O.P.(Wakf) No.2 of 2014 (R) in O.S.No.8 of 2014 (Petitioners: N.Usman Madani and Imdadul Islam Sangam Pathappiriyam) v. A.P Abdul Khader Maulavi, A. Ahammedkutty, K. Seethi, Chief Executive Officer, Kerala Wakf Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936 OP (WAKF).No. 2 of 2014 (R) ---------------------------O.S.NO.8/2014 & I.A.NO.39/2014 IN O.S.NO.8/2014 PENDING BEFORE THE WAKF TRIBUNAL, KOZHIKODE PETITIONER(S): ---------------------- 1. N.USMAN MADANI, AGED 60 YEARS S/O.ITHWALU HAJI, P.O.PATHAPPIRIYAM, EDAVANNA PATHAPIRIYAM, ERNAD, MALAPPURAM DISTRICT PIN-676 123. 2. IMDADUL ISLAM SANGAM PATHAPPIRIYAM, REG.NO.37/1968, P.O.PATHAPPIRIYAM PIN-676 123 REPRESENTED BY ITS SECRETARY N.USMAN MADANI S/O.ITHWALU HAJI, P.O.PATHAPPIRIYAM, EDAVANNA PATHAPIRIYAM, ERNAD, MALAPPURAM DISTRICT, PIN-676 123. BY ADV. SRI.K.M.SATHYANATHA MENON ## RESPONDENT(S): ------------------------ 1. A.P ABDUL KHADER MAULAVI S/O.SAINUDEEN, ADATHI PARAMBIL HOUSE, PERUVILKUNDU PRESIDENT, IMDADUL ISLAM SANGAM, PATHAPPIRIYAM REG.NO.37/1968, P.O.PATHAPPIRIYAM, PIN-676 123. 2. A.AHAMMEDKUTTY S/O.KUNHIMUHAMMED HAJI, ARANJIKKAL HOUSE P.O.PATHAPPIRIYAM, EDAVANNA AMSOM, PATHAPPIRIYAM DESOM ERNAD TALUK, MALAPPURAM DISTRICT, PIN-676 123. 3. K.SEETHI S/O.UNNI SEETHI, KODOLOTHUM THODIKA, EZHUKALARI EDAVANNA AMSOM, PATHAPPIRIYAM DESOM, ERNAD TALUK MALAPPURAM DISTRICT, PIN-676 123. 4. CHIEF EXECUTIVE OFFICER KERALA WAKF BOARD, V.I.P.ROAD, KALOOR ERNAKULAM, KOCHI-682 017. R1 & 2 BY ADV. SRI.P.B.KRISHNAN R3 BY ADV. SRI.P.M.NEELAKANDAN R3 BY ADV. SRI.P.B.SUBRAMANYAN R3 BY ADV. SRI.SABU GEORGE R BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 09-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (WAKF).No. 2 of 2014 (R) ------------------------------------ ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- - EXT.P1- TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.562/2013 OF EDAVANNA POLICE STATION. - EXT.P2- TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.113/2014 OF MANJERI POLICE STATION. - EXT.P3-TRUE COPY OF THE PLAINT IN O.SNO.8 OF 2014 FILED BY THE PETITIONERS BEFORE THE WAKF TRIBUNAL, KOZHIKODE DATED 10.1.2014. - EXT.P4- TRUE COPY OF I.A.NO.39 OF 2014 FILED BY THE PETITIONERS IN O.S.NO.8 OF 2014 BEFORE THE WAKF TRIBUNAL, KOZHIKODE DATED 10.1.2014. - EXT.P5: TRUE COPY OF THE NOTICE DATED 26.11.2013 ISSUED BY THE GENERAL SECRETARY OF THE KERALA NADUVATHUL MUJAHIDEEN TO THE FIRST PETITIONER. - EXT.P6: TRUE COPY OF THE REPLY LETTER DATED 9.12.2013 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECRETARY, KERALA NADUVATHUL MUJAHIDEEN. - EXT.P7: COPY OF THE MEETING NOTICE OF THE SECOND PETITIONER SANGAM DATED 12.12.2013. - EXT.P8: TRUE COPY OF THE COMPLAINT DATED 16.12.2013 SUBMITTED BY THE FIRST PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, EDAVANNA. - EXT.P8(a) : TRUE COPY OF THE RECEIPT DATED 16.12.2013 ISSUED FROM THE OFFICE OF THE SUB INSPECTOR OF POLICE, EDAVANNA. EXT.P9: TRUE COPY OF THE FIR NO.87/2014 OF EDAVANNA POLICE STATION. - EXT.P10: COPY OF THE NOTICE DATED 25.1.2014 ISSUED FROM THE KERALA STATE WAKF BOARD DIVISIONAL OFFICE, MANJERI TO THE FIRST PETITIONER. - EXT.P11: TRUE COPY OF THE RECEIPT OF PAYMENT ISSUED BY THE KERALA STATE WAKF BOARD DIVISIONAL OFFICE, MANJERI DATED 19.2.2014. RESPONDENT(S)' EXHIBITS : --------------------------------------- EXT.R3(a) : TRUE COPY OF THE NOTICE DATED 12.9.2013 ISSUED BY THE PETITIONER. - EXT.R3(b) : TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER DATED 11.10.2013. EXT.R3(c) : TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER DATED 25.10.2013. OP (WAKF).No. 2 of 2014 (R) ------------------------------------ EXT.R3(d) : COPY OF THE NOTICE ISSUED BY THE PETITIONER DATED 5.9.2013 5.9.2013. //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.** -------------------------------------- O.P.(Wakf) No.2 of 2014 -------------------------------------Dated this the 9[th] day of July, 2014 ## **K.T.Sankaran, J.** ## _**JUDGMENT**_ The petitioners filed O.S.No.8 of 2014 before the Wakf Tribunal, Kozhikode. They filed I.A.No.39 of 2014 for temporary injunction. This Original Petition is filed complaining that the Wakf Tribunal did not pass any interim order since the Tribunal is not constituted as per the amended provisions of Section 83(4) of the Wakf Act, 1995. 2. A Division Bench of this Court in O.P.(Wakf) No.23 of 2014 held as follows : 8. We now proceed to notice as to what is O.P.(Wakf) No.2/2014 2 happening as of now, as regards the Wakf Tribunals. In 2012, a question arose as to whether an officer who is put in charge of a Tribunal by the High Court or who is covered by general transfer orders issued by the High Court and posted to man the Tribunal has to be further energised by a notification of the State Government to act, function and discharge the functions of the Tribunal. The situation was one of stalemate owing to the delay in issuing government notifications. The constitutional and statutory situation therefore became focal issues and it was held that government notifications were not necessary in such situations. It was therefore declared by this Court that following general transfers and other transfer orders of judicial officers of the subordinate judiciary from time to time, the person manning any Wakf Tribunal, on transfer, will hand over charge as may be ordered by the High Court in its proceedings on the administrative side and such handing over charge is sufficient to clothe the person put in charge of the Tribunal to discharge all functions and powers of the Tribunal in terms of the provisions of the Act. See – Abdulla Shahul Hameed v. State of Kerala [2012 (3) KLT 324]. 