MAYYERI MUHAMMED KUTTY HAJI v. Kerala State Wakf Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939 WP(C).No. 11623 of 2017 (C) ---------------------------** **WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939** **PETITIONER:** - **-----------** **MAYYERI MUHAMMED KUTTY HAJI S/O.SAIDALIKKUTTY HAJI, AGED 89 YEARS MAYYERI HOUSE, POST KALPAKANCHERY TIRUR TALUK, MALAPPURAM DISTRICT** **BY ADVS.SRI.C.M.MOHAMMED IQUABAL SRI.ANILKUMAR V. (VAZHARAMBIL) SMT.A.P.RUFAIJA** **RESPONDENTS:** - **------------** **1. THE KERALA STATE WAKF BOARD** - **OFFICE OF THE KERALA STATE WAKF BOARD VIP ROAD, ERNAKULAM, KOCHI-682 017 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER** **2. THE CHIEF EXECUTIVE OFFICER** - **THE KERALA STATE WAKF BOARD OFFICE OF THE KERALA STATE WAKF BOAD VIP ROAD, ERNAKULAM, KOCHI-682 017** **3. THE SENIOR SUPERINTENDENT** - **KERALA STATE WAKF BOARD REGIONAL OFFICE, CALICUT, POST CALICUT KOZHIKODE DISTRICT, PIN-673 001.** **4. THE SENIOR SUPERINTENDENT** - **KERALA STATE WAKF BOARD, REGIONAL OFFICE MANJERI, POST MANJERI, MALAPPURAM DISTRICT PIN-676 121.** **5. THE DEPUTY TAHSILDAR (REVENUE RECOVERY) TIRUR TALUK OFFICE, POST TIRUR MALAPPURAM DISTRICT, PIN-676 101** ***ADDNL.R6. DISTRICT COLLECTOR, MALAPPURAM DISTRICT** **ADDITIONAL 6TH RESPONDENT IS SUO MOTU IMPLEADED AS PER ORDER DATED 24.07.2017 IN W.P.(C)NO.11623/2017** **BY GOVERNMENT PLEADER SRI.SYAMJI RAM BY ADV. SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11623 of 2017 (C)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------** **EXHIBIT P1 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 03.06.2006.** **EXHIBIT P2 THE TRUE COPY OF THE DEMAND NOTICE DATED 26.09.2016 ISSUED BY THE FIFTH RESPONDENT.** - **EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 29.03.2017.** ## **RESPONDENTS' EXHIBITS** **---------------------** ## **NIL** ## **// TRUE COPY //** **P.A. TO JUDGE** ## **SD** C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ. ===================== W.P.(C)No.11623 of 2017 ===================== Dated, this the 23[rd] day of August, 2017 ## JUDGMENT ## C.T.Ravikumar, J. The petitioner is the Muthawalli of Quran Recital Wakf and Mayyeri North Niskara Palli Wakf, situated at Kalpakanchery Village of Tirur Taluk. Its property is registered with the Wakf Board. This writ petition is filed seeking the following reliefs: - "i) Call for the records leading up to Exhibit P2 demand notice and quash the same by issuance of a writ of certiorari or any other appropriate writ, order or direction. - ii) Issuing a writ of mandamus or any other appropriate writ, order or direction directing the second respondent to pass appropriate orders on Exhibit P3 representation filed by the petitioner." 2. Ext.P2 demand notice dated 26.9.2016 was issued by the 5[th] respondent to the petitioner requiring him to pay an amount of Rs.15,416/- towards the contribution payable to the Board. The stand of the petitioner is that the Wakf has no W.P.(C) No.11623 of 2017 **2** income of its own and therefore he is not liable to pay any contribution to the Wakf Board. In fact, the said demand notice under the Revenue Recovery Act was issued pursuant to the persistent failure on the part of the petitioner to pay the contribution payable to the Board. On receipt of Ext.P2, the petitioner filed Ext.P3 representation before the 2[nd] respondent. He approached this Court contending that despite Ext.P3 representation, the 5[th] respondent is proceeding with Ext.P2 demand notice. It is in the said circumstances that this writ petition has been filed with the afore-extracted prayers. 3. When this writ petition came up for admission on 04.04.2017, this Court admitted the matter and passed an interim order as follows: "xxxxxxxx There will be an interim stay of coercive steps as against the person and the personal property of the petitioner. The revenue recovery proceedings in relation to the Wakf property can continue." 4. Subsequently, this Court passed interim order dated 22.06.2017. On that day the learned Government Pleader W.P.