MANJALI MUSLIM JAMA-ATH COMMITTEE, MANJALY v. KERALA STATE WAQF BOARD & 9 OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940 ## WP(C).No. 20960 of 2018 ## PETITIONER/S: MANJALI MUSLIM JAMA-ATH COMMITTEE, MANJALY, MANNM P.O., NORTH PARUR, REPRESENTED BY ITS PRESIDENT K.K.IBRAHIM, S/O.KOCHUNNI, AGED 63 YEARS, NILAPPURA HOUSE (KALAPPURA), MANJALY, MANNAM P.O., N.PARUR. BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN SRI.T.H.ABDUL AZEEZ ## RESPONDENT/S: - 1 THE KERALA STATE WAQF BOARD, REPRESENTED BY ITS EXECUTIVE OFFICER, VIP ROAD, KALOOR, KOCHI-17. - 2 M.A.NAZAR, S/O.K.M.AHAMED, MANALIL VEEDU, MANJALY, MANNAM P.O., ERNAKULAM DISTRICT-683 526. - 3 K.N.ANWAR, AGED 31 YEARS, S/O.MUHAMMED, KULATHINGAPARAMBU, MANJALI, MANNAM P.O.-683 516. - 4 K.K.ABDURAHIMAN, AGED 63 YEARS, - S/O.KUNJAHAMED, KARIYATHIPPILLI, MANJALI, MANNAM P.O.-683 526. - 5 P.A.ABDUALLAKUTTY, AGED 26 YEARS, S/O.ABDUL KHADER, VEVATTU VEEDU, MANJALI, MANNAM P.O.-683 526. W.P.(C) No. 20960/2018 -2- - 6 T.K.MUJEEB, - AGED 34, S/O.KHADER, THARAYIL VEEDU, MANJALI, MANNAM P.O.683 526. - 7 P.K.ABDUL KAREEM, AGED 64, S/O.KUNJU MUHAMMED, PALAKKAL VEEDU, MANJALI, MANNAM P.O.-683 526. - 8 M.H.SHANAVAS, AGED 31 YEARS, S/O.HAMEED, MATTATHIL, PARAPPURAM, MANJALY, MANNAM P.O., ERNAKULAM DISTRICT-683 526. - 9 A.B.KUNJU MUHAMMED, AGED 49, S/O.BAVAKUNJU, ANJUPARAMBIL, MANJALI, MANNAM P.O.-683 526. - 10 M.A.SHAJEER S/O.ABOOBACKER, MATTATHIL HOUSE, MANJALI, MANNAM P.O.683 526. BY ADV. SRI.P.K.MOHAMMED PUZHAKKARA SRI. T P SAJID SC WAKF BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **JUDGMENT** ## K. Harilal,J. This writ petition has been filed mainly challenging the legality and sustainability of Ext.P1 order passed by the first respondent on Ext.P2 application filed by respondents 2 to 10 herein. Ext.P2 application has been filed by respondents 2 to 10 seeking the reliefs given below: 1. to issue necessary direction to the respondents 2 and 3 for the renovation of Makham situated in the Manjaly Muslim Jama ath as ordered vide O.P.No.40/2010 dated 19.8.13; 2. to institute an enquiry relating to the administration and management of the 1[st] respondent 3. To conduct election to the general council and administrative W.P.(C) No. 20960/2018 -3- samithy of the 1[st] respondent Mahal Jama ath under the supervision of qualified hand as Returning Officer following the principles of democratic method/secret ballot system; 4. To appoint an officer of the Wakf Board for conducting audit of accounts of the 1[st] respondent Mahal Jama ath committee for the year 2006 to 2017; 5. To declare that the election held on 14.4.2017 to the 1[st] respondent Jama ath Committee on the basis of the notice dated 10.3.2017 and 30.3.2017 are null and void and set aside the same; 6. To appoint a competent officer of the Walk Board as the receiver of the 1[st] respondent Mahal Jama ath; vii) Such other relief as the Hon'ble Board may deem fit and proper. 2. The petitioner herein filed Ext.P3 objection to Ext.P2 application on 7.5.2018. On 8.5.2018, the Wakf Board passed Ext.P1 order, whereby the Wakf Board had assumed direct management of Manjali Makham for a period of two years from 1.7.2018 and the period shall be extended further if found necessary. Further, one K.K.Yunus, retired B.D.O. was appointed as the Administrator of the said Wakf and the Administrator was directed to administer the Makham in a proper and legal manner. According to the petitioner, Ext.P1 order was passed in blatant violation of the specific directions of this court in Ext.P6 order, whereby Ext.P4 order passed earlier by the Wakf Board was quashed. Further, it is averred that for invoking the power under Section 65(5) of the Wakf Act, the Wakf Board should enter a finding that the management of the Wakf has contravened the provisions of the Wakf Act. But, in Ext.P2 application, there was no W.P.(C) No. 20960/2018 -4- prayer for invoking the power under Section 65(5) of the Wakf Act. Ext.P2 was filed under Sections 32, 50, 52, 64, 70 and 71 of the Act only and their main grievance was the non-enforcement of the order passed in O.P.No.40 of 2010 only and the Wakf Board had initiated steps for prosecution against the then President and Secretary under Section 61 of the Wakf Act, 1995. While the proceedings under Section 61 of the Act was pending consideration, the Board could not have invoked power under Section 65(5) of the Act for the very same purpose. 3. The Wakf Board and the other respondents have filed separate counter affidavits along with documents to substantiate their contention. Respondents 2 to 10 have produced Exts.R2(a) to (f) and the Wakf Board filed a counter affidavit along with Exts.R1(a) to (c). They have raised contentions to justify invocation of power under Section 65(5) of the Act by the Wakf Board. According to them, Ext.P1 order was passed after hearing the petitioner also and there is no procedural irregularity or violation of natural justice in passing Ext.P1 order. 