Muhammedkutty @ MAMMU HAJI v. Madambattu Vadakkevallath Enikutty (deceased) and others, and Kerala State Waqf Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` & ``` ## **`THE HONOURABLE MR.JUSTICE G. GIRISH`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` C.R.P.(WAKF)NO.12 OF 2024 ``` ``` (AGAINST THE ORDER DATED 30.01.2024 IN I.ANO.53 OF 2024 IN ``` ``` W.O.S.NO.10 OF 2022 ON THE FILE OF THE WAQF TRIBUNAL, KOZHIKODE) PETITIONER/PETITIONER/3[RD] PARTY: ``` ``` MUHAMMEDKUTTY @ MAMMU HAJI ``` ``` AGED 67 YEARS S/O CHARATH KUNHIBAVA, NIRAMARUTHUR AMSOM DESOM, P.O. NIRAMARUTHUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676109 ``` ``` BY ADV R.RAMADAS ``` ``` RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1 TO 4: ``` - **`1 MADAMBATTU VADAKKEVALLATHU ENIKUTTY AGED 75 YEARS, S/O ABU TAYUMMA, MADAMBATTU HOUSE, P.O. NIRAMARUTHUR, VIA TIRUR, MALAPPURAM DISTRICT (DIED), PIN - 676109`** - **`2 MADAMBATTU VADAKKEVALLATHU ABU SALI AGED 72 YEARS S/O MUHAMMED, MADAMBATTU HOUSE, P.O. NIRAMARUTHUR, VIA TIRUR, MALAPPURAM DISTRICT, PIN - 676109`** - **`3 MADAMBATTU VADAKKEVALLATHU ABDUL KHADER HAJI AGED 70 YEARS S/O ABU, MADAMBATTU HOUSE, P.O. NIRAMARUTHUR, VIA TIRUR, MALAPPURAM DISTRICT, PIN - 676109`** - **`4 MADAMBATTU VADAKKEVALLATHU ABU SALI HAJI AGED 62 YEARS S/O ABDULLA KUTTY @ BAVA, MUTAWALLI, NIRAMARUTHUR KORANGATH JUMA MASJID, MADAMBATTU HOUSE, P.O. NIRAMARUTHUR, VIA TIRUR, MALAPPURAM DISTRICT, PIN - 676109`** 2 C.R.P.(WAKF)No.12 of 2024 - **`5 THE KERALA STATE WAQF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, DIVISIONAL OFFICE, PO MANJERI, MALAPPURAM DISTRICT, PIN - 676121`** - **`6 NOORUL AMEEN @ MUNNA AGED 40 YEARS S/O MUHAMMEDKUTTY, SECRETARY, IRSHADUL ANAM SANGHAM (REGD), NIRAMARUTHUR, (VIA) TIRUR, MALAPPURAM DISTRICT, PIN - 676109`** - **`7 P.V. MUHAMMED BASHEER HAJI AGED 56 YEARS`** ``` S/O ABDULLA P.V., PRESIDENT, IRSHADUL ANAM SANGHAM, P.O. NIRAMARUTHUR, VIA TIRUR, MALAPPURAM DISTRICT, PIN - 676109 ``` - **`8 M. ABDUL SALAM AGED 58 YEARS`** ``` S/O KUNJUMUHAMMED HAJI, MADAMBATTU KALATHIL HOUSE, PRESIDENT, IRSHADUL ANAM SANGHAM, P.O. NIRAMARUTHUR, VIA TIRUR, MALAPPURAM, PIN - 676109 ``` ``` BY ADVS. C.M.MOHAMMED IQUABAL ISTINAF ABDULLAH(K/003112/2022) ANGEL MARY GEORGE(K/00273/2024) MUHAMMED AMEEN(K/1982/2022) P.ABDUL NISHAD(K/537/2016) RAIHANATH T.H.(K/000241/2019) ``` ``` OTHER PRESENT: ``` ``` SRI JAMSHEED HAFIZ - STANDING COUNSEL - KERALA STATE WAKF BOARD ``` ``` THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 C.R.P.(WAKF)No.12 of 2024 ## **ORDER** ## **Anil K. Narendran, J.** The petitioner is a third party to W.O.S.No.10 of 2022 on the file of the Waqf Tribunal, Kozhikode, which is one filed by respondents 1 to 4 herein for a declaration that the 4[th] respondent herein is the Mutawalli of Niramaruthur Korangath Juma Masjid and the waqf properties and for other consequential reliefs. The 1[st] respondent herein is no more. Respondents 5 to 8 herein are arrayed as the defendants in W.O.S.No.10 of 2022. According to the petitioner, the issue has already been decided in an earlier suit filed by another member of the plaintiffs’ family, which was resisted by the petitioner herein, and the order of the Tribunal was confirmed by this Court in C.R.P.No.159 of 2009. In the subsequent suit, i.e., W.O.S.No.10 of 2022, another member of the very same family claims Mutawalliship, without the petitioner in the party array. 2. According to the petitioner, he came to know about the pendency of W.O.S.No.10 of 2022 only on 15.12.2023. He filed I.A.No.53 of 2024 seeking an order to get himself impleaded as an additional defendant in that suit. That application was filed after the filing of proof affidavit, by the plaintiffs. Respondents 2 to 4 4 C.R.P.(WAKF)No.12 of 2024 opposed that interlocutory application by filing a counter statement. The Waqf Tribunal by the impugned order dated 30.01.2024 dismissed that interlocutory application with cost. Feeling aggrieved, the petitioner is before this Court in this Civil Revision Petition, invoking the provisions under Section 83(9) of the Waqf Act, 1994. 3. On 19.02.2024, this Court admitted the matter on file. The learned Standing Counsel for the State Waqf Board took notice for the 5[th] respondent. Urgent notice by speed post was ordered to respondents 2 to 4 and 6 to 8, returnable within four weeks. 4. Heard the learned counsel for the petitioner, the learned counsel for respondents 2 to 4 and the learned Standing Counsel for the State Waqf Board for the 5[th] respondent. Despite service of notice, none appears for respondents 6 and 8. 