K.T. Beeran Kutty and M.C. Ismalkutty v Kerala State Wakf Board and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938 CRP.No. 104 of 2012 () ----------------------- AGAINST THE ORDER/JUDGMENT IN OA 9/2011 of WAKF TRIBUNAL, KOZHIKODE DATED 20-01-2012 PETITIONERS/PETITIONERS: ---------------------- 1. K.T.BEERAN KUTTY, AGED 56 YEARS, S/O.MOHAMMED HAJI, MANNATHANATH HOUSE, CHEEKODE AMSOM, VAVOOR DESOM, CHEEKODE P.O., PIN-673 654, MALAPPURAM DISTRICT. 2. M.C.ISMALKUTTY AGED 56 YEARS, S/O.MOIDEEN, MANGATICHALIL HOUSE, CHEEKODE AMSOM, VAVOOR DESOM, CHEEKODE. BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENTS/RESPONDENTS: ----------------------- 1. KERALA STATE WAKF BOARD REPRESENTED BY ITS SECRETARY, PARAMARA ROAD, ERNAKULAM, COCHIN-18. 2. THE CHIEF EXECUTIVE OFFICER KERALA STATE WAKF BOARD, PARAMARA ROAD, ENRAKULAM, COCHIN-18. 3. MATTATHOOR V.MUHAMMED MUSALIAR AGE NOT KNOWN, VAVOOR P.O., CHEEKODE, MALAPPURAM, PIN-673 645. 4. K.M.MUHAMMED KUTTY HAJI AGE NOT KNOWN, MANATHANATH HOUSE, VAVOOR P.O., CHEEKODE, MALAPPURAM, PIN-673 645. 5. K.K.ASHRAF AGE NOT KNOWN, S/O.MUHAMMED, VAVOOR P.O., CHEEKKODE, PIN-673 645. 6. A.K.MAMMU MUSALIAR S/O.MUHAMMED HAJI, ALUNGAPARAMBIL HOUSE, CHEEKODE AMSOM, VAVOOR DESOM, MALAPPURAM, PIN-673 645. R1 BY ADV. SRI.K.M.FIROZ ,CAVEATOR R4-R6 BY ADV. SRI.K.M.FIROZ R4-R6 BY ADV. SMT.M.SHAJNA R BY SRI.K.M.FIROZ R BY SRI.A.A.ABUL HASSAN, SC, WAKF BOARD THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ------------------------------------------CRP No. 104 of 2012** ## **-----------------------------------------Dated this the I[st] day of June, 2016.** ## **JUDGMENT** Dama Seshadri Naidu,J. The Petitioners, the General Secretary of the Vavoor JumaAt Palli Paripalana Committee and one of its members, are aggrieved by the judgment dated 20[th] January 2012 in O.A.No. 9 of 2011. They have, accordingly, filed the present revision petition. 2. The facts, briefly stated, are that the Wakf, a hundredyear one, had its building in a dilapidated condition. To renovate it, the Committee, apart from collecting donations, sold two teak trees and said to have used the proceeds for renovation. 3. At that juncture, the respondents 4 to 6, the members of the Mahalloo, complained to the Wakf Board about cutting the trees without prior permission and about the alleged misappropriation of the proceeds thereof. In that context, after hearing the parties concerned, the Wakf Board passed two orders CRP No. 104/2012 : 2 : dated 24.11.2007 and 14.10.2009 interdicting the Committee from cutting any more trees, apart from directing it to deposit the sale proceeds of the trees felled and sold earlier. As seen from the subsequent developments, the Committee has, instead, provided a bank guarantee, in compliance with the direction given by the Wakf Board. 4. At any rate, assailing the orders to the Wakf Board, the petitioners filed O.A. No. 9 of 2011 before the Wakf Tribunal, Kozhikode, which, through the impugned judgment dated 20.1.2012, dismissed the O.A. It held that the trees, treated as immovable property, were cut and removed by the Committee without the Board’s prior permission. Further aggrieved, the petitioners have approached this Court. 5. The learned counsel for the petitioners has strenuously contended that the felling of the trees and removal of timber took place before 2013, only when was Section 51 of the Wakf Act amended and Section 104(a) inserted. According to him, the unamended provision never interdicted the power of the Committee to deal with the Wakf’s movable property. CRP No. 104/2012 : 3 : 6. In elaboration, the learned counsel has submitted that the trees removed were over hundred years old and that they were nothing but standing timber, which stands excluded from the definition of immovable property. To support his submissions, the learned counsel has drawn our attention to the definitional provisions of the General Clauses Act, the Transfer of Property Act, and the Registration Act. 7. The learned counsel has further placed reliance on the judgments of the Hon’ble Supreme Court in **Smt. Shantabai** v **State of Bombay and others**[1] and also in **Triveni Engineering Industries Ltd. and another** v C **ommissioner of Central Excise and another**[2] **.