4. We heard learned counsel for the petitioner and learned counsel for the respondents. 5. The sum and substance of the arguments advanced by the learned counsel for the petitioners is that Ext.P1 order was passed in blatant violation of the specific observations and directions made by W.P.(C) No. 20960/2018 -5- this court in Ext.P6 order. According to the learned counsel for the petitioner, in order to circumvent the directions in Ext.P6 order made by this court, respondents 2 to 10 have filed another application and Ext.P1 order was passed on that application, without complying the procedure specifically prescribed and insisted, for invoking the power under Section 65(5) of the Wakf Act, 1995. Further, it is contended that Ext.P1 order was passed when the prosecution under Section 61 of the Act was pending consideration. The present committee has assumed charge after election on 14.4.2017 and no opportunity had been given to them to show cause as to why the drastic power under Section 65(5) of the Act shall not be invoked. The learned counsel has further drew our attention to the statutory mandate under Section 65(5) of the Wakf Act, 1995 and submitted that in the absence of any material to prove that the management of the Wakf has contravened the provisions of the Wakf Act, the Wakf Board could not have invoked the power under Section 65(5) of the Act. _6. Per contra_ , the learned counsel for the respondents advanced their arguments to justify the reasoning in Ext.P1 order whereunder the Wakf Board has undertaken the management of the Makham. The learned counsel for the respondents drew our attention to Ext.R4(a), the earlier order directing the first petitioner to renovate the Makham within a period of one year from the date of order. It is further submitted that despite the long lapse of more than five years, after the W.P.(C) No. 20960/2018 -6- passing of Ext.R2(a), no renovation work was done by the first respondent in compliance with the aforesaid direction and the same was a sufficient ground to invoke the extra ordinary power under Section 65(5) of the Wakf Act. It was further contended that sufficient opportunity was given to the learned counsel appearing for the petitioners to submit their arguments and Ext.P1 order was passed after hearing the learned counsel appearing for the petitioners also and there was no violation of the natural justice or there was no procedural irregularities in passing the impugned order. In Ext.P6 order, it is specifically stated that the said order will not preclude the Wakf Board from entertaining any application, if the party concerned files such application. Therefore, Ext.P1 order was not passed in violation of Ext.P6 judgment. 7. In view of the submissions at the Bar, the point to be considered in this writ petition is whether Ext.P1 order was passed in violation of the observations and directions made in Ext.P6 order or the provisions under Section 55(5) of the Act or in violation of the Principles of natural justice. Going by Ext.P1 order, it could be seen that it was passed on Ext.P2 application filed by the respondents 2 to 10 herein, who are none other than the respondents in Ext.P6 judgment also. On an examination of Ext.P2 application, we find that the respondents have not prayed for taking over of the management of the Makham and they have prayed for issuance of a direction to the W.P.(C) No. 20960/2018 -7- petitioner herein to take action for renovation of Makham. Thus, _prima facie_ we find that the Wakf Board has granted a relief, which was not prayed for by respondents 2 to 10. So also, it is not discernible from the impugned Ext.P1 order that whether the said order was passed _suo motu_ invoking the power under Section 65(5) of the Act. The reasoning in Ext.P1 shows that the management of the Makham has been taken over on the sole reason that the first respondent has not renovated the same so far and it will result in destruction of an ancestral wakf property. The Jama Ath failed to protect the Makham and its properties which is a separate wakf registered as 3173/RA and the Wakf will suffer huge loss if the ancestral property is destroyed. No other reasoning was given for taking over the Makham. Going by Ext.P6 judgment passed by this Court, we find that from paragraph 12 onwards, this Court has elaborately considered the circumstances under which the power under Section 65(5) of the Wakf Act can be invoked. The relevant paragraphs of Exts.P6 judgment read thus: “12. Section 65(5) of the Wakf Act would reveal that it empowers the Board to take over the administration of a wakf if the Board has evidence before it to prove that management of the Wakf had contravened the provisions of the Wakf Act. This power is conferred not withstanding anything contained in sub section (1) of section 65. 