5. Notice issued to the 7[th] respondent is not returned after service. The learned counsel for the petitioner would submit that the 7[th] respondent, who is one among the defendants in W.O.S.No.10 of 2022, is supporting the petitioner. In such circumstances, considering the nature of the issues involved, we deem it appropriate to dispense with the completion of service of notice on the 7[th] respondent. 5 C.R.P.(WAKF)No.12 of 2024 6. The issue that requires consideration in this revision petition is as to whether the impugned order dated 30.01.2024 of the Waqf Tribunal in I.A.No.53 of 2024 in W.O.S.No.10 of 2022 warrants interference. 7. Order I, Rule 10(2) of the Code of Civil Procedure provides that, the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 8. Therefore, Order I, Rule 10(2) of the Code enables the court to add a ‘necessary party’ or ‘proper party’ so as to effectually and completely adjudicate upon and settle all the questions involved in the suit. Under the said provision, the court is given the discretion to add as a party, any person who is found to be a ‘necessary party’ or a ‘proper party’. A ‘necessary party’ is a person who ought to have been joined as a party and in whose 6 C.R.P.(WAKF)No.12 of 2024 absence no effective decree could be passed by the court. If a ‘necessary party’ is not impleaded, the suit itself is liable to be dismissed. On the other hand, a ‘proper party’ is a person (though not a necessary party) whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a ‘proper party’ or a ‘necessary party’, the court has no jurisdiction to implead such person, invoking its powers under Order I, Rule 10(2) of the Code. 9. The petitioner, who is a third party to W.O.S.No.10 of 2022, filed I.A.No.53 of 2024 before the Waqf Tribunal, invoking the provisions under Order I, Rule 10(2) of the Code of Civil Procedure, 1908 seeking an order to get himself implead as an additional defendant in that suit. That application ended in dismissal by the impugned order 30.01.2024 of the Waqf Tribunal, which reads thus; “This petition filed under Order 1 Rule 10(2) and Section 151 of the Code of Civil Procedure, 1908 to implead the petitioner as supplemental 5[th] defendant in the suit. 2. Counter filed. It is highly belated petition filed only after evidence has started. Hence dismissed with costs.” 7 C.R.P.(WAKF)No.12 of 2024 ## 10. In **Breen v. Amalgamated Engineering Union** **[(1971) 1 All.E.R. 1148]** Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 11. In **Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court held that public orders publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 12. Following the principle laid down in **Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court has reiterated in **Mohinder Singh Gill v. Chief Election Commissioner,** 8 C.R.P.(WAKF)No.12 of 2024 **[(1978) 1 SCC 405]** that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 13. Following the principle laid down in the decisions referred to supra, the Apex Court in **Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364]** held that reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. The right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a 9 C.R.P.(WAKF)No.12 of 2024 ## judicial or quasi-judicial performance. 14. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the impugned order dated 30.01.2024 of the Waqf Tribunal, which is a cryptic order passed by the Waqf Tribunal, whereby I.A.No.53 of 2024 filed by the petitioner for impleadment in W.O.S.No.10 of 2022 stands rejected, cannot be sustained in law. The right to reason is an indispensable part of a sound judicial system. The impugned order, by its silence, virtually made the revisional jurisdiction of this Court under Section 83(9) of the Waqf Act nugatory and ineffective. 15. In such circumstances, this revision petition is allowed by setting aside the impugned order dated 30.01.2024 of the Waqf Tribunal in I.A.No.53 of 2024 in W.O.S.No.10 of 2022 and by directing the Tribunal to pass fresh orders in that interlocutory application, after adverting to the legal and factual contentions raised by both sides and after affording them an opportunity of being heard. 16. The learned counsel for respondents 2 to 4 would point out that the suit was originally numbered before the Waqf Tribunal as W.O.S.No.68 of 2017. 10 ## C.R.P.(WAKF)No.12 of 2024 17. The Tribunal shall pass fresh orders in I.A.No.53 of 2024 in W.O.S.No.10 of 2022, as directed above, as expeditiously as possible, at any rate, within a period of three weeks from the date of production of a certified copy of this order. Till such orders are passed by the Waqf Board, the trial in W.O.S.No.10 of 2022 shall be deferred. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN