10. The word 'prevent' has a definite meaning. 'Prevent' as per dictionary means, “to stop somebody from doing something or to stop something from happening”. So, it is not a mere failure to file an appeal within a particular time which is relevant under Section 95. The appellant must satisfy the court that he was stopped by sufficient cause from preferring the : 6: ## C.R.P.NO.39 OF 2011 appeal. In this case, the affidavit does not reveal that any cause had stopped him from preferring the appeal. He has no case that he was prevented from preferring the appeal within the prescribed period. But, it is only stated that he got legal advice that the order dated 7.11.1995 is to be challenged. 11. It is not stated in the affidavit when exactly he got legal advice or whether absence of legal advice prevented him from filing the appeal. It can also be seen that as per the averments in the affidavit, petitioners believed that the order was not binding on them since they were not parties in the proceedings before the Wakf Board. When exactly they came to know about the passing of the order etc are conspicuously missing in the affidavit. In short, absolutely nothing is stated by the petitioners in the affidavit that they were prevented by sufficient cause from preferring the appeal within the time specified. In such circumstances, the appeal cannot be entertained and learned Tribunal rightly dismissed petition for condonation of delay. 12. Learned counsel for the petitioners submitted that in the light of the dictum laid down in the decision reported in **Ramachandran Potti v. Thankam** (2004 (3) KLT 183), it is : 7: ## C.R.P.NO.39 OF 2011 sufficient, if the party only prima facie establishes that he has sufficient cause. It was a case where the court was considering whether leave can be granted for filing an appeal. On going through the decision, we find that it has no application to the facts of this case. 13. Learned counsel for the petitioners also relied upon the decision reported in **N. Balakrishnan v. M. Krishnamurthy** (1998 (7) SCC 123) to argue that it is not length of the delay which matters, but it is the explanation given by the party which is to be looked into. We have already considered what exactly is the crucial averment to be made by the party in a petition under Section 95 for satisfying the court to condone delay in filing appeal. In the decisions cited above, what was considered is the scope of Section 5 of Limitation Act and not the particular expression referred to in Section 95 of the Wakf Act. 14. We have already considered the averments made in the affidavit and found that neither in the pleadings nor in the evidence the petitioners have a case that they were prevented by sufficient cause from not filing the appeal within time and, hence, even if the principles laid down in the decisions : 8: ## C.R.P.NO.39 OF 2011 cited above are accepted, there is no reason to allow the petition. Learned counsel for the petitioners submitted that the appeal may be allowed on terms. 15. On considering the facts and circumstances of the case, we are not persuaded to allow the petition even on terms, since the pleadings and evidence are totally bereft of the details for entertaining the appeal after a long period of 12 years and 209 days of the specified period for filing the appeal. This revision petition is dismissed. Sd/- ## **K. HEMA, JUDGE.** **Sd/-** ## **P.S. GOPINATHAN, JUDGE.** cl /true copy/ P.S. to Judge : 9: C.R.P.NO.39 OF 2011 : 10: C.R.P.NO.39 OF 2011