K.P. Aboobacker Haji v. M.K. Velayudhan and Kerala State Wakf Board (CRP(WAKF) No. 694 of 2013)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 29TH DAY OF JUNE 2017 / 8TH ASHADHA, 1939** **CRP(WAKF).No. 694 of 2013** **AGAINST THE JUDGMENT IN WOS 5/2011 of WAKF TRIBUNAL, ERNAKULAM DATED 07-08-2013** ## **PETITIONER/PLAINTIFF** **K.P.ABOOBACKER HAJI AGED 57 YEARS, S/O.PAREEKUTTY, MUTHAVALLY, MASJID AL THAQUVA,PARAPPURAM P.O., KANJOOR, ALUVA - 683 593** **BY ADV.SRI.P.CHANDRASEKHAR** ## **RESPONDENTS/DEFENDANTS:** ## **1. M.K.VELAYUDHAN** **S/O. KOCHUKUTTAN, AGED 74 YEARS, NEDUMATTOM HOUSE, PARAPPURAM P.O, KANJOOR, ALUVA - 683 593.** ## **2. KERALA STATE WAKF BOARD,** **REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, OFFICE OF THE KERALA STATE WAKF BOARD, V.I.P ROAD, KALOOR, KOCHI-682 017.** **R1 BY ADV. SRI.K.SHRIHARI RAO R1 BY ADV. SMT.N.SHOBHA** **R2 BY ADV. SRI.K.SHIBILI NAHA** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 29-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** C.R.P.(waqf) No.694 of 2013 **-----------------------------------------------** Dated this the 29[th] day of June, 2017 ## **O R D E R** ## Ravikumar, J. The unsuccessful plaintiff in W.O.S.No.5 of 2011 on the files of the waqf Tribunal, Ernakulam, filed this revision petition challenging the judgment and decree therein. The said suit was filed for a declaration that the plaint schedule property is a waqf property and also that the plaintiff and other local muslim residents, who are the beneficiaries of Masjid-Al-Thaquva, are entitled to offer religious prayers in the building in the plaint schedule property and also to pass a decree for perpetual prohibitory injunction restraining the defendants and others who are the members of his group or gang and residing nearby to the plaint schedule property, from preventing the plaintiff and other C.R.P.(waqf) No.694 of 2013 :-2-: beneficiaries of the said Masjid in any manner from entering into the plaint schedule property and offering religious prayers therein. As per the judgment dated 7.8.2013, the Tribunal had decreed the suit partly and declared that the plaint schedule property is a waqf property. The other reliefs sought by the revision petitioner/plaintiff were dismissed. It is in the said circumstance that this revision petition has been filed. 2. We have heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and also the learned standing counsel for the 2[nd] respondent. 3. As already noticed, the suit was filed under Section 26 read with Order VII Rule 1 of the Code of the Civil Procedure, inter alia for a declaration that the plaint schedule property is a waqf property. In **Rajasthan waqf Board v. Devki Nandan** C.R.P.(waqf) No.694 of 2013 :-3-: **Pathak and ors. (2017(2) KLJ 717)** , the Honourable Apex Court has held that the question whether a property is a waqf property or not could be decided only by the waqf Tribunal and not by a Civil Court. Therefore, it can only be said that for resolution of the aforesaid dispute, the revision petitioner had rightly approached the Tribunal and obviously as per the impugned judgment, the Tribunal had decided the said question in favour of the revision petitioner. In otherwords, it was declared that the plaint schedule property is a waqf property. Despite such a finding by the Tribunal, none of the defendants filed revision petition challenging the said finding of the Tribunal. Thus, it is obvious and admitted that the decision of the Tribunal that the plaint schedule property is a waqf property has become final. In such circumstances, the question to be C.R.P.(waqf) No.694 of 2013 :-4-: decided is whether the Tribunal was justified in declining to grant the further reliefs sought for by the revision petitioner/plaintiff ? 4. For deciding the aforesaid question, a succinct narration of the facts involved in this case is essential. In the plaint it was averred that the plaint schedule property is a waqf property and the plaintiff is the Muthavalli of the said property, which was dedicated for construction of a Mosque in the property to conduct prayers by the Members of the Jama-ath consisting of Muslims of Kizhakku Bhagam village. Earlier, a building intended to be used as Mosque was attempted to be constructed in the said property and that was objected to by the 1[st] respondent and some others. Then the Superintendent of Police, Aluva (Rural) submitted a report before the Sub C.R.P.(waqf) No.694 of 2013 :-5-: Divisional Magistrate, Kochi. On its basis, the Sub Divisional Magistrate convened a meeting of both the groups and passed the order dated 28.6.2001, which was marked as Ext.B1 before the Tribunal, incorporating certain conditions. The terms of the agreement have been extracted in paragraph 10 of the impugned judgment as hereunder:- “ (1) The Madrassa in question must be used only for studying Khuran for students who are below the age of 15. (2) Madrasa can be used only for studying Khuran etc. in the day time and if it extends by any chance it can be only up to 8 p.m. in the night. (3) It was also decided that loud speakers should not be used in the Madrasa and also Mosque or Musjid etc. cannot be constructed therein. (4) It was also decided that the 5 cent property purchased for Madrassa only can be used for the above purpose and adjoining place/vacant otherwise shall not be used for any purpose. (5) It was also decided that temporary shed/building can be constructed only after getting concurrent from Kanjoor Grama Panchayat.” 5. The afore-extracted recital from the judgment, dealing with the agreement dated 28.6.2001 and also the rival C.R.P.