PATTINIYODA CHACHADA CHERIYAKOYA v LAKSHADWEEP STATE WAKF BOARD; PATTINIYODA CHACHADA POKKOYA; PATTINIYODA CHACHADA MOHAMMED KOYA

CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935 CRP.No. 424 of 2011 ( ) ------------------------ (AGAINST THE ORDER IN WTOA 1/2011 of WAKF TRIBUNAL, KAVARATTI ISLAND LAKSHADWEEP DATED 27-07-2011 AND ORDER DATED 23/2/2011 IN W.C.NO.2/2010 OF THE LAKSHADWEEP STATE WAKF BOARD) REVISION PETITIONER(S)/APPLICANT/RESPONDENT: --------------------------------------------- PATTINIYODA CHACHADA CHERIYAKOYA, S/O.LATE SYED MOHAMMED KOYA, AGATTI ISLAND UNION TERRITORY OF LAKSHADWEEP. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S)/RESPONDENTS/PETITIONERS & WAKF BOARD: ---------------------------------------------------- 1. THE LAKSHADWEