High Court of KeralaDivision Bench2022-08-26Petition disposed of with liberty to approach W...

Mohammed Ashraf K. v. Cannonnore District Muslim Educational Association (CDMEA) and others

Case / Petition Number:WP(C) No. 19496 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S.V. Bhatti
Basant Balaji, J.
Judgment Date: 2022-08-26
Court Decision / Holding: Writ petition disposed of. The court did not quash Ext.P9 but noted the petitioner has an efficacious and alternate remedy by way of an appeal before the Wakf Tribunal, which had already been availed. It directed that the Wakf Tribunal hear the petitioner and other parties, and, until disposal of the appeal, the educational society shall not undertake construction without sanction or orders from authorities in accordance with law.
Final Disposition: Petition disposed of with liberty to approach Wakf Tribunal and with a protective interim direction against construction without proper sanction; no interference with Ext.P9; pending Tribunal decision, construction prohibited without sanction.

Parties to the Case

Appellants / Petitioners

Mohammed Ashraf K

Respondents

Cannonnore District Muslim Educational Association (CDMEA) represented by its President
Kerala State Wakf Board represented by the Chief Executive Officer
Kerala State Wakf Board Divisional Officer, Kannur
Talipparamba Municipality represented by its Secretary
Thalipumbu Jumath Palli represented by its President
Allamkulam Mahamood, Secretary, CDMEA

Legal Representation & Advocates

Counsels for Petitioners

• Jamsheed Hafiz
• P.A. Mohammed Shah
• Abhilash K.N.
• V.V. Surendra N.
• P.A. Harish
• Anusree C
• Munas K.P
• Renoy Vincent
• Helen P.A.
• Shahir Showkath Ali
• Sunil Nair Palakkat

Case Synopsis & Summary

Mohammed Ashraf K., a member and beneficiary of the Thaliparambu Jumath Palli, approached the Kerala High Court seeking to quash Ext.P9, a May 30, 2022 order of the Divisional Officer, Kerala State Wakf Board. The petitioner contends that CDMEA, which operates Sir Syed College, Thaliparamba under a registered lease (Lease No.204/1967) of Wakf property, has undertaken construction without prior sanction from the Wakf Board, violating Rule 20(2) of the Wakf Properties Lease Rules, 2014 and Rule 98(2) of the Kerala State Wakf Rules, 2019. The Wakf Board and local authorities had repeatedly indicated that construction on Wakf property required Board approval. Ext.P9 records the Divisional Officer finding no impediment to construction, citing a Board permission granted in 1966 and noting that the structures would form part of the Jama-ath Palli’s assets, to be handed over at lease expiry. The petitioner had also challenged a related WOS 58/2020, which the court indicated was not maintainable. The court observed that the petitioner has an efficacious, alternate remedy via an appeal to the Wakf Tribunal, which had already been pursued. Accordingly, the court did not quash Ext.P9 but disposed of the petition, directing the Wakf Tribunal to hear the matter and, pending its decision, held that no construction should proceed without proper sanction under law.

Provisions of Law Cited

Rule 20(2) of Wakf Properties Lease Rules, 2014Rule 98(2) of Kerala State Wakf Rules, 2019

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that Ext.P9 is illegal as it bypasses Wakf Board authority for construction on Wakf property. He contends that the lease and relevant Wakf Rules require prior Board sanction for any construction on the leased premises. He sought to quash Ext.P9 and to direct enforcement of building permissions under law, while restraining further construction without Wakf Board consent. He also highlighted the lack of prior Wakf sanction despite the lease and the 2020 complaint; he relied on the Wakf Rules to assert Board primacy over construction on Wakf property.

