Moideenkutty Kolloli v. Kunnathiyil Kasim and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **OP (WAKF) NO. 4 OF 2021** **OS 9/2020 OF WAKF TRIBUNAL, KOZHIKODE, KOZHIKODE** ## **PETITIONER/S:** MOIDEENKUTTY KOLLOLI, AGED 66 YEARS S/O. MOYINKUTTY, BAITHUL MASHAHIK, SIYAMKANDAM, PULLIKKAL-673 637 BY ADV M.KRISHNAKUMAR ## **RESPONDENT/S:** 1 KUNNATHIYIL KASIM, AGED 60 YEARS S/O. ALAVI HAJI, AMBALIL HOUSE, SIYAMKANDAM, PULLIKKAL-673 637 2 KUNHAMMADKUTTY POYYILI AGED 55 YEARS KOZHISSERI HOUSE, SIYAMKANDAM, PULLIKKAL-673 637 3 AVARANKUTTY KUNDERI, AGED 66 YEARS S/O. MAMMAD, VARUVEEDU HOUSE, SIYAMKANDAM, PULLIKKAL-673 637 4 ABDUL RAZAK.T.C. AGED 54 YEARS THACHARAKAVIL HOUSE,PERIYAMBALAM PULLIKKAL-673 637 5 YASAR ARAFATH, AGED 38 YEARS S/O. MUHAMMED, THAZHATHODI HOUSE, SIYAMKANDAM, PULLIKKAL-673 637 ## **OP (WAKF) NO. 4 OF 2021** -2- - 6 MUHAMMED POYILI, AGED 70 YEARS S/O. ALAVI, AMBALIL HOUSE, SIYAMKANDAM, PULLIKKAL673 637 - 7 V.P.MOIDEENKUTTY,AGED 58 YEARS S/O. ABDURAHIMAN HAJI, PUTHILAYI HOUSE, PERIYAMBALAM, PULLIKKAL-673 637 - 8 MUHAMMED MANNOLI, AGED 67 YEARS S/O. ALAVI, THAZHATHE KALATHIL HOUSE, OTTUPARA, PULLIKKAL-673 637 - 9 ABDU RAZAK.K.,AGED 37 YEARS S/O. UNNIMMAD, KARAKUTTASSERI HOUSE, SIYAMKANDAM, PULIKKAL-673 637 - 10 MUSTHAFA EDAMBATTU AGED 40 YEARS S/O.HASSAIN, PALATHICHALIL HOUSE, SIYAMKANDAM, PULLIKKAL-673 637 - 11 STATE OF KERALA,REP BY DISTRICT COLLECTOR, COLLECTORATE, UP HILL, MALAPPURAM DISTRICT-676 505 - 12 DISTRICT REGISTRAR AND REGISTRAR OF SOCIETIES, OFFICE OF THE DISTRICT REGISTRAR, CIVIL STATION, MALAPPURAM-676 505 - 13 THE KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, ERNAKULAM-682 017 - 14 SIYAMKANDAM MASJIDU SUNNIYEEN COMMITTEE, REP BY GENERAL SECRETARY, UNNIMAMMAD.K., S/O. SAIDALAVI, AGED 50 YEARS, KALPPAKASSERI HOUSE, SIYAMKANDAM, PULLIKKAL-673 637 **OP (WAKF) NO. 4 OF 2021** -3- 15 UNNI MAMMAND.K.,SAIDALAVI, GENERAL SECRETARY, SIYAMKANDAM MASJID SUNNIYEEN COMMITTEE,KALPPAKASSERI HOUSE, SIYAMKANDAM, PULLIKKAL-673 637 16 MUHAMMED KUTTY.K.,AGED 68 YEARS S/O. ALAVI HAJI, PRESIDENT, SIYAMKANDAM MASJID SUNNIYEEN COMMITTEE,SAMEER MANZIL, PERIYAMBOLAM, PULLIKKAL-673 637 BY ADVS. SMT.LIGEY ANTONY SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD SHRI.JAWAHAR JOSE SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD ## **OTHER PRESENT:** SC JAMSHEED HAFIZ, ADV SARUN RAJAN FOR JAWAHAR JOSE FOR R15 AND R16., GP ARUN AJAY SHANKAR THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP (WAKF) NO. 4 OF 2021** -4- ## **J U D G M E N T** (Dated this the 29[th] day of October 2021) ## **BASANT J.,** Aggrieved by Ext.P10 order passed by the Waqf Tribunal, Kozhikode refusing to hear the maintainability of the suit as a preliminary issue is challenged in this O.P. (Waqf). 2. The 'Siyamkandam Masjiddusunnia' is a Waqf registered under Section 36 of the Waqf Act 1995. The muthavalli of the Waqf is the 14[th] respondent herein. An election was conducted to the office bearers of the registered society and the petitioner was declared as the President and respondent Nos.1 to 10 as their office bearers at the General Body meeting. The list of the elected **OP (WAKF) NO. 4 OF 2021** -5- members were submitted before the 12[th] respondent and the same was objected by the 16[th] respondent. 3. The 12[th] respondent conducted an enquiry into the complaint made by the 16[th] respondent and held that the list of members submitted by the petitioner along with respondent Nos.1 to 10 were genuine and could be accepted. The 12[th] respondent, thereafter passed Ext.P3 order. 4. Ext.P3 was challenged before this court in W.P.(C) No.15108 of 2019, which was dismissed by the learned Single Judge leaving open the right to challenge Ext.P3 before the Tribunal or any Civil Court. After the judgment in W.P.