(C) No.11623 of 2017 **3** submitted that the petitioner had earlier approached the Government against the revenue recovery proceedings and acting upon his representation, instalment facilities were granted. Consequently, the learned Government Pleader was directed to produce copy of the said proceedings. Accordingly, the same was placed on record along with a memo dated 07.07.2017. On a perusal of the proceedings of the Tahasildar, Tirur dated 30.03.2017 we found that it carried a reference regarding a representation dated 30.03.2017 submitted by the petitioner herein and thereupon, we passed further orders on 11.07.2017. As per the same, the learned Government Pleader was directed to obtain and produce copies of the order referred as item No.(i) in the proceedings dated 30.03.2017 and also item No.(ii). Reference No.(i) therein is a Government order bearing GO(MS) No.21/2017/Rev. dated 17.01.2017. Reference No.(ii) therein is an application submitted by the petitioner dated 30.03.2017. After perusing the said representation dated 30.03.2017 and taking note of the nature of the order passed based on such representation, we have issued another interim order on W.P.(C) No.11623 of 2017 **4** 24.07.2017. In fact, taking into account the nature of the dispute involved in the matter, the District Collector, Malappuram was _suo motu_ impleaded as the additional 6[th] respondent and the Government Pleader took notice on behalf of the additional 6[th] respondent. As per the said order, the District Collector was directed to depute a competent officer to inspect the property of the Wakf and to place on record a report on all aspects mentioned in the orders. In the meanwhile, the additional 5[th] respondent filed a counter affidavit. Paragraph No.3 thereunder is worthy to be extracted and it reads thus: “3. It is submitted that as per the request of the petitioner. - Tahsildar ordered to remit Rs.2500/ before 01.04.2017 and the balance amount by 7 equal monthly installments. - Petitioner remitted Rs.2500/ as per DD No.465381 dated 31.03.2017 and the same forwarded to the Requisition Authority. But the petitioner has not remitted the balance amount. He has filed the above mentioned WP(C) No.11623/2017(c) before the Hon.High Court.” (emphasis added) 5. Going by the said counter affidavit, it is clear that based on the representation of the petitioner dated 30.03.2017, the Tahsildar, Tirur ordered him to remit Rs.2500/- before W.P.(C) No.11623 of 2017 **5** 01.04.2017 and allowed him to pay the balance amount in seven equal monthly installments. It would further reveal that pursuant to the order dated 30.03.2017 the petitioner had remitted Rs.2500/-as directed by the Tahsildar, as per Demand Draft No.465381 dated 31.03.2017. There is absolute absence of any reference regarding the aforesaid crucial aspects anywhere in the writ petition, though the writ petition was filed only on 03.04.2017. A scanning of the pleadings in the writ petition would reveal that there is not even a whisper about the factum of his approaching the Deputy Tahsildar with the representation dated 30.03.2017 and needless to say that there is also no reference about the instalment facility granted to him as per the order of the Tahsildar dated 30.03.2017. The fact that in pursuance of the order of the Tahsildar dated 30.03.2017 he had drawn Demand Draft dated 31.03.2017 for Rs.2500/- is also not mentioned in this writ petition. 6. The contentions raised in the writ petition and the afore-extracted prayers would reveal that virtually the challenge in this writ petition is against Ext.P2 demand notice. According W.P.(C) No.11623 of 2017 **6** to the petitioner he is not at all liable to pay contribution to the Wakf Board since the Wakf properties yield no income. It is pertinent to note that he took up such contentions in this writ petition after paying an amount of Rs.2,500/- by Demand Draft and after obtaining instalment facilities based on his own representation. What makes his action blameworthy is the suppression of those facts and the manner in which he represented matter before the Tahsildar for obtaining instalment facilities. A perusal of the representation dated 30.03.2017 based on which the aforesaid order was passed by the Tahsildar, Tirur would reveal that in the said representation he had stated that a writ petition on the said subject matter is pending before this Court and also sought for instalment after making such a statement. 7. Taking note of all these aspects including the suppression of relevant facts, this Court passed another order on 24.07.2017. The petitioner was called upon to show cause by filing an affidavit as to why the interim order passed on 04.04.2017 should not be recalled and appropriate proceedings W.P.