13. In view of the rival contentions as adverted to hereinbefore as also in the light of the decisions referred to supra, the question to be considered is whether principles of natural justice should be read into section 65(5) of the Act. The rules of natural justice are merely a branch of the principle of ultra vires. The privy council in **A-G v.** W.P.(C) No. 20960/2018 -8- ## **Ryan (1980) AC 718** held:- "..........it has long been settled law that a decision which offends against the principles of natural justice is outside the jurisdiction of the decision making authority". Thus, violation of natural justice makes a decision void as in any other case of ultra vires. A Division Bench of this Court referred to the said decision in **Shinu Abraham v. M.G. University (1999 (3) KLT 694)** . Paragraph 5 of the said judgment reads thus:- “The first question to be considered is what extent of the natural justice should be given in such circumstances. If action is taken without complying with the principles of natural justice, the proposed action can be set aside. It is not disputed that the action in cancelling the examination wrote by the petitioners will affect the future of the students and it will substantially affect their rights. Even before a Century, the courts in the civilized countries (Lord Mansfield in _Moses v. Macferlan_ (1760 (2) Burr 1005) and Spaceman v. _Plumstead District Board_ (1885 (10) AC 229) adorned the principle that bodies entrusted with powers could not exercise it without first hearing the person who was going to suffer as a result of the orders passed by it. (See Lord Selborne’s observation in _Spackman’s_ case is quoted by Privy Council in _A-G v. Ryan_ (1980 AC 718) (See al _so Ridge v. Baldwin -_ 1969 AC 40). ...................” A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as it were judicial. A condition requiring same degree of reasonableness will often be prescribed by statute. This is because it cannot be said that procedure is a matter of secondary importance. The procedure is but to be subject to the principles of natural justice unless it is expressly excluded. When the power is drastic only by strict procedural fairness that it could be made tolerable and sustainable. In such circumstances, when the exercise of power under a particular provision is drastic and its invocation would visit with another civil consequence, principles of natural justice must be read into it, even if it does not enjoin for compliance with the principles of natural justice. In such circumstances, the authority empowered should satisfy that reasonable cause to believe the existence of evidence necessitated to exercise the power for passing such an order while invoking the said power. In such circumstances, disclosing existence W.P.(C) No. 20960/2018 -9- of such reasonable cause would eschew any situation for attributing element of arbitrariness in exercise of the said power. 14. Bearing in mind the said position, we will consider the aforesaid question especially in the light of the decisions referred hereinbefore. The ratio of the decisions referred (supra) relied on by the learned counsel is that the mere absence of specific provision to issue notice or to afford an opportunity of hearing under any particular provision would not empower the authority clothed with the said power, which is drastic, to exercise such power in violation of the principle of natural justice if adverse civil consequences will flow from its exercise. A perusal of section 65(5) of the Wakf Act would reveal that it empowers the Wakf Board to take over the administration of a wakf. The administration of wakf is actually being done by Muttawalli and in certain cases, a committee will act as Muttawalli. On a scanning of the impugned order what is forth coming is that subsequent to the final order in O.P.40 of 2010 viz., Ext.P1, the petitioners therein had filed only one application i.e. for attachment and prosecution. Evidently, thereupon, in invocation of the power under section 61 of the Act, Exts.P2 and P3 notices were issued. But at the same time, it is evident from Ext.P4 that it was not passed in the proceedings initiated in invocation of the power under section 61(1)(f) of the Wakf Act. Going by the same, if the muttawalli had failed to carry the directions of the Board or if he had