(C) No.15108 of 2019, respondent Nos.14 to 16 filed O.S. No.9 of 2020 before the Waqf Tribunal, Kozhikode, for declaring that the list of office bearers submitted by the 3[rd] plaintiff on 4.1.2019 before the 13[th] defendant for the term 2019-2020 is the true and real list of office bearers of the society bearing Reg.No.264 of 1986 for the said term and declaring further that the list of office **OP (WAKF) NO. 4 OF 2021** -6- bearers submitted by the 4[th] defendant for the period 19871988 to 2015-2016, 2016-2017, 2017-2018, 2018-2019 and 2019-2020 respectively on 16.3.2015, 13.9.2016, 4.1.2017 and 7.1.2019 are incorrect and not binding up on the plaintiff society. There were other prayers also. The Waqf Tribunal framed seven issues. But the question of maintainability was not framed. So, the defendant Nos.1 to 11 filed a petition as I.A. No.622 of 2020 in the suit to frame an issue of maintainability also and the Waqf Tribunal allowed the same as per order dated 13.1.2021. After the order was passed regarding the framing of issue on maintainability, the petitioner filed I.A. No.66 of 2021 to hear the question of maintainability as a preliminary issue before proceeding with the suit. 5. The Tribunal, as per Ext.P10 order, closed the said I.A. as the Tribunal was of the opinion that the question of maintainability of issues was already framed. The petitioner challenges the said decision on the ground that if the question of maintainability is not decided initially, the **OP (WAKF) NO. 4 OF 2021** -7- same is prejudicial to their contention that the suit is not maintainable. The learned counsel for the petitioner also contends that the decision was reported in **Moosakutti Y C @ Moosa Moulavi and others v. Liwa-Ul Huda Islamic Trust and others [2021(1) KHC 218]** , wherein the parameters of the jurisdiction of the Waqf Tribunal was enumerated is also not looked into by the Waqf Tribunal in dismissing the maintainability petition. The learned counsel prays that Ext.P10 be set aside and Tribunal may be directed to re-consider Ext.P9 on its merits. 6. On the other hand, the learned counsel for the 13[th] respondent submits that the question regarding the maintainability can be considered by the Tribunal on its merits. The learned counsel for the other contesting respondents submitted that there is no infirmity in Ext.P10 order passed by the Waqf Tribunal, Kozhikode. 7. The first prayer in the Original Petition is to declare that Ext.P5 suit filed before the Waqf Tribunal, Kozhikode by respondent Nos.14 to 16 is not maintainable due to inherent **OP (WAKF) NO. 4 OF 2021** -8- lack of jurisdiction. 8. We have gone through Exts.P5, P7, P9 and P10 and we are of the firm opinion that Ext.P10 order is cryptic and is not passed taking into consideration of the contentions raised in Ext.P10 regarding the maintainability. The Waqf Tribunal ought to have gone into the question whether the issue regarding the maintainability has to be decided as a preliminary issue. In the result, this Original Petition is allowed, setting aside Ext.P10 order and the Waqf Tribunal is directed to reconsider Ext.P9 on merits, within a period of two months from the date of receipt of a certified copy of this judgment. **sd S.V.BHATTI JUDGE sd BASANT BALAJI, JUDGE** _dl/_ **OP (WAKF) NO. 4 OF 2021** -9- ## **APPENDIX OF OP (WAKF) 4/2021** - PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE WAKF DATED 16.06.2003 - EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 3.09.1986 UNDER THE SOCIETIES REGISTRATION ACT 1860 - EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 24.05.2019 OF THE 12TH RESPONDENT/DISTRICT REGISTRAR OF SOCIETIES - EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 9.07.2019 IN WPC NO.1 5108/2019 OF THE HIGH COURT OF KERALA - EXHIBIT P5 TRUE COPY OF THE PLAINT IN OS 9/2020 ON THE FILE OF THE WAKF TRIBUNAL KOZHIKODE - EXHIBIT P6 TRUE COPY OF THE ISSUES FRAMED BY THE WAKF TRIBUNAL KOZHIKODE ON 10.12.2020 IN OS 9 OF 2020 - EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13.01.2021 IN IA NO.622/2020 IN NOS 9/2020 - EXHIBIT P8 TRUE JUDGMENT DATED 26.11.2020 REPORTED IN 2021 (1) KHC 218 - EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT AN APPLICATION IN IA 66/2021 IN OS 9/2020 - EXHIBIT P10 TRUE COPY OF THE ORDER DATED 13.1.2021 IN IA NO.2021