High Court of KeralaDivision Bench2022-07-11Disposed of with directions to cure defects wit...

OP (WAKF) NO. 15 OF 2022

Case / Petition Number:OP (WAKF) NO. 15 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. V. Bhatti
Basant Balaji
Judgment Date: 2022-07-11
Court Decision / Holding: OP (WAKF) NO. 15 OF 2022 disposed of with observations that the petition could be pursued before the Wakf Tribunal after curing defects within three weeks. The court directed that the plaint be represented before the Wakf Tribunal and reiterated the settled position of law regarding maintainability under Section 83 of the Wakf Act; the petition was disposed of accordingly.
Final Disposition: Disposed of with directions to cure defects within three weeks and approach Wakf Tribunal; maintainability under Wakf Act Section 83 to be considered by the Wakf Tribunal after defect-cure.

Parties to the Case

Appellants / Petitioners

SIYAMKANDAM MASJIDU SUNNIYEEN COMMITTEE
KOLLOLY MOIDEENKUTTY

Respondents

KUNDERI SAINABA
KUNDERI MOHAMMEDALI
KUNDERI ABUBACKER
RAMLA
SAHAD
UMAIRA
KUNDERI ABDUSSALAM
KUNDERI FATHIMA
KUNDERI AYISHABEEVI
KUNDERI SEENATH
ANEESA
KERALA STATE WAKF BOARD

Legal Representation & Advocates

Counsels for Petitioners

• M. Krishnakumar
• Safwan K.

Counsels for Respondents

• K.M. Sathyanatha Menon
• K.M.

Case Synopsis & Summary

This is an Original Petition (Wakf) before the Kerala High Court at Ernakulam, arising from OS 40/2020 before the Wakf Tribunal, Kozhikode. The petitioners, Siyamkandam Masjid Sunniyeen Committee and Kollolly Moideenkutty, sought a possession decree in respect of Wakf properties B, C and D, and a declaration that A schedule property belongs to their committee, while contending that the purchase certificates held by the respondents were null and void. The Wakf Tribunal had earlier held the suit not maintainable under the Wakf Act and returned the plaint under Order VII Rule 10 CPC. The petition before the High Court challenged those orders, arguing that the Wakf Tribunal has jurisdiction to adjudicate Wakf disputes and that the matter falls within the Tribunal’s remit under the Wakf Act. In response, the respondents contended the prayers were unsustainable and urged dismissal, noting that the Wakf Board enquiry and proceedings suggested no connection between the property and Wakf. The court relied on Rashid Wali Beg v. Farid Pindari to reaffirm the Wakf Tribunal’s jurisdiction and held that, under the settled law, maintainability under Section 83 of the Wakf Act can be pursued before the Wakf Tribunal after curing defects. The petition was disposed of with directions to cure defects within three weeks and proceed before the Wakf Tribunal, clarifying that the remedy lies in procedural cure rather than dismissal.

Provisions of Law Cited

Wakf Act Section 85Wakf Act Section 6(1)Wakf Act Section 7(1)Wakf Act Section 83Code of Civil Procedure Order VII Rule 10Code of Civil Procedure Order 43 Rule 1(a)Constitution of India Article 227

Legal Doctrines & Maxims

Wakf Tribunal has jurisdiction to adjudicate disputes relating to Wakf or Wakf property under Wakf Act Section 85, including matters specified in Sections 6(1) and 7(1).
Maintainability of petitions before the Wakf Tribunal under Section 83 of the Wakf Act and the remedy to cure procedural defects under Order VII Rule 10 CPC.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants argued that the Wakf Tribunal has inherent jurisdiction to adjudicate all disputes relating to Wakf and its property, and that the suit in OS 40/2020 was wrongly treated as not maintainable. They urged that the Tribunal’s maintainability under the Wakf Act (particularly Section 83) allows them to plead before the Wakf Tribunal after curing procedural defects, and that Ext. P2 and Ext. P3 orders should be set aside. Reliance was placed on Rashid Wali Beg v. Farid Pindari to illustrate that the Tribunal can adjudicate Wakf-related disputes and that the plaint could be accepted upon compliance with defect-corrections within a short window. They emphasized that remedy under Order 43 Rule 1(a) and Article 227 of the Constitution is not a substitute for pursuing the Wakf Tribunal’s jurisdiction and urged the High Court to direct acceptance of the plaint before the Wakf Tribunal.

