Nassarudheen T.E. and others v. P.S. Muhammed Ansalah and others (CRP 437/2008, W.O.A. 9/2006, Wakf Tribunal Ernakulam)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 CRP.No. 437 of 2008() --------------------WOA.9/2006 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER(S): (ADDITIONAL RESPONDENTS) --------------------------------------------- 1. T.E.NASSARUDHEEN, THENAMMACKAL, KANJIRAPPALLY, KANJIRAPPALLY P.O. KOTTAYAM. 2. V.M.ANSARI, FATHIMA GARDEN, - K.E.ROAD, KANJIRAPPALLY, KOTTAYAM. 3. M.S.BABU, MATTAPPALLY HOUSE, MUDICKAL PO., PERUMBAVOOR. 4. LATHEEF HUSSAIN, CHEMBARAPALLY HOUSE, NADACKAL P.O., ERATTUPETTA. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: (APPLICANTS & RESPONDENTS 1 & 2) ----------------------------------------------- 1. P.S.MUHAMMED ANSALAH, S/O.P.H.SAYED MOHAMMED, PAZHAYAPARAMBIL HOUSE, ERATTUPETTA, KOTTAYAM DISTRICT. 2. HAJI P.H.ABDUL KAREEM, - S/O.USAMYA KHAN, PAZHAYAPARAMBIL HOUSE, ERATTUPETTA, KOTTAYAM DISTRICT. 3. HAJI P.H.ABDUL LATHEEF, S/O.USAMYA KHAN, PAZHAYAPARAMBIL HOUSE, PATTIMATTOM, KOTTAYAM DISTRICT. : 2 : CRP 437/08 4. HAJI P.H.ABDUL SALAM, S/O.USAMYA KHAN, PAZHAYAPARAMBIL HOUSE, PATTIMATTOM, KOTTAYAM DISTRICT. 5. KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD, KALOOR, KOCHI-17. 6. DR.N.S.NOOR SATHAR, DE-FACTO MUTHAWALLY, NOORUL HUDA MADRASSA, ERATTUPETTA, KOTTAYAM DISTRICT. ADV. SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R5 SRI.V.K.MOHAMMED YOUSUF FOR R6 SRI.T.H.ABDUL AZEEZ FOR R1-4 SRI.V.K.PEERMOHAMED KHAN FOR R1-4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.7.2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **J.B. Koshy & P.N.Ravindran, JJ.** **======================== C.R.P. No.437 of 2008** **===================** ## **Dated this the 21[st] day of July, 2008.** ## **ORDER** ## **Ravindran,J.** The order passed by the Wakf Tribunal, Ernakulam in W.O.A. No.9 of 2006 is under challenge in this Civil Revision Petition filed under the proviso to sub-section (9) of Section 83 of the Wakf Act, 1995, hereinafter referred to as the “Act” for short. The brief facts of the case are as follows: 2. The Noorul Huda Madrassa, Erattupetta is a Wakf registered with the Kerala State Wakf Board, hereinafter referred as the “Board” for short, under the provisions of the Wakf Act, 1954. The Wakf owns besides other lands, 2 acres of land situated in Sy.No.276/1C/21 and 50 cents of land situated in Sy.No.276/1/2 of Koovappally Village in Kanjirappally Taluk, Kottayam District. The sixth respondent in this Civil Revision Petition who is the de-facto Muthawalli of the Wakf, moved the Board under Section 51 of the Act read with Rule 94 of the Kerala Wakf Rules, 1996, hereinafter referred to as the “Rules” for short, for permission to sell the said parcel of land. In the said application, the Muthawalli pointed out that the Wakf is running a Madrassa and a Masjid in a commercially important part of Erattupetta town, that the lands proposed to be sold do not yield any income, that if they are sold, CRP 437/08 -: 2 :- utilising the sale proceeds, a shopping complex can be put up in the land belonging to the Wakf in Erattupetta town and that if a shopping complex is put up it will augument the income of the Wakf which can be utilised for the day to-day functioning of the Madrassa and the Masjid. On receipt of the said application, the Board conducted a local inspection through Sri.N.M. Salim, Lower Division Clerk, who submitted a report dated 24.8.2005 to the effect that the value of 50 cents of land will be Rs.8,000/- per cent and the value of 2 acres of land will be Rs.15,000/per cent. The Board thereupon published Annexure A2 notice dated 15.10.2005 in the Kerala Gazette, inviting objections and suggestions. The notice was also published in the Madhyamam and Chandrika dailies dated 24.10.2005 as required under Rule 94(3) of the Rules. 3. On the notice being published, Sri.P.S.Muhammad Haleel submitted two objections; the first one on 27.10.2005 and the second one, Annexure A4 dated 28.10.2005 along with four others including respondents 1, 2 and 4 herein. The Board that met on 16.2.2006 considered the application submitted by the Muthawalli and decided to issue notice to the objectors calling upon them to appear on 25.3.2006. The objectors entered appearance and they were also heard. The pleadings and the materials on record disclose that the only objection raised by the objectors was that they should also be allowed to participate in the sale and that they had agreed that the wakf properties proposed to be sold, do not yield any income. Six members of the Board CRP 437/08 -: 3 :- including the Chairperson who were present in the meeting of the Board held on 5.4.2006 considered the application and by Annexure A1 order passed on 5.4.2006, granted permission to sell the properties. The Board also directed that the sale shall be conducted through auctioncum-tender system following the procedure prescribed in the Act and Rules. The Chief Executive Officer of the Board was also directed to send copies of the sale notification to the objectors. Thereupon, the Board issued and published Annexure A3 notification dated 23.6.2006 proposing to sell the properties on 8.8.2006. In the sale by tender-cumauction, 10 persons participated. The highest tender was by Sri.P.A.Raphy who had quoted a sum of Rs.8011/- per cent, for the lands put up for sale. In the auction, he raised his bid to Rs.9,800/- per cent. The petitioners in this Civil Revision Petition, who had raised their bid to Rs.10,700/- per cent, were the highest bidders in the auction and therefore, the auction sale of 2 acres of land was knocked down in their favour. Their bid was accepted subject to confirmation by the Board. 4. Sri.P.A.Raphy, who is none other than the son of the third respondent in this Civil Revision Petition, challenged the sale held on 8.8.2006 by filing W.P.(C) No.21398 of 2006 in this Court. The said Writ Petition was dismissed by judgment delivered on 29.8.2006. In the meeting of the Board held on 20.9.2006, in which 8 members of the Board were present, the sale was confirmed and thereupon Annexure A6 order dated 20.9.2006 was passed confirming the sale in favour of the CRP 437/08 -: 4 :- petitioners. Annexure A6 discloses that an extent of 2 acres of land was sold in favour of the petitioners for Rs.21,40,000/- and that they have remitted 1/3[rd] of the bid amount on the date of the auction. 5. Respondents 1 to 4 in this Civil Revision Petition who are the lineal descendants of the Wakif thereupon moved the Wakf Tribunal, Ernakulam in W.O.A. No.9 of 2006, joining the Board and the de-facto Muthawalli of the Wakf as the respondents. The petitioners in the Civil Revision Petition got themselves impleaded in the said application. By order passed on 26.12.2007, which is impugned in this Civil Revision Petition, the Wakf Tribunal, Ernakulam held that the sanction granted by the Board is not in accordance with Section 32(2)(j) of the Act. The sale was accordingly set aside. The successful bidders in the auction have filed this Civil Revision Petition challenging the order passed by the Wakf Tribunal, Ernakulam in W.O.A.No.9 of 2006. 6. We have heard Sri.T.M.Abdul Lateef, the learned counsel appearing for the petitioners, Sri.T.H.Abdul Azeez, the learned counsel appearing for respondents 1 to 4, Sri.M.M.Saidu Muhammed, the learned counsel appearing for the fifth respondent Board and Sri.V.K.Mohammed Youseff, the learned counsel appearing for the sixth respondent Muthawalli. The learned counsel for the petitioners contended that as the sale was held on 8.8.2006 after the Board accorded sanction by Annexure A1 order passed on 5.4.2006, the finding of the Wakf Tribunal that the sale was in violation of the Act and the Rules is not sustainable CRP 437/08 -: 5 :- in law. The learned counsel for the petitioners contended that the sale cannot be annulled on the ground that two-third of the members of the Board were not present and did not vote in favour of the transaction when the Board accorded sanction to sell the lands on 5.4.2006, in view of the subsequent confirmation of the sale by the Board in the meeting held on 20.9.2006 in which two-third of the members of the Board were present. Per contra, the learned counsel appearing for respondents 1 to 4 contended relying on the decision of the Apex Court in **Markaz Constructions** v. **Sugra Humayun Mirza Wakf and others** - A.I.R. 1996 S.C. 2763 and the decision of the Madras High Court in **A.M.S. Mohammed Housuf** v. **Tamil Nadu Wakf Board and others** - 1998 (1) L.W. 470 that a void transaction cannot be ratified and that in the absence of a valid order passed by the Board granting permission to sell the lands, the sale held on 8.8.2006 was liable to be set aside. 