failed to satisfy the Court or Tribunal and if there was no reasonable cause for his failure, he is liable to be punished with fine which may extend to Rs.10,000/- for non-compliance of clauses (a) to (d) and in case of non-compliance of clauses (e) to (h), he is liable to be punished with imprisonment for a term which may extend to six months and also with fine which may extend to Rs.10,000/-. There is no case for the first respondent that Ext.P4 order was passed under section 61(1)(f) of the Wakf Act. Section 64 deals with the power to remove Muttawalli. Going by the said provision, notwithstanding anything contained in any other law or deed of the wakf, the Wakf Board can remove the Mutawalli from his office in situation contemplated under clauses (a) to (k) thereunder. Clause (j) reads thus_ "(j)wilfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder”. Sub section 3 of section 64 also assumes relevance. It reads thus:- "No action shall be taken by the Board under sub-section W.P.(C) No. 20960/2018 -10- (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board.” Certainly, Ext.P4 order was not passed in invocation of the powers under section 64 of the Wakf Act. What is ultimately ordered thereunder is taking over of the management of the Board and certainly it is possible only by exercising the power under section 65 of the Act. It is pertinent to note that evenwhile referring to section 65 of the Act, it is not mentioned thereunder as to whether it was done under sub-section (1) or sub-section (5), of the Wakf Act. We have already taken note of the submission of the learned standing counsel for the Wakf Board that it was issued in exercise of power under section 65(5) of the Wakf Act. True that section 65(5) does not specifically contemplate issuance of notice or affording an opportunity of being heard to the management before taking over administration of the wakf from it. But, without all peradventure, one can say that taking over of the administration of a wakf from its elected committee which is acting as its Muttawalli or from a Muttawalli in exercise of the power under section 65(5) is drastic in nature. Definitely from such order adverse civil consequences will flow. When that be so, in view of the ratio of the decisions referred above, even in the absence of an express provision contemplating issuance of notice or affording an opportunity of being heard or an express provision excluding such requirements, principles of natural justice should be read into the said provision. There is absolutely no case for the first respondent that before issuing Ext.P4 order, separate independent proceedings have been initiated and in such proceedings, writ petitioner or any of the parties to O.P.40 of 2010 was put on notice or they were afforded with an opportunity of being heard. On the other hand, a perusal of Ext.P4 would reveal that the Board has taken over the direct management of Manjaly Muslim Jama ath by invoking the power under section 65(5) of the Act for a period of two years from the date published in the official gazette. Furthermore, it was mentioned clear under that it would be extended if found necessary. Pursuant to the order passed by this Court on 21.04.2017 directing the production of notice issued under section 65(1) of the Wakf Act permitting the administrator and staff appointed by the Wakf Board to take over the direct management of the Makham, notification dated 6.3.2017 was produced along with a memo. It is stated therein that the Wakf Board had passed an order dated 17.1.2017 in O.P. 40 of 2010 taking over the administration of the Manjaly Makham and the Manjaly Muslim Jama ath as provided under section 65 of the Wakf Act upon finding that the committee W.P.(C) No. 20960/2018 -11- was not interested in maintaining the wakf and its continuation would be prejudicial to the interest of the wakf.” 9. The principles that can be culled out from the above paragraph is that the principles of natural justice should be read into Section 65(5) of the Act. Even though Section 65(5) of the Act does not specifically mandates issuance of notice to the parties, the requirements of a show cause notice calling upon the Wakf management to show cause as to why the management of the Wakf shall not be taken is implied in Section 65(5) of the Act. Going by the sequences of events in the instant case, we find that Ext.P6 order was passed on 29.06.2017 and Ext.P2 application was filed on 18.12.2017. Though in Ext.P6 order, this Court has specifically held about the requirements of notice under Section 65(5) of the Act, in compliance with the principles of natural justice, respondents 2 to 10 have filed Ext.P2, a fresh application seeking the very same relief prayed earlier. Ext.P1 order was passed on that application on 08.05.2018. It is true that the petitioners herein have submitted an objection to the said application on 07.05.2018 only and immediately on the next day, the Wakf Board passed Ext.P1 order. It is pertinent to note that when there was no specific prayer for taking over the management of the Makham by the Wakf Board in Ext.P2 application, certainly the Wakf Board should have issued a notice to the petitioner herein requiring to show cause as to why the power under Section 65(5) of the Act shall not be invoked to take over the management of Makham. In short, W.P.