** 8. Summing up his submissions, the learned counsel has submitted that the Wakf Act has not defined the immovable property. According to him, the lexical provisions of various statues concerning immovable property have already been considered in the judgment of the Supreme Court referred to above. In sum and substance, the learned counsel would contend that the felling of the trees, by any reckoning, would not amount > 1 AIR 1958 SC 532 > 2 (2000) 7 SCC 29 CRP No. 104/2012 : 4 : to any violation of the statutory mandate in the Wakf Act. And once the trees were treated as immovable property, at least until the Act underwent an amendment, the act on the Committee’s part could not be faulted. 9. Per contra, the learned counsel for the respondents 4 to 6 has submitted that, based on the complaint lodged by the respondents 4 to 6, there was initially an enquiry. The findings of the enquiry were that the felling of the trees, in the first place, was illegal and that the proceeds were misappropriated. 10. The learned counsel has further submitted that the definition in the Transfer of Property Act is meant for the purposes envisaged by the very Act. On the other hand, if one were to rely, he further avers, on the definition under the General Clauses Act, it is only inclusive without spelling out any exclusion as regards the standing timber. According to him, comprehensively viewed, the Committee acts only as a trustee, and it is essential for the Committee to seek the permission of the Wakf Board before it intermeddles with the property in any manner. He, thus, urges that the judgment impugned cannot be interdicted. CRP No. 104/2012 : 5 : 11. The learned counsel, too, has relied on the judgment of the Supreme Court in Shantabai (supra), relied on by the learned counsel for the petitioners. He has drawn our attention specifically to paragraphs 28 and 33 of the judgment. 12. Heard Sri Elvin Peter P.J., the learned counsel for the petitioners, Sri. A.A.Abul Hassan, the learned Standing Counsel appearing for the Wakf Board, and Sri K. M. Firoz, the learned counsel appearing for respondents, apart from perusing the record. 13. Indeed, the issue lies in a very narrow compass. Perhaps, realising the statutory lacuna, the legislature amended Section 51, apart from inserting Section 104(a), in 2013. Till then, the governing position was that the wakf’s immovable property should not be dissipated by any means, such as a sale. In the present instance, as has been contended by the learned counsel for the petitioners, the Wakf Act is silent about what is meant by ‘immovable property’. Analogously interpreting, we may as well refer to the General Clauses Act, in which Section 3(26) of Act defines the immovable property as follows: CRP No. 104/2012 : 6 : “Immovable property’’ shall include land, benefits to arise out of land, and things attached to the earth, of permanently fastened to anything attached to the earth.” 14. We may, incidentally, refer to the interpretation clauses of the Transfer of Property Act and also the Registration Act, to explore the semantic significance of the expression ‘immovable property. As per Section 3 of the Transfer of Property Act, “immovable property” does not include standing timber, growing crops, or grass, unless something is repugnant in the subject or context. The definition, therefore, is exclusionary. Section 2 (6) of the Registration Act, too, though more explicit, defines the term inclusively. Immovable property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of the land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass. It is clear from the definition provided in the Registration Act that standing timber, growing crops, and grass do not answer the description of immovable property. 15. Shantabai (supra), after acknowledging that absent a CRP No. 104/2012 : 7 : special definition, that given in the General Clauses Act must prevail, proceeds to distinguish between standing timber and a tree. It holds, among other things, thus: “25. [I]t is clear that there must be a distinction because the Transfer of Property Act draws one in the definitions of "immovable property" and "attached to the earth"; and it seems to me that the distinction must lie in the difference between a tree and timber. It is to be noted that the exclusion is only of "standing timber" and not of "timber trees". 26. Timber is well enough known to be - "wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned." (Webster's Collegiate Dictionary). 27. Therefore, "standing timber" must be a tree that is in a state fit for these purposes and, further, a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil. . . . 