7. We have considered the submissions made at the Bar by the learned counsel appearing on either side. The Board admittedly consists of 11 members. It is not in dispute that when the Board met on 5.4.2006 to consider the application filed by the Muthawalli for permission to sell the wakf property, only 6 out of 11 members were present. When the Board again met on 20.9.2006, two-third of the members of the Board were admittedly present. Though respondents 1 to 4 herein had in W.O.A. No.9 of 2006 challenged the order passed by the Board on 5.4.2006 granting permission to sell the lands, the order CRP 437/08 -: 6 :- passed by the Board on 20.9.2006 confirming the sale was not challenged. The short question that arises in this Civil Revision Petition is whether the order passed by the Board on 5.4.2006 is in tune with the provisions contained in the Act and Rules and if the said decision was not in order, what is the effect of the order passed by the Board on 20.9.2008 confirming the sale in favour of the revision petitioners. 8. Section 32 (1) of the Act provides that subject to any rules that may be made under the Act, the general superintendence of all Wakfs in a State shall vest in the Board established for the State. Clause (j) of subsection (2) of Section 32 of the Act empowers the Board to sanction any transfer of immovable property of a Wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of the Act. The proviso to clause (j) of sub-section (2) of Section 32 of the Act states that no such sanction shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction. Section 51 of the Act states that notwithstanding anything contained in the wakf deed, any gift, sale, exchange or mortgage of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board. Rule 93 of the Rules stipulates that any transfer effected by a Mutawalli or any person, of immovable property owned by a Wakf, without the previous permission of the Board shall be invalid. Rule 94 of the Rules prescribes the procedure for disposal of applications for such permission. Sub-rule (1) of Rule 94 CRP 437/08 -: 7 :- of the Rules stipulates that an application for permission to alienate any immovable property owned by a Wakf shall be submitted by the Mutawalli of the Wakf to the Chief Executive Officer of the Board and that such application shall contain the particulars specified therein. Sub-rule (3) of Rule 94 of the Rules states that the Chief Executive Officer shall on receipt of an application from the Muthawalli or on his own initiative in the case of properties of any Wakf directly managed by the Board, verify the details in the application and present it before the Board together with his recommendations. Sub Rule (4) of Rule 94 of the Rules stipulates that the particulars relating to the proposed transaction together with a notice specifying the date on or after which the proposal will be further considered by the Board and inviting objections and suggestions with respect to the proposals, shall be published in the Gazette and in two local newspapers. Sub-rule (6) of Rule 94 of the Rules stipulates that the Board shall consider all objections and suggestions which may have been received by it before the date specified in the notice and if the Board considers that the proposed transaction is not for acquiring another property or contravenes any of the provisions of the Act or the wakf deed or is not intended for the improvement of the existing properties of the Wakf, or is not in any way necessary or beneficial to the Wakf, it shall reject the application. The Board is also empowered to decide whether any further enquiry is necessary to decide whether the sanction applied for can be granted or not. CRP 437/08 -: 8 :- 9. In the case on hand, it is not in dispute that only 6 out of the 11 of the members of the Board were present on 5.4.2006 when the Board accorded sanction for sale of the wakf property. After the sale was conducted, it was confirmed by the Board in the meeting held on 20.9.2006 in which two-third of the members of the Board were present. The Apex Court has in **Markaz Constructions** v. **Sugra Humayun Mirza Wakf and others** (supra), while considering Section 36 A of the Wakf Act, 1954, which corresponds to Section 51 of the Act, held that the said provision is intended to ensure that the property belonging to the Wakf is used in the best interests of the Wakf. In **A.M.S. Mohammed Housuf** v. **Tamil Nadu Wakf Board and others** (supra), a learned Single Judge of the Madras High Court considered Sections 36 A and 36 B of the Wakf Act, 1954 and Rules 5(2) and 5(3) of the Rules framed by the State of Tamil Nadu under the Wakf Act, 1954. The wakf property involved in the said case was sold without the prior sanction of the Tamil Nadu State Wakf Board. The Tamil Nadu State Wakf Board thereupon instituted a suit in the Sub Court, Tirunelveli for a declaration that the suit property belongs to the Wakf and for recovery of possession thereof. The trial court decreed the suit. On appeal by the defendants, the District Court dismissed the suit. The Tamil Nadu State Wakf Board thereupon filed a Second Appeal in the High Court of Madras. While the Second Appeal filed by the Tamil Nadu State Wakf Board was pending in the Madras High Court, the Tamil Nadu State Wakf Board met on 30.1.1988 and resolved CRP 437/08 -: 9 :- to ratify the alienation of the wakf property. The decision taken by the Tamil Nadu State Wakf Board was challenged in a Writ Petition. The Second Appeal which arose from the suit filed by the Tamil Nadu State Wakf Board challenging the sale and the Writ Petition filed challenging the decision taken by the Board ratifying the sale were heard and disposed of by a common judgment. The learned Single Judge of the Madras High Court held that as the alienation was without the prior permission of the Wakf Board, it is a void transaction and that a suit will lie to recover the property. The learned Single Judge of the Madras High Court proceeded to consider whether the resolution adopted by the Tamil Nadu State Wakf Board on 30.1.1988 ratifying the alienation was valid and whether the Wakf Board had the authority to ratify the alienation. After a survey of the case law on the point, the learned Single Judge of the Madras High Court held, relying on the decision of the Apex Court in **Mulamchand** v. **State of Madhya Pradesh** - 1968 (3) SCR 214 that there could be no ratification of a void transaction. It was held that the sale in question which was void in its inception in view of Section 36A of the Wakf Act, 1954, cannot be ratified. Referring to and relying on Section 15(2) (j) of the Wakf Act, 1954, which is similar to Section 31(2)(j) of the Act, it was held that sanction can be given only if at least twothirds of the members of the Board vote in favour of such transaction. It was held that as two-thirds of the members of the Board were not present when the void transaction was ratified, the decision taken by the CRP 437/08 -: 10 :- Board ratifying the sale is not in tune with the provisions contained in clause (j) of sub-section (2) of Section 15 of the Wakf Act, 1954. 10. The proviso to Section 32 (2) (j) of the Act states that no sanction to transfer immovable property of a Wakf shall be given “unless atleast two-thirds of the members of the Board vote in favour of such transaction”. Section 15(2) (j) of the Wakf Act, 1954 also contained a similar stipulation. Section 43(4) of the Wakf Act, 1954 which deals with removal of the Muthawalli, stipulated that no action shall be taken by the Board under sub-section (1) unless it has held an enquiry into the matter in the prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board. A Division Bench of this Court in **Kunhi Moideenkutty Musaliar** v. **Kerala Wakf Board and others** - 1977 K.L.T. 659, considered the scope of sub-section (4) of Section 43 of the Wakf Act, 1954 and held that as only eight out of eleven members were present when the Board decided to remove the Muthawalli, there was no valid quorum and therefore, the order removing the Muthawalli cannot be sustained. 11. The Madras High Court has in **A.M.S. Mohamed Housuf** v. **Tamil Nadu Wakf Board and others** - 1998-1-L.W. 470 noticed the distinction between ratification of an earlier transaction and retrospective sanction. After analysing the case law on the point, it was held that there is difference between retrospective sanction and ratification of an earlier transaction, that there cannot be a ratification of an earlier void CRP 437/08 -: 11 :- transaction and that the Board can only grant retrospective sanction. Clause (j) of sub-section (2) of Section 32 of the Act stipulates that no sanction to transfer immovable property of a wakf shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction. The stipulation is not that two thirds of the members of the Board, present at the meeting should vote in favour of the transaction but that two thirds of the members of the Board should vote in favour of the transaction. In the instant case, there is no dispute about the fact that when the Board met on 5.4.2006 to consider the application submitted by the sixth respondent for permission to sell the wakf property, only 6 out of 11 of the members of the Board were present. We are therefore persuaded to agree with the Wakf Tribunal that there was no valid prior sanction by the Board before the property was sold in the auction held on 8.8.2006. 