O.P.(Wakf) No.14 of 2024

1 O.P.(Wakf)No.14 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 ``` ``` O.P.(WAKF) NO.14 OF 2024 ``` ``` ORDER DATED 09.04.2020 IN I.A.NO.296 OF 2024 IN O.S. NO.47 ``` ``` OF 2020 OF WAKF TRIBUNAL, KOZHIKODE ``` ## **`PETITIONER/PLAINTIFF:`** ``` VELLARANGOTT K. AMMAD, AGED 82 YEARS S/O. UMMAR, KARAYAD, ARIKULAM, KOYILANDY, KOZHIKODE DT., PIN - 673620 ``` ``` BY ADVS. M.MUHAMMED SHAFI T.RASINI ADHEELA NOWRIN ``` ## **`RESPONDENTS/DEFENDANTS:`** ``` 1 KAVUMTHARA KAVIL MANDANKAV PUTHANPALLI PARIPALANA COMMITTEE, KAVUMTHARA, KAVIL P.O, KOZHIKODE DT. REP. BY SECRETARY, IMBICHI MAMMAD MASTER, AGED 70 YEARS, S/O. KOTTIL KOYOTTI, PIN - 673614 ``` ``` 2 IMBICHI MAMMAD MASTER, AGED 70 YEARS S/O. KOTTIL KOYOTTI, SECRETARY, KAVUMTHARA KAVIL MANDANKAV PUTHANPALLI PARIPALANA COMMITTEE, KAVIL P.O, KOZHIKODE DT., PIN - 673614 ``` ``` 3 THE KERALA STATE WAKF BOARD, VIP ROAD, ERNAKULAM, REP. BY ITS CHIEF EXECUTIVE OFFICER., PIN - 682017 ``` 2 O.P.(Wakf)No.14 of 2024 ``` 4 N.K BEERAN HAJI, AGED 65 YEARS S/O. AMMAD HAJI, THAZHETHIDATHIL HOUSE, KAVIL P.O, KOYILADY, PRESIDENT, 1. KAVUMTHARA KAVIL MANDANKAV PUTHANPALLI PARIPALANA COMMITTEE, KAVUMTHARA, KAVIL P.O, KOZHIKODE DT., PIN - 673614 ``` ``` 5 A.K. IMBICHI MOIDEEN, AGED 72 YEARS S/O. BAVUTTY, EDATHKANDI HOUSE, KAVIL P.O, NADUVANNUR, GENERAL SECRETARY, KAVUMTHARA KAVIL PUTHANPALLI PARIPALANA COMMITTEE, KAVUMTHARA, KAVIL P.O, KOZHIKODE DT., PIN - 673614 ``` ``` BY ADVS. MUDASSER AHAMED MUNEER AHMED JAYKAR.K.S. ``` ``` OTHER PRESENT: ``` ## **`SC WAKF BOARD- SRI. JAMSHEED HAFIZ`** ``` THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 O.P.(Wakf)No.14 of 2024 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed O.S.No.47 of 2020 before the Waqf Tribunal, seeking a declaration that the petitioner and his successors alone have the right to act as Muthavalli of the 1[st] respondent Waqf, namely, Puthanpalli Paripalana Committee as provided in Document No.2583/1928 of the Sub Registrar Office, Naduvannur. He has also sought for a permanent prohibitory injunction restraining respondents 1 and 2, namely, Kavumthara Kavil Mandankav Puthanpalli Paripalana Committee and Imbichi Mammad Master, its Secretary and their men from interfering with the peaceful management of the mosque by the petitioner or his successors as per the Waqf Deed and from trespassing into the plaint schedule property, interfering with peaceful possession and management of the plaint schedule Waqf by the petitioner as its Muthavalli. In that suit, respondents 1 to 3 herein were originally made as defendants 1 to 3. Later, respondents 4 and 5 were also impleaded as additional defendants. A copy of the plaint in W.O.S.No.47 of 2020 is placed on record as Ext.P1. The document marked as Ext.P2 is the written statement filed by the 3[rd] defendant and Ext.P3 is that filed by defendants 4 and 5. 4 O.P.(Wakf)No.14 of 2024 2. The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to quash Ext.P9 order dated 09.04.2024 of the Waqf Tribunal in I.A.No.296 of 2024 in W.O.S.No.47 of 2020, whereby that application filed for remitting Ext.P5 report of the Advocate Commissioner dated 25.08.2023 and for submitting a fresh plan with survey numbers and detailed measurements of the plaint schedule property, stands rejected. A copy of that interlocutory application is placed on record as Ext.P8. 3. On 03.05.2024, when this original petition came up for admission, notice by special messenger was ordered to respondents 1, 2, 4 and 5. The learned Standing Counsel for the State Waqf Board entered appearance for the 3[rd] respondent. 4. On 07.05.2024, this Court granted an interim order staying all further proceedings in O.S.No.47 of 2020 on the file of the Wakf Tribunal, Kozhikode, for a period of two months. 5. Heard the learned counsel for the petitioner, the learned Standing Counsel for State Waqf Board for the 3[rd] respondent and the learned counsel for respondents 4 and 5. Despite service of notice, none appears for respondents 1 and 2. 6. During the course of arguments, the learned counsel for 5 ## O.P.(Wakf)No.14 of 2024 the petitioner and also the learned counsel for respondents 4 and 5 addressed arguments touching the merits of the issue, which is now pending before the Waqf Tribunal. The learned counsel for respondents 4 and 5 would point out that the said respondents have already raised a contention regarding the maintainability of W.O.S.No.47 of 2020 before the Waqf Tribunal. 