(C) No.11623 of 2017 **7** should not be initiated against him for filing false affidavit and also for suppression of facts with the view to mislead this Court. He was directed to file an affidavit showing cause on or before 04.08.2017. Pursuant to the said order, the petitioner filed I.A.No.12548/2017 with a prayer to accept the affidavit. In paragraph 3 of the affidavit accompanying the said petition it is stated thus: - “3. It is most humbly submitted that I have never purposefully suppressed any material facts before this Hon'ble Court at the time of filing this writ petition. I do not have any intention to mislead this Hon'ble Court and I never do so also. If any mistakes have been crept in the writ petition, at the time of filing the same, it is only an inadvertent mistake and it is not intentional. I apologize unconditionally for any such mistake on my part.” 8. In paragraph 4 thereunder, it is stated that nonmentioning of the representation dated 30.03.2070 (sic.30.03.2017) before the 5[th] respondent is only a bona fide mistake on his part and it was not intentional. Further it is stated therein thus: “Ext.P3 representation was prepared and submitted before the 2[nd] respondent on 29.03.2017 with an intention to insist the Wakf Board to take over the management of the W.P.(C) No.11623 of 2017 **8** property belongs to Quran Recital Wakf and Mayyeri North Niskara Palli Wakf.” It is stated that he moved Ext.P3 representation dated 29.03.2017 with an intention to compel the Wakf Board to take over the management of the property. 9. Now, we will proceed to consider the report filed by the additional 6[th] respondent pursuant to the order dated 24.07.2017 passed by this Court. Evidently, the District Collector deputed the Tahsildar, Tirur and he conducted an inspection of the Wakf property in question. It would reveal that various types of trees are standing in the property including 31 coconut yielding trees and 20 areca. A perusal of the said report itself would reveal that the hollowness of the contention that no income could be derived from the Wakf property in question. At the same time, it is disgracing to note that despite the direction to the 1[st] respondent to get instruction regarding nature and extent of Wakf property, whether the petitioner is keeping any account and filing any return touching the management of the Wakf property to the Wakf Board, no affidavit or report has been placed on record. Nonetheless, in view of the manner in which we propose W.P.(C) No.11623 of 2017 **9** to dispose of this writ petition we are of the view it is unnecessary to adjourn the matter any further to facilitate the first respondent to file affidavit or report. 10. We have heard the learned counsel appearing for the petitioner, the learned Government Pleader as also the learned Standing Counsel appearing for the respondents 1 to 4. 11. The facts vividly explained herein-before would reveal the manner in which the petitioner evades from effecting payment of contribution to the Wakf Board. It is the persistent failure on the part of the petitioner to pay contribution that culminated in initiation of revenue recovery proceedings and issuance of Ext.P2. It was issued on the request of the 4[th] respondent for recovering an amount of Rs.15,416/- from the petitioner. As per the same, the 5[th] respondent demanded payment of Rs.15,416/-. Obviously, it is after the receipt of the said demand notice that the petitioner made Ext.P3 representation to the 2[nd] respondent. As per Ext.P3 representation dated 29.03.2017 the petitioner requested the 2[nd] respondent to take steps to stop the revenue recovery W.P.(C) No.11623 of 2017 **10** proceedings and also to take over the management of the Wakf property. Immediately thereafter, to be precise, on the next day itself he has chosen to file a representation before the 5[th] respondent. The copy of the said representation dated 30.03.2017 was produced along with a memo by the learned Government Pleader. In the representation dated 30.03.2017 the petitioner made a reference about the pendency of a writ petition on the said subject matter before this Court. After making such a reference, he requested for instalment facility to pay off the amount demanded. The petitioner is not an illiterate. He is a senior citizen and has been functioning as the Muthavalli of Wakf for the past several decades. In the said representation dated 30.03.2017 filed by the petitioner before the Deputy Tahsildar, Revenue Recovery Tirur, he stated thus: “Pendency of writ petition before the Honourable High Court of Kerala. çÎW Õß×Ï¢ çµÞ¿Äß Éøß·ÃÈÏßW ¦ÏÄßÈÞW ùßAÕùß Ø¢¶cå10 ·ÁáA{ÞÏß ¥ÈáÕÆߺîá ÄøÃæÎKí ¥çÉfßAáKá.” 10. Obviously, it was nothing but a calculated attempt to mislead the authority concerned and to make him yield to his request. Evidently, the petitioner had not filed such a writ W.P.(C) No.11623 of 2017 **11** petition on the subject matter before this Court by that time. Still, purposefully he stated therein that a writ petition is pending before this Court on the subject matter. The petitioner thereupon obtained a favourable order from the said authority and as stated in the counter affidavit based on his representation, the Tahsildar ordered him to pay an amount of Rs.2,500/- on or before 01.04.2017 and he was also permitted thereunder to pay the balance amount in seven equal monthly installments. The said proceedings of the Tahsildar dated 30.03.2017 based on the representation dated 30.03.2017 of the petitioner has been produced by the learned Government Pleader along with a memo dated 07.07.2017. It is to be noted that even before filing this writ petition, in compliance with that order the petitioner had remitted Rs.2,500/- through Demand Draft. It is also pertinent to note that thereafter atleast on two occasions this writ petition was listed before this Court. Till the learned Government Pleader made submission regarding the representation by the petitioner and the consequential order granting instalment facilities the said fact was not at all disclosed to this Court by the petitioner. It is W.P.(C) No.11623 of 2017 **12** only when he was called upon to explain why the interim order should not be recalled and why proceedings should not be initiated against him for filing false affidavit that the petitioner has now come up with an affidavit stating that the non-mentioning of the representation dated 30.03.2017 before the 5[th] respondent was not intentional and it was only a bona fide mistake. We have no hesitation to say that it is not at all capable of inspiring confidence. Paragraph 5 of the writ petition would reveal that the petitioner has vividly made reference about Ext.P3 representation dated 29.03.2017 filed by him before the 2[nd] respondent. He has also stated therein about the receipt of Ext.P2 demand notice and also of his request made in Ext.P3 to take steps to stop recovery proceedings pursuant to Ext.P2 demand notice. The writ petition as also the affidavit accompanying the same were signed by the petitioner only on 02.04.2017. Obviously, by that time he had actually obtained favourable orders from the Tahsildar, Tirur and in compliance with the conditions in the order of the Tahsildar he had also made remittance of an amount of Rs.2500/- through demand draft. If W.P.(C) No.11623 of 2017 **13** the petitioner could make reference about Ext.P3 representation dated 29.03.2017 in the writ petition it cannot be believed that non-mentioning of the representation dated 30.03.2017 before the 5[th] respondent is a bonafide mistake especially when based on the same he got instalment facilities for which alone he made the said representation. It is to be noted that in paragraph 6 of the writ petition he has stated thus:- “It is submitted that even after Ext.P3 representation, the 5th ” respondent is proceeding with the Ext.P2 demand notice. In the affidavit accompanying the writ petition the petitioner has stated that all the paragraphs in the writ petition may be treated as part of the said affidavit. The manner in which the petitioner moved the authority and secured an order from the authority and subsequently suppressed those relevant facts from this Court and thereafter secured an interim order from this Court would reveal the fraudulent method adopted by the petitioner. This cannot go unnoticed, especially in the light of a decision of this Court in **Kunjalavi Chellamma v. District Geologist, Department of Mining & Geology, Kollam and Others [2016(5) KHC 111]** W.P.(C) No.11623 of 2017 **14** authored by one among us (Justice Anil K.Narendran), relying on the decision of the Honourable Apex Court in **Dhananjay Sharma v. State of Haryana [(1995) 3 SCC 757]** and **Sciemed Overseas Inc. v. BOC India Ltd.[(2016) 3 SCC 70]** . In Dhananjay Sharma's case (supra) the Honourable Apex Court held that filing of false affidavit or making false statement on oath in courts aims at striking a blow at the Rule of Law and no court could ignore such conduct which had the tendency to shake public confidence in the judicial institutions because by such conduct the very structure of an ordered life would be put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by resorting to filing of false affidavits or giving false statements and fabricating false eviden in a court of law, it was further held therein. Such aspects were elaborately dealt with, in paragraph 38 of the said decision. In **Muthu Karuppan v. Parithi Ilamvazhuthi [(2011) 5 SCC** **496]** , the Honourable Apex Court held that filing of a false affidavit should be effectively curbed with a strong hand. The Honourable Apex Court in Sciemed Overseas's case (supra) W.P.(C) No.11623 of 2017 **15** observed that though the observation in Muthu Karuppan's case was made in the context of the contempt of the court proceedings, the view expressed must be generally endorsed to preserve the purity of judicial proceedings. In the light of the said decisions of the Honourable Apex Court referred supra and also the decision of this Court in Kunjalavi Chellamma's case (supra), we have no hesitation to hold that the aforesaid action on the part of the petitioner was made with an intention not only to mislead the authorities but also of this Court. A conjoint reading of the afore-extracted portion from the affidavit accompanying the writ petition and the writ petition would reveal that concealing the order dated 30.03.2017 passed by the Tahsildar, Tirur the petitioner made this Court to believe that the 5[th] respondent was proceeding with Ext.P2 demand notice. The representation dated 30.03.2017 based on which such an order was passed by the Tahsildar, Tirur would reveal that the petitioner had only sought for instalment facility and it was granted based on his request subject to conditions. The contumacious action on the part of the petitioner in concealing W.P.(C) No.11623 of 2017 **16** the crucial facts and filing false affidavit, as mentioned above, has to be dealt with strongly as observed by the Apex Court. Taking into account the manner in which the petitioner has been functioning as Muthavalli, his stand that no income is derived or derivable from the Wakf property and at the facts revealed from the report of the additional 6[th] respondent regarding the assets of the Wakf, we are of the considered view that it is only befitting to issue a direction to the Wakf Board to conduct an enquiry in accordance with the provisions of the Wakf Act and Rules as to income of the Wakf and how the petitioner appropriated it. It is ordered accordingly. In such circumstances, we are of the view that this writ petition deserves to be dismissed subject to such a direction. If on such an enquiry, it is ultimately found that action requires to be initiated against the petitioner it should be initiated in accordance with law without failure and without delay. Since the petitioner has obtained instalment facility from the Tahsildar, Tirur by misleading him and even the condition therein to pay the amount in instalment was not complied with, he cannot be permitted to enjoy that facility any further. Obviously after W.P.(C) No.11623 of 2017 **17** remitting an amount of Rs.2,500/- he had not remitted the balance amount as directed by the Tahsildar, Tirur. Since he will not be entitled to get the instalment facilities the amount has to be recovered in full, in accordance with law. Subject to the above direction, this writ petition is dismissed and in the circumstances with a cost of Rs.20,000/-. The petitioner shall pay the said amount to the Kerala State Legal Services Authority (KELSA). It is made clear that if he fails to pay the amount on or before 23.10.2017, the Secretary, KELSA shall cause initiation of revenue recovery proceedings to recover the said amount in terms of the notification issued under the provisions of the Revenue Recovery Act. Sd/- C.T.RAVIKUMAR (JUDGE) Sd/- ANIL K. NARENDRAN (JUDGE) sd