12. The sale held on 8.8.2006 was confirmed by the Board that met on 20.9.2006. Annexure A6, the order issued by the Board on 20.9.2006 confirming the sale, indicates that the Board had only confirmed the sale in favour of the petitioner. Annexure A6 order does not disclose that the Board that met on 20.9.2006 granted retrospective sanction to sell the properties of the Wakf. Annexure A6 also does not indicate that there was ratification of the decision taken by the Board on 5.4.2006. A Division Bench of the Madras High Court has in **Abdul Kadir** v. **Kadiria Sabha** - A.I.R. 1953 Madras 143, which was rendered before the Wakf CRP 437/08 -: 12 :- Act, 1954 was enacted, held that alienation by a Muthawalli can be sanctioned retrospectively by the Kazi or by the court. A learned Single Judge of the Madras High Court has in **Ganapathy Naicker and another** v. **Special Officer for Wakfs** - 1974 (1) MLJ 239 held that the mortgagee who obtained a mortgage without the prior sanction of the Wakf Board, can move the Board to grant sanction and that it is for the Board to consider whether sanction should be granted or refused, having regard to the facts and circumstances of the case. 13. Applying the principles laid down in the aforesaid decisions to the case on hand, we are persuaded to agree with the view taken by the Wakf Tribunal that there was neither subsequent ratification nor retrospective sanction when the Board that met on 20.9.2006 confirmed the sale held on 8.8.2006. The Board did not address itself to the question whether sanction given on 5.4.2006 was valid and in order. It did not bestow attention to the fact that there was no proper quorum and two-third of the members of the Board did not vote in favour of the transaction when Annexure A1 order was passed on 5.4.2006 granting sanction to sell the wakf property. It cannot therefore be said that the Board has given retrospective sanction to the sale held on 8.8.2006. As two-third of the members of the Board were not present and as two-third of the members of the Board did not vote in favour of the transaction, the sanction given on 5.4.2006, was not a valid sanction. We therefore agree with the Wakf Tribunal that the confirmation of the sale held on CRP 437/08 -: 13 :- 8.8.2006 by the Board that met on 20.9.2006 is also of no effect. As two-thirds of the members of the Board were not present, the sanction given on 5.4.2006 was not a valid sanction. Therefore, it has to be held that the sale held on 8.8.2006 was without the prior sanction of the Board. In view of Section 51 of the Act, as there was no valid prior sanction, the sale of the wakf property held on 8.8.2006 was void. That defect does not stand cured by the mere fact that the Board which met on 20.9.2006 confirmed the sale held on 8.8.2006. 14. The view that we have taken should necessarily entail a dismissal of this Civil Revision Petition. However, having regard to the facts and circumstances of the case, especially the nature of the objections raised by the objectors to the application for permission to sell the wakf property and also having regard to the fact that the revision petitioners have remitted one-third of the bid amount on the date of the sale, namely, 8.8.2006, we are inclined to remit the matter to the Board to decide whether retrospective sanction can be given to the sale held on 8.8.2006. In that view of the matter, we direct the Board to reconsider the application submitted by the sixth respondent and consider whether having regard to the facts and circumstances of the case, retrospective sanction to sell the Wakf property can be granted. The Board shall reconsider the application after issuing notice to the parties to this Civil Revision Petition and take a decision thereon within three months from the date of receipt of a copy of this order. It is clarified that fresh notice CRP 437/08 -: 14 :- need not be issued and published either in the Official Gazette or in the news paper dailies. If two-third of the members of the Board vote in favour of granting retrospective sanction, the sale held on 8.8.2006 shall stand confirmed and the petitioners will be entitled to all consequential benefits. If on the other hand, the Board decides not to grant retrospective sanction, the sale held on 8.8.2006 shall stand cancelled. The Board shall thereupon refund to the petitioners the moneys deposited by them without further delay. It is further clarified that the Board will also be free in such an eventuality, to consider the application submitted by the sixth respondent Muthawalli for permission to sell the wakf property afresh, in accordance with law. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess CRP 437/08 -: 15 :-