(waqf) No.694 of 2013 :-6-: contentions raised before us would reveal the existence of a building in the plaint schedule property and also the fact that it is being used only as a Madrassa. Going by the conditions 1 and 2 therein, Madrassa can be used only for studying Khuran. Condition No.3, extracted above, would also reveal that it was not intended to be used as a Mosque for conducting prayers and in fact, going by the agreement, a Mosque or Masjid could not be constructed therein. The latter limb of condition No.3, viz., the clause “....and also Mosque or Musjid etc. cannot be constructed therein” can only be understood as an inhibition for construction of a Mosque or Masjid in the property concerned. Thus, the terms of the agreement would indicate that the intention is not only to prohibit the use of a building as a Mosque or Masjid but also construction of a Mosque or Masjid thereon. A bare perusal C.R.P.(waqf) No.694 of 2013 :-7-: of the impugned judgment would reveal that in view of Ext.B1 order, the Tribunal had entered into a finding that the revision petitioner/plaintiff could not be granted permission to construct Mosque in the plaint schedule property. The learned counsel appearing for the revision petitioner submitted that the Tribunal, as a matter of fact, mistook the relief sought for inasmuch as no such specific prayer seeking permission to construct a Mosque in the plaint schedule property, was made in the suit. It is submitted that only a declaration that the plaintiff and other local Muslim residents, who are the beneficiaries of the Masjid-Al-Thaquva, are entitled to offer religious prayers in the building in the plaint schedule property and a prayer to issue a perpetual prohibitory injunction restraining the defendants/respondents herein, who are the members of the C.R.P.(waqf) No.694 of 2013 :-8-: other group and residing nearby the plaint schedule property, from preventing the revision petitioner/plaintiff and other beneficiaries of the Masjid to enter into the plaint schedule property and to offer religious prayers therein, were made therein. A bare perusal of the reliefs sought for would undoubtedly go to show that the revision petitioner/plaintiff had not actually sought for any permission to construct a mosque in the plaint schedule property and in fact, what was sought for was only a declaration and a consequential perpetual injunction, as aforesaid. Therefore, the contention that the Tribunal had mistakenly understood the relief sought for, is well merited. But then, the question is whether the Tribunal is having jurisdiction to grant permission to convert or use a building as a Masjid or Mosque, if it was being used for other purpose/purposes. The C.R.P.(waqf) No.694 of 2013 :-9-: fact that the building is in existence in the plaint schedule property is not at all disputed before us and in fact, it is indisputable in view of Ext.B1. Evidently, the building thereon is being used only as a Madrassa. Certainly, there is a difference between a Madrassa and a Masjid or a Mosque. In a Masjid or in a Mosque, prayers are being offered regularly at specific intervals. On the contrary, a Madrassa is only an institution where 'islamic thoughts' are being taught. 6. The plaint schedule property in which the building situates, lies in a Panchayat area. In such circumstance, when a building which is being used only as a Madrassa is intended to be converted as a Mosque or a Masjid, certainly it requires change of occupancy. 'Occupancy of buildings' is dealt with under Rule 34 of the Kerala Panchayat Buildings Rules, 2011 C.R.P.(waqf) No.694 of 2013 :-10-: (for short 'the Rules' only). The nature of the prayer referred above would reveal that in essence, the prayer was for making alteration of the use of the occupancy, after making alteration. There can be no doubt that a room which is being used as Madrassa cannot be used as a Mosque or Masjid without effecting some kind of alteration. The term 'alteration' has been defined under Rule 2 (f) of the Rules, which reads thus : “(f) `alteration' means a structural change, such as an addition to the area or height, or addition of floor/floors or mezzanine floor within any existing floor height, or change of existing floor or change of roof to concrete slab or re-construction of existing walls or construction of concrete beams and columns amounting to structural change, or construction of internal walls for sub-dividing the existing rooms with the intention of changing the use of the room/ rooms which amount to change in the occupancy group of the building under these rules, or closing of any required means of ingress or egress to the building;” A perusal of the definition 'alteration' would reveal that it would take in change of use of a room or a building. Going by Rule 7 of C.R.P.(waqf) No.694 of 2013 :-11-: the Rules, an application is to be submitted for obtaining a building permit. Proviso to sub-rule (8) of Rule 7 mandates that prior approval or clearance or permission and concurrence, as the case may be, of the District Collector concerned should be obtained in terms of the provisions under 'Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005', before considering such application. 7. For a proper and profitable understanding of the provision, it is only apropos to advert to the said proviso which reads thus :- “8) In the case of an application to construct or reconstruct a building or make alteration or addition or extension within any Security Zone, the Secretary shall consult the District Collector concerned before permission is granted. The District Collector, after getting the specific recommendations from the Director General of Police, shall furnish his reply. The objection if any raised and/or restriction and/or regulation if any suggested by the District Collector shall be complied by the Secretary while issuing the permit: C.R.P.(waqf) No.694 of 2013 :-12-: Provided, in the case of construction of new building or reconstruction or alteration or addition or extension of existing building for religious purpose or worship, prior approval or clearance or permission and concurrence as the case may be, of the District Collector concerned shall be obtained and the conditions stipulated in the ‘Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony’ which is in force have to be complied with. Applications for renovation without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship can be considered by the secretary after informing the District Collector in form in **Appendix - N** duly filled by the applicant and verified by the Secretary. The permit shall be issued only after the receipt of the concurrence of the District Collector.” It is thus obvious that in view of the said proviso to sub-rule (8) of Rule 7 of the Rules, when an application is received for alteration which takes in change of use of a building for religious purpose or worship, necessarily that could be considered only on prior approval or clearance or permission and concurrence as required from the District Collector concerned, after following the prescribed procedures. Only after obtaining such approval or clearance or permission and C.R.P.(waqf) No.694 of 2013 :-13-: concurrence that the concerned local self authority could consider the application for 'alteration' or in other words, 'change' in use of the building concerned, for religious purpose or worship. 8. The scope of enquiry under the Manual of Guidelines to “Prevent and Control Communal Disturbances and to Promote Communal Harmony, 2005” issued by the Government of Kerala was considered by a learned Single Judge of this Court in **Fr.Geevarghese, Vallikkattil and anr. v. The District Collector, Idukki and ors. (2014(4) KLT 553)** . The 2005 Manual is an amended version of the original Manual issued as per G.O.(P)No.9/2002/Home dated 16.1.2002. Its objective is to avert threat to communal harmony, likely to result in communal violence. Therefore, the District Collector has to take a decision C.R.P.(waqf) No.694 of 2013 **==> picture [28 x 10] intentionally omitted <==** for granting permission for construction, re-construction or renovation of any religious place, in the light of the guidelines, bearing in mind the aforesaid objectives of the Manual, on being consulted by the Secretary of the Local Self Government Institution concerned. Evidently, the source of power to issue such a manual, regulating the religious freedom, is referable to Articles 25 and 26 of the Constitution of India. In short, in the light of the Manual issued by the Government and also in view of the proviso to sub-rule (8) of Rule 7, it is evident that for consideration of an application for alteration or change in use of the building for religious purpose or worship, it is not only obligatory, but mandatory for the Secretary of the Local Self Government Institution concerned to consult the District Collector concerned and without prior approval or clearance or C.R.P.(waqf) No.694 of 2013 :-15-: permission and concurrence from the latter, in the manner referred hereinbefore, no permit could be issued. In such circumstances, we are of the considered view that the revision petitioner/plaintiff had chosen a wrong forum for the purpose of seeking the reliefs as regards the aforesaid question. The upshot of the discussion is that the Tribunal had gone wrong in declining, rather, entertaining the suit to the extent it pertains, in essence, to 'alteration' or 'change in use' of the building for worship. 9. In the case on hand, as already noticed, the question whether the property is a waqf property or not, has already been decided by the Waqf Tribunal. In the light of **Devki Nandan Pathak** 's case supra, the Waqf Tribunal alone is having the competency to decide that question. We have found that as C.R.P.(waqf) No.694 of 2013 :-16-: regards the other reliefs, the Waqf Tribunal lacks jurisdiction. Therefore, we are of the considered view that despite the rejection of the rest of the reliefs by the Tribunal, the revision petitioner/plaintiff should be left with the liberty to approach the appropriate authority, in accordance with law. Evidently, in case the revision petitioner is desirous to pursue the matter for getting the relief of conversion of the building or change of occupancy, he may move the Local Self Government Institution, in accordance with law. Needless to say that in case of any such move from the part of the revision petitioner, persons having objections will also be at liberty to raise their objections at the appropriate time before that authority. Therefore, the impugned judgment, to the extent it declines to grant the relief and also the injunction, is to be vacated, for the aforesaid purpose. We C.R.P.(waqf) No.694 of 2013 :-17-: do so. Consequently, it is made clear that the revision petitioner/plaintiff will be at liberty to approach the local self government authority concerned for seeking change in occupancy, i.e., change in use of the building situated in the waqf property concerned, if so advised. Needless to say that in view of the proviso to sub-rule (8) of Rule 7 of the Rules, in case of submission of such an application, necessarily that competent authority has to forward the same to the District Collector concerned and can proceed with the consideration of that application only with the prior permission or clearance or permission and concurrence, as the case may be. Subject to the decision of the Local Self Government Authority, if any necessity arises for seeking prohibitory injunction or such other related reliefs pertaining to permitted use of building, they will be at C.R.P.(waqf) No.694 of 2013 :-18-: liberty to approach appropriate forum. Subject to the above, this revision petition is disposed of. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/1.7.17 //True copy// P.A.to Judge