30. In my opinion, the distinction is sound. Before a tree can be regarded as "standing timber" it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early. The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market. But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee.” 16. In Triveni Engineering (supra), the question was whether turbo alternators are excisable goods under the Central Excise Tariff Act. The Apex Court, in that context, held that from a CRP No. 104/2012 : 8 : combined reading of the definition of immovable property' in Section 3 of the Transfer of Property Act and Section 3 (25) of the General Clauses Act, we can discern that there is neither mobility nor marketability in an immovable property, as understood in the Excise Law. To know whether an article is permanently fastened to anything attached to the earth, we are required to determine both the intention and the nature of property; this has to be ascertained from the facts and circumstances of each case. We, therefore, see little relevance to Triveni Engineering as a precedent in the present context. 17. Indeed, the learned counsel for the respondents 5 & 6, too, has relied on Shantabai (supra), especially paras 28 and 33 thereof. In para 28, their Lordships have observed that a tree, of course, will continue to draw sustenance from the soil if it continues to stand and live; and that physical fact of life cannot be altered by giving it another name and calling it "standing timber". But the nourishment it takes, if it is felled at a reasonably early date, is so negligible that it can be ignored for all practical purposes. The passage of law on the conceptual course of CRP No. 104/2012 : 9 : ‘immovable property’ has empirically grown from instance to instance and decision to decision until a recognisable and workable pattern emerged. 18. True, the Apex Court has observed that trees that have remained uncut for a long time drawing nourishment from the land, as per the Transfer of Property Act and General Clauses Act, could be treated as movable property. To appreciate the proposition of law, we may state the facts of the case. 19. A zamindar executed in 1948 an unregistered document in favour of his wife, granting her a right to enter, cut, and appropriate all kinds of wood from his zamindari forest. The document was purported to be a lease for twelve years and the consideration, too, was stated. In 1951 the proprietary rights in the zamindari estate vested in the State by a notification issued under a particular enactment. As a result, the grantee was stopped from cutting any wood from the forest. The D. F. O. took action against her for unlawful cutting of wood and forfeited the cut materials. The grantee thereupon applied under Art. 32 of the Constitution praying for setting aside of the order of D. F. O. on CRP No. 104/2012 : 10 : the ground that it infringed her fundamental rights under Art. 19 (1) (f) and (g) of the Constitution. 20. Holding that the document was a licence, rather than a lease, the Apex Court has held that the trees may have been regarded as standing timber at the date of the document. But both because of their size and girth and also because of their not getting cut soon, the trees would be movable property for the purposes of the Transfer of Property and Registration Acts. We are, therefore, of the view that the observation of the Apex Court in para 33 of the judgment cannot be read in isolation; on the other hand, they have to be read in the factual backdrop of the case. 21. Be that as it may, now, the Act has effective provisions against the dissipation of any property of whatever description. As per the newly inserted Section 104-A of the Act, which begins with a nonobstante clause, no person shall sell, gift, exchange, mortgage or transfer any movable or immovable property which is a wakf property to any other person. Any such sale, gift, exchange, mortgage or transfer of property shall be void ab initio. 22. In these facts and circumstances, we are of the opinion CRP No. 104/2012 : 11 : that the judgment impugned cannot be sustained; and, accordingly, it is set aside to the extent it calls upon the petitioners to remit the sale proceeds, i.e. ₹60,459/- concerning the trees that had been cut and sold. Nevertheless, it is further directed that the petitioners shall not deal with any property of the Wakf including the standing timber or trees without following the procedure prescribed in the Wakf Act, as it stands now. No order on costs. **Sd/-ANTONY DOMINIC, JUDGE** **sd/- DAMA SESHADRI NAIDU, JUDGE** css/- true copy P.S.TO JUDGE