Contentions of Respondents

The respondents contended that the Divisional Officer’s Ext.P9 allows construction because the Wakf Board had already granted permission in 1966. They argued that the ongoing construction is permissible under that prior sanction, and the structures will remain assets of Jama-ath Palli. They emphasized the availability of an alternative remedy through the Wakf Tribunal and urged respect for the Tribunal process rather than judicial interference in a matter already under statutory remedy.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rashid Wali Beg v. Farid Pindari	2021(6) KLT 482 (SC)	Positive	Cited to justify the existence and viability of an efficacious alternate remedy via the Wakf Tribunal and to support the court’s reluctance to interfere with Ext.P9, aligning with the principle of exhausting statutory remedies.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944** ## **WP(C) NO. 19496 OF 2022** ## **PETITIONER/S:** MOHAMMED ASHRAF. K AGED 35 YEARS S/O ALI K.P., ASMA VILLA, C H ROAD, NEAR YATHEEMKHANA U.P.SCHOOL, TALIPARAMBA AMSOM AND DESOM, TALIPARAMBA P.O., PIN - 670141 BY ADVS. NIRMAL.S VEENA HARI RIA ELIZABETH JOSEPH IRENE ELZA SOJI K. REMIYA RAMACHANDRAN ANJANA A. VARUN MURALEEDHARAN ## **RESPONDENT/S:** 1 1. CANNONNORE DISTRICT MUSLIM EDUCATIONAL ASSOCIATION (CDMEA) REP. BY ITS PRESIDENT 1. CANNONNORE DISTRICT MUSLIM EDUCATIONAL ASSOCIATION (CDMEA) SIR SYED COLLEGE, KARIMBAM P.O., TALIPARAMBA, KANNUR, PIN - 670142 2 THE KERALA STATE WAKF BOARD, REP. BY THE CHIEF EXECUTIVE OFFICER THE KERALA STATE WAKF BOARD OFFICE, VIP ROAD, KALOOR, ERNAKULAM ., PIN - 682017 3 KERALA STATE WAKF BOARD DIVISIONAL OFFICER THE KERALA STATE WAKF BOARD DIVISIONAL OFFICE, DISTRICT AYURVEDA HOSPITAL ROAD, THANA, KANNUR, PIN - 670012 **WP(C) NO. 19496 OF 2022** -2- - 4 TALIPARAMBA MUNCIPALITY REP. BY ITS SECRETARY MUNICIPAL OFFICE , MUNICIPAL OFFICE ROAD OR COURT ROAD, TALIPARAMBA, KERALA , PIN - 670141 - 5 THALIPARAMBU JUMATH PALLI REP. BY ITS PRESIDENT THALIPARAMBU JUMATH PALLI, THALIPARAMBU, KANNUR, PIN - 670141 - 6 ALLAMKULAM MAHAMOOD AGED 51 YEARS S/O ABDULLA, SECRETARY, CANNONNORE DISTRICT MUSLIM EDUCATIONAL ASSOCIATION (CDMEA), SIR SYED COLLEGE, KARIMBAM P.O., TALIPARAMBA, KANNUR-, PIN - 670142 BY SHRI JAMSHEED HAFIZ, STANDING COUNSEL P.A.MOHAMMED SHAH ABHILASH K.N. V.V.SURENDRAN P.A.HARISH ANUSREE.C MUNAS K.P RENOY VINCENT HELEN P.A. SHAHIR SHOWKATH ALI SUNIL NAIR PALAKKAT(K/1049/1999) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 19496 OF 2022** -3- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **WP(C) NO. 19496 OF 2022** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 26[th] day of August 2022) ## Basant Balaji J., The petitioner, member and beneficiary of the Thaliparambu Jumath palli, has approached this court to quash Ext.P9 order dated 30.5.2022 of the Divisional Officer, Kerala State Wakf Board. A further direction was also sought to ensure that no structures are constructed in the subject matter of the property in the lis, belong to the 5[th] respondent without prior sanction of the 2[nd] respondent. 2. Cannanore District Muslim Municipality the first respondent (for short 'CDMEA') is in possession of the **WP(C) NO. 19496 OF 2022** -4- property on the basis of a registered lease deed No.204/1967 of District Registrar, Thalassery executed between the CDMEA and Jumath Palli for conducting a college, by name Sir Syed college, Thaliparamba. The grievance of the petitioner is that CDMEA had constructed the building and structures in the above property and is continuing construction activities without obtaining any previous sanction/approval from the Kerala State Wakf Board for constructions in the lis property. 3. According to Rule 20(2) of the Wakf Properties Lease Rules, 2014, the lessee shall not build any structures of the lis properties without any approval of the Board. Rule 98(2) of the Kerala State Wakf Rules 2019 also reads that the Grama Panchayath/ Municipality or Corporation **WP(C) NO. 19496 OF 2022** shall not issue permission for construction/reconstruction of the building in the Wakf property without prior sanction of the Board. 4. The petitioner filed a complaint before the 3[rd] respondent when a three storied building was being constructed by the 3[rd] respondent in the lis premises. The Division Officer, by Ext.P4 order dated 27.8.2020, informed the Secretary of the Thaliparamba Municipality Corporation that no permission for construction shall be granted without prior permission from Board regarding the constructions in the leased premises by the first respondent. Ext.P5 is a notice dated 24.9.2020 by the Secretary of Thaliparamba Municipality informing that any construction activities can be done in the lis properties only after **WP(C) NO. 19496 OF 2022** -6- approval from the Wakf Board and on production of necessary documents and obtaining building