Contentions of Respondents

The respondents argued that the prayers were not sustainable and that the Wakf Tribunal can decide the issues only if the matter relates to Wakf property; they pointed to the Wakf Board enquiry finding no connection of the property with Wakf, and asserted that the petition is an abuse or harassment. They maintained that the proper recourse would be an appeal under Order 43 Rule 1(a) rather than bypassing it via Article 227, and that the tribunal’s orders were correctly passed, justifying the dismissal or non-acceptance of the plaint pending cure of defects.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rashid Wali Beg v. Farid Pindari	2021(6) KLT 482 (SC)	Positive	The Apex Court’s decision in Rashid Wali Beg v. Farid Pindari is cited as affirming the Wakf Tribunal’s jurisdiction to adjudicate disputes related to Wakf property, including questions under Sections 6(1) and 7(1), thus supporting maintainability before the Wakf Tribunal.

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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 MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 ``` ``` OP (WAKF) NO. 15 OF 2022 ``` ## **`OS 40/2020 OF WAKF TRIBUNAL, KOZHIKODE`** ## **`PETITIONER/S:`** ``` 1SIYAMKANDAM MASJIDU SUNNIYEEN COMMITTEE AGED 66 YEARS SIYAMKANDAM PO-PULIKKAL, MALAPURAM DISTRICT REPRESENTED BY ITS SECRETARY KOLLOLY MOIDEENKUTTY, S/O MOYEENKUTTY AGED 66 YEARS, BAITHUL MASHAHIK, PULIKKAL CHERUKAVE AMSOM, CHEVAYUR DESOM, KONDOTTY TALUK, MALAPURAM DISTRICT, PIN - 673637 2KOLLOLY MOIDEENKUTTY AGED 66 YEARS S/O MOYEENKUTTY BAITHUL MASHAHIK, PULIKKAL CHERUKAVE AMSOM, CHEVAYUR DESOM, KONDOTTY TALUK, MALAPURAM DISTRICT. PIN - 673637 BY ADVS. M.KRISHNAKUMAR SAFWAN K.(K/1735/2021) ``` ## **`RESPONDENT/S:`** ``` 1KUNDERI SAINABA AGED 54 YEARS D/O ALIKUTTY, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT PIN - 673637 2KUNDERI MOHAMMEDALI AGED 67 YEARS S/O ALIKUTTY, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT PIN - 673637 ``` ## **`OP (WAKF) NO. 15 OF 2022`** -2- ``` 3KUNDERI ABUBACKER AGED 64 YEARS S/O ALIKUTTY, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT, PIN - 673637 4RAMLA AGED 45 YEARS W/O UMMER, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT PIN - 673637 5SAHAD AGED 25 YEARS S/O UMMER, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT PIN - 673637 6UMAIRA AGED 23 YEARS D/O UMMER, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT, PIN - 673637 7KUNDERI ABDUSSALAM AGED 56 YEARS S/O ALIKUTTY, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT , PIN - 673637 8KUNDERI FATHIMA, AGED 62 YEARS D/O ALIKUTTY, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO,CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT, PIN - 673637 9KUNDERI AYISHABEEVI, AGED 58 YEARS D/O ALIKUTTY, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT, PIN - 673637 10KUNDERI SEENATH,AGED 47 YEARS D/O ALIKUTTY, MADATHIL HOUSE, CHERUKAVE, PUKIKKAL PO, CHERUKAVE AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT, PIN - 673637 ``` ``` OP (WAKF) NO. 15 OF 2022 ``` -3- ``` 11ANEESA,AGED 57 YEARS W/O MOOSAKUTTY, THAZHETHODI HOUSE, CHEVAYUR ROAD, PULIKKAL PO, CHERUKAVU AMSOM, CHEVAYUR DESOM MALAPURAM DISTRICT, PIN - 673637 12KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER VIP ROAD, KALOOR, KOCHI - 682017 BY ADVS. K.M SATHYANATHA MENON K.M ``` ## **`OTHER PRESENT:`** ``` SC JAMSHEED HAFIZ ``` ``` THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP (WAKF) NO. 15 OF 2022`** -4- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **`OP (WAKF) NO. 15 OF 2022`** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 11[th] day of July 2022) ## Basant Balaji J., The petitioners are the plaintiffs in O.S. No.40 of 2020 on the files of the Wakf Tribunal, Kozhikode and the respondents are the defendants therein. 2. The suit was filed for a direction to the respondents to hand over possession of B, C and D schedule properties to plaintiff committee, a declaration that the A schedule property belongs to the petitioner committee and that the respondent Nos.1 to 11 have not derived any manner of the right, title or legal possession over the A schedule property by virtue of the purchase certificates, as the said certificates are null and void. ``` OP (WAKF) NO. 15 OF 2022 ``` -5- 3. Before the Wakf Tribunal, the question of maintainability came up for consideration and considering the Wakf Act and Rules, the Tribunal held that the suit is not maintainable. Thereafter, the Wakf Tribunal, as per order dated 26.10.2021, returned the plaint under Order VII Rule 10 CPC. 4. A counter affidavit was filed by the 11[th] respondent in which it is contended that the prayers sought for in the Original Petition are not sustainable in law and facts. It was also submitted that a complaint was filed by the petitioners, which culminated in an enquiry proceedings before the Wakf Board as proceedings No.A10-4323/16 dated 14.10.2019. A Show cause notice dated 4.10.2017 was issued to respondent Nos.1 and 2 and others. In the enquiry proceedings, it was contended that the property in question has no connection with the Wakf property by proceedings dated 14.10.2019 closed the file. 5. Ext.P1 suit was filed by the petitioners with ulterior motive to harass the respondents. When the plaint is returned under Order VII Rule 10 CPC for presentation ## **`OP (WAKF) NO. 15 OF 2022`** -6- before the Forum, the remedy available is to prefer an appeal against petitioner Nos.1 and 3 which are available under Order 43 Rule 1(a) and hence, the petitioners cannot bye pass it and invoke jurisdiction of this court under Article 227 of the Constitution of India. Hence, prayed for dismissal of the Original Petition. 6. Heard. 7. It was contended that the dispute in the present case relates to a Wakf and the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. Ext.P2 was passed returning the plaint as the suit is not maintainable under Order VII Rule 10 CPC and posted for steps on 10.11.2021. On 10.11.2021, since no steps were taken the plaint was returned as per Ext.P3. Though, Ext.P4 petition was filed before the Tribunal with a prayer to receive the plaint since as per the decision of the honourable Apex Court in **Rashid Wali Beg v. Farid Pindari [2021(6) KLT 482 (SC)],** the Registry of the Tribunal refused to accept the same and it was returned to the petitioners. Hence, this O.P. is filed to set aside ## **`OP (WAKF) NO. 15 OF 2022`** -7- Ext.Nos.P2 and P3 orders and to declare that Ext.P1 is maintainable before the Wakf Tribunal. 8. The honourable Apex Court in **Rashid Wali** (supra) held that the words “any dispute, question or other matter relating to any waqf or waqf property”, used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a waqf or waqf property, including the two questions mentioned in Sections 6(1) and 7(1). The words in the second limb of Section 85 namely, “other matter which is required by or under this Act to be determined by a Tribunal”, seek to cover matters which have no relevance to the two questions covered by Section 6(1) and 7(1). Hence, he prayed that the order passed by the Wakf Tribunal is bad in law and the same has to be set aside and direction to be issued to the Tribunal to accept the plaint. 9. On going through the impugned orders, it is seen that the Tribunal has only returned the plaint for noncompliance of Order VII Rule 10 CPC. In view of the ## **`OP (WAKF) NO. 15 OF 2022`** -8- settled position of law regarding the maintainability of petition under Section 83 of the Wakf Act before the Wakf Tribunal, we are of the opinion that the petitioner can represent the plaint before the Wakf Tribunal after curing the defects, if any, within a period of three weeks from today. O.P.(Wakf) is disposed of with the above observations. ## **sd** **S.V.BHATTI, JUDGE** **sd** **BASANT BALAJI, JUDGE** _dl/_ ``` OP (WAKF) NO. 15 OF 2022 ``` -9- ## **`APPENDIX OF OP (WAKF) 15/2022`** ``` PETITIONER EXHIBITS Exhibit P1A TRUE COPY OF THE PLAINT IN OS 40/2020 ON THE FILE OF THE WAKF TRIBUNAL KOZHIKODE Exhibit P2A TRUE COPY OF THE ORDER DATED 26-10- 2021 PASSED BY THE WAKF TRIBUNAL KOZHIKODE IN OS 40/2020 Exhibit P3A TRUE COPY OF THE ORDER DATED 10-11- 2021 PASSED BY THE WAKF TRIBUNAL KOZHIKODE IN OS 40/2020 Exhibit P4A TRUE COPY OF THE APPLICATION FILED ON 19-04-2022 BY THE PETITIONERS BEFORE THE WAKF TRIBUNAL KOZHIKODE ``` ``` RESPONDENT EXHIBITS Exhibit R11(b)Translation of Exhibit R11(a) Exhibit R11(a)A true copy of the proceedings no: A10- 4323/16 dated 14.10.2019 of the Kerala State Wakf Board Chief Executive Officer. ```