7. We do not propose to consider those contentions in this proceedings, since the sole issue that requires consideration is whether any interference is warranted on Ext.P9 order dated 09.04.2024 of the Waqf Tribunal in I.A.No.296 of 2024 in W.O.S.No.47 of 2020, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 8. I.A.No.296 of 2024 in W.O.S.No.47 of 2020 was one filed by the petitioner herein-plaintiff, invoking the provisions under Order XXVI Rule 10 and 7 and Section 151 of the Code for remitting Ext.P5 report dated 25.08.2023 of the Advocate Commissioner and for submitting a fresh plan with survey numbers and detailed measurement of the plaint schedule property. The said application now stands rejected by Ext.P9 order, which reads thus; “This petition filed under Order 26 Rule 10 and 7 and Section 151 of Code of Civil Procedure to remit the commission report 6 ## O.P.(Wakf)No.14 of 2024 and for filing fresh detailed report. 2. No counter filed. The dispute is mainly with respect to mutawalliship. There is no need to identify plaint schedule properties. Hence the remission of commission report is not required. Hence dismissed. No costs.” 9. Chapter XIV of Kerala State Waqf Rules, 2019 deals with the proceedings before the Tribunal. As per Rule 114, the provisions of the Code of the Civil Procedure, Civil Rules of Practice and the Criminal Procedure Code shall apply to proceedings before the Tribunal. As per Rule 129, the judgments or orders of the Tribunal shall contain a concise statement of the facts of the case, the points for determination, the decision thereon and the reason for such decision. Every order of the Tribunal shall be in writing and shall be signed with date and its seal. ## 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. 7 O.P.(Wakf)No.14 of 2024 ## 11. In **Commissioner of Police, Bombay v. Gordhandas** **Bhanji [AIR 1952 SC 16]** the Apex Court has held that, public orders publicly made, in 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 actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court has reiterated in **Mohinder Singh Gill v. Chief Election Commissioner [(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, gets validated by additional grounds later brought out. 12. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing** 8 O.P.(Wakf)No.14 of 2024 **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. 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, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi - judicial performance. 13. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same 9 O.P.(Wakf)No.14 of 2024 time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 14. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that Ext.P9 order dated 09.04.2024 of the Waqf Tribunal, Kozhikode in I.A.No.296 of 2024 in W.O.S.No.47 of 2020, which is a cryptic order passed without adverting to the rival contentions by the parties, cannot be sustained in law. Such an order, which does not state reasons, which are the live things between the mind of the decision taker to the controversy in question and the decision or the conclusion arrived at, cannot be sustained in law, since it amounts to denial of justice. On that sole ground, Ext.P9 order is liable to be set aside. In such circumstances, this original petition is disposed of by setting aside Ext.P9 order dated 09.04.2024 of the Waqf Tribunal, Kozhikode in I.A.No.296 of 2024 in W.O.S.No.47 of 2020 on the above ground and by directing the Tribunal to pass fresh orders in 10 ## O.P.(Wakf)No.14 of 2024 that interlocutory application, after adverting to the legal and factual contentions raised by both sides, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **HARISANKAR V. MENON, JUDGE** MIN 11 O.P.(Wakf)No.14 of 2024 ## **`APPENDIX OF OP (WAKF) 14/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO. 47 OF 2020 ``` ``` Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT ``` ``` Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS NO. 4 AND 5 ``` ``` Exhibit P4 TRUE COPY OF THE APPLICATION IN IA NO. 517 OF 2023 IN OS NO. 47 OF 2020 ``` ``` Exhibit P5 TRUE COPY OF THE REPORT AND SKETCH DATED 25-08-2023 SUBMITTED BY THE ADVOCATE COMMISSIONER Exhibit P6 TRUE COPY OF THE PETITION IN IA NO. 724 OF 2023 IN OS NO. 47 OF 2020 Exhibit P7 TRUE COPY OF THE REPORT DATED 20-02-2024 ALONG WITH THE PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER Exhibit P8 TRUE COPY OF THE PETITION IN IA NO. 296 OF 2024 IN OS NO. 47 OF 2020 Exhibit P9 CERTIFIED COPY OF THE ORDER IN IA NO. 296 OF 2024 IN OS NO. 47 OF 2020 ```