permit. The first respondent filed an application before the 3[rd] respondent to review the order passed by the 3[rd] respondent. Thereafter, a notice was issued to the petitioner herein and he filed a detailed objection opposing the review petition. The 3[rd] respondent thereafter passed Ext.P9 order dated 30.5.2022 which is impugned in this Writ Petition, reads as follows “In the above circumstances the Divisional Officer feels that there is no impediment on the side of the CDMEA in making constructions for the educational Institutions or for its amenities in the leased promises in accordance with the building rules applicable to that particular area as the Board has already granted **WP(C) NO. 19496 OF 2022** -7- permission to CDMEA by its order dated 17 September 1966. It is made clear that the buildings constructed by the CDMEA in the leased. premises as mentioned above will form part of the asset of the Jama-ath Palli and the CDMEA shall hand over the possession of the land and the buildings situated therein to the any objection. Thaliparamba Juma ath Palli on the expiry of the lease without claim or period any any objection.” 5. Though the petitioner filed W.O.S No.58 of 2020, a suit for permanent prohibitory injunction restraining defendant Nos.1 to 3 from making any construction in the plaint schedule properties and for consequent reliefs, the plaint was returned as not maintainable. Impugning the order of the Divisional Officer, Kerala State Wakf Board, this writ petition is filed. **WP(C) NO. 19496 OF 2022** -8- 6. From the records produced we see that the petitioners had already moved Wakf Tribunal impugning Ext.P9. But, it is submitted by the counsel for the petitioner as well as the respondents that though Ext.P13 order was passed returning the plaint, it was resubmitted in view of the decision reported in **Rashid Wali Beg v. Farid Pindari [2021(6) KLT 482 (SC)].** In view of the matter, we are not inclined to interfere with Ext.P9 order of the Wakf Board since the petitioner has got an efficacious and alternate remedy by way of an appeal before the Tribunal, which he had already availed. Therefore, we are of the considered opinion that the petitioner is given liberty to work out his remedy against Ext.P9. The Wakf Tribunal shall after hearing the petitioner as well as the counsel appearing for educational institution and taking note of **WP(C) NO. 19496 OF 2022** principal objections in which the Writ Petition is filed for final orders in accordance with law. 7. Till the appeal is disposed of, we direct that the Educational Society shall not make any construction temporarily or permanently in the lis property, without sanction or orders from the authorities in accordance with law. With the above observations, this Writ petition is disposed of. sd ## **S.V.BHATTI, JUDGE** **sd BASANT BALAJI, JUDGE** _dl/_ **WP(C) NO. 19496 OF 2022** -10- ## **APPENDIX OF WP(C) 19496/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SANCTION ACCORDED TO LEASE OUT 21.53ACRES OF LAND FOR 99 YEARS AS PER THE PROCEEDING OF THE 2ND RESPONDENT DATED 17/09/1966 - Exhibit P2 TRUE COPY OF LEASE DEED DATED 22/02/1967 - Exhibit P3 - TRUE COPY OF THE COMPLAINT NO. A4-202/CR DATED 18/08/2020 - Exhibit P4 TRUE COPY OF ORDER NO. A4-202/CR DATED 27/08/2020 Exhibit P5 TRUE COPY OF THE STOP MEMO BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT NO.TP20938/2019 DATED 24/09/2020 Exhibit P6 TRUE COPY OF THE REVIEW PETITION FILED BY THE 1ST RESPONDENT DATED 27/04/2021 OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT - Exhibit P7 TRUE COPY OF NOTICE A4-202/CR DATED 23/06/2021 - Exhibit P8 TRUE COPY OF THE DETAILED COUNTER FILED BY THE PETITIONER DATED 10/08/2021 - Exhibit P9 TRUE COPY OF THE ORDER NO. A6-202/CR DATED 30/05/2022 Exhibit 10 TRUE COPY OF THE COUNTER STATEMENT DATED 23/12/2020 FILED BY THE 4TH RESPONDENT IN WOS.58/2020 ON THE FILE OF THE WAKF TRIBUNAL, KOZHIKODE ## **WP(C) NO. 19496 OF 2022** - Exhibit P11 TRUE COPY OF THE COMMISSION REPORT DATED 16/11/2020 SUBMITTED BY DEEPIKA NAMBIAR, ADVOCATE COMMISSIONER IN WOS.58/2020 - Exhibit P12 TRUE COPY OF THE ORDER DATED 07/05/2021 IN I.A.902/2020 IN WOS.58/2020 - Exhibit P13 TRUE COPY OF THE ORDER DATED 21/10/2021 IN WOS.58/2020 - RESPONDENT EXHIBITS - Exhibit R5(a) A true copy of the bye law of Taliparamba Jumath Palli Trust Committee and its english translation - Exhibit R5(b) A true copy of the counter statement filed by the 5th respondent in A4/202/CR and its english translation - Exhibit R6(a) The true copy of the communication issued by the Chief Town Planner to the 4th Respondent dated 14.06.2016 - Exhibit R6(b) The true copy of the letter issued by the District Town Planner dated 30.06.2020 - Exhibit R6(c) The true copy of the reply submitted by the 1st Respondent dated 03.05.2021 - Exhibit R6(d) The true copy of the letter issued by District Town Planner dated 18.10.2021