9.The amending Act has changed only the composition of the Tribunal as provided in subsection 4 of section 83 of the parent Act. The amendment made to sub-section 1 of section 83 only enlarges the subject matter jurisdiction. For all other purposes, it continues to be what it was before the amendment. Though the amending O.P.(Wakf) No.2/2014 3 Act has enlarged the subject matter jurisdiction of the Tribunal and has modified the composition of the Tribunal by the amendment to sub-section 4 of section 83, there is no transitory or other provision in the amending Act which deals with matters pending before the Tribunal as it stands under the parent Act, until the composition of the Tribunal gets modified, through statutory notifications, in terms of the amended provisions. This is clear legislative material to infer that the constitution the Tribunal by notifications issued under the parent Act shall continue to be in vigour notwithstanding the amendments, and, modifications if any to the constitution of the Tribunal in terms of the amendments to the parent Act by the amending Act, would become operational only if and when such compositions are notified in conformity with the amended section 83(4). As already noted, this can be done only after the rules are prescribed and made in accordance with law, by the State Government and infrastructure is provided, without tinkering with the existing judicial establishment, and, to the satisfaction of the High Court, since any modification of the constitution in terms of the amended section 83 (4) would call for the deputation of a judicial officer from the State Judicial Service. Therefore, any Tribunal already notified under the provisions of the parent Act would continue to stand with authority, and, with enlarged subject matter jurisdiction in terms of the amendment to sub-section 1 of Section 83, however that, the composition of the Tribunal cannot be modified except by a notification in O.P.(Wakf) No.2/2014 4 terms of the amended sub-section 4 of that section. 10.No citizen has a right to ask for a particular composition of Tribunal; the law being well settled that one has only a vested right of action but no vested right to a forum; and, even if in a particular case there is a right to a vested forum, that does not extend to any particular composition of the forum. See – New India Insurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840], Ittyavira Mathai v. Varkey Varkey [AIR 1964 SC 907] and Mary v.Pappu [2001 (1) KLT 12]. 11.It appears to be appropriate that we indicate now that we can foresee some practical problems that may arise due to the lack of any provision following the amendment to section 83(4), to take care of actions taken by the Tribunal in the absence or vacancy of members. It is a normal legislative tool to clothe situations of vacancy of members by a protective legislative covenant. As part of judiciary, we would abide by our limitations and would not venture to lay down or issue any direction in that regard since that is a matter in the legislative domain. 12.The conclusion of the aforesaid discussion is that all Tribunals exercising functions under the Act before its amendment will continue to do so, taking it that their subject matter jurisdiction has been enlarged in terms of what is provided as per the amended sub-section 1 section 83 of the Act. They have to necessarily O.P.(Wakf) No.2/2014 5 follow the declaration and directions contained in Abdulla Shahul Hameed’s case (supra) for all intents and purposes. They shall not wait for any re-composition of the Tribunal in terms of sub-section 4 of section 83 of the Act, as amended, unless they are notified by the High Court to do so, on fulfilment of the conditions precedent for operating any composition of Tribunal in terms of the amended provisions, as explained above and declared hereby. 13.Going by their own showing, the petitioners have come to this Court only on the plea as to non-availability of Tribunal in view of the amendment to the Act. That having been found against, they would be free to seek remedy from the Tribunal in accordance with law and subject to their entitlement to any such relief. 14.In the result, this original petition is closed preserving the right of the petitioners to move the appropriate Tribunal for such reliefs, if any, as would be available to them in accordance with law, as may be decided by that authority.” 3. In view of the Division Bench decision quoted above, the petitioners would be free to approach the Wakf Tribunal for appropriate reliefs. O.P.(Wakf) No.2/2014 6 4. It is submitted that the first respondent is dead. Since we are not deciding the rights of parties, appropriate steps can be taken before the Wakf Tribunal. O.P.(Wakf) No.2 of 2014 is accordingly closed. **K.T.SANKARAN JUDGE** **A.MUHAMED MUSTAQUE JUDGE** csl