(C) No. 20960/2018 -12- the petitioners herein had no opportunity to file objection against invocation of a power under Section 65(5) of the Act. In the above context, it is to be remembered that in Ext.P6 judgment, this Court has emphasised the requirement for such a notice as the invocation of power under Section 65(5) of the Act is a drastic step envisaged under the Wakf Act, 1995. 10. In the above view, we find that Ext.P1 order has been passed in denial of the principles of natural justice and in violation of the specific direction of this Court in Ext.P6 order. The respondents have taken an undue advantage from the observations of this Court that Ext.P6 order will not preclude the Board from entertaining any application if any party concerned files such application. The Wakf Board should have understood the observations in Ext.P6 judgment in its correct perspective before invoking the extra ordinary power under Section 65(5) of the Act. In the above view, Ext.P1 order is not justifiable at any point of view. 11. The learned counsel for the petitioner submits that the present committee has taken charge on 14.04.2017 only and the proceedings is going on against the then office bearers of the first petitioner Jama Ath, who held the posts in 2010. He has further submits that they are ready and willing to renovate or re-construct the Makham building without destroying the tomb therein. 12. We are of the view that if they are ready and willing to W.P.(C) No. 20960/2018 -13- renovate or reconstruct the dilapidated Makham building, an opportunity can be given to the petitioner to renovate or re-construct the said building without destroying the tomb therein. That apart, we are not satisfied with the reasoning whereby the Wakf Board has taken the management of the Makham as the taking over was made in violation of the principles of natural justice and the directions and the observations of this Court in Ext.P6. Consequently, Ext.P1 order will stand set aside. The undertaking made by the learned counsel for the petitioner for and on behalf of the petitioner is recorded and the construction or renovation of the Makham building without destroying the tomb therein shall be done at the earliest, at any rate, within a period one year from today. In the event of failure, the Wakf Board is at liberty to invoke Section 65(5) of the Act after issuing a notice to the petitioner herein and after hearing all the affected parties including the petitioner. This writ petition is disposed of as above. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv/kav_ W.P.(C) No. 20960/2018 -14- ## **APPENDIX** ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER OF THE WAQF BOARD DATED 8-5-2018 IN O.P.NO.138 OF 2017. EXHIBIT P2 TRUE COPY OF THE O.P.NO.138/2017 BEFORE THE FIRST RESPONDENT BOARD. EXHIBIT P3 TRUE COPY OF THE WRITTEN OBJECTION IN O.P.NO.138/2017. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17-1-2017 OF THE WAKF BOARD IN O.P.NO.40/2010. EXHIBIT P4(A) TRUE COPY OF THE PETITOIN NO.40/2010 FILED BEFORE THE WAKF BOARD, ERNAKULAM. EXHIBIT P5 TRUE COPY OF THE REVISIONAL ORDER OF THE GOVERNMENT DATED 7-4-2017. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 29-6-2017 IN WP(C)NO.14020 OF 2017. ## RESPONDENTS' EXHIBITS: EXT.R2(a): PHOTOSTAT COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 19.08.2013. EXT.R2(b): RELEVANT PORTION OF THE BYELAW OF THE MANJALI MUSLIM JAMAATH. EXT.R2(c):PHOTOSTAT COPY OF THE GAZETTE NOTIFICAITON DATED 13.07.2018. EXT.R2(d): PHOTOGRAPH SHOWING THE NOTICE PUBLISHED BY THE ADMINISTRATOR ON TAKING CHARGE OF THE MAJALY MUSLIM JAMA ATH. EXT.R2(e): PHOTOSTAT COPY OF THE APPLICATION FORM OBTAINED UNDER RIGHT TO INFORMATION ACT. EXT.R2(f): PHOTOGRAPH OF THE MAKHAM IN THE MAJALY MUSLIM JAMA-ATH. ANNEXURE R1: TRUE COPY OF THE ORDER IN O.P. 40/2010 OF THE WAQF BOARD DATED 19.08.2013. ANNEXURE R1(a): TRUE COPY OF THE RELEVANT PAGES OF THE BYE LAW OF THE MAJALI MUSLIM JAMA-ATH. ANNEXURE R1(b): TRUE COPY OF THE GAZETTE PUBLICATION DATED 13.07.2018. /True Copy/ PS to Judge. W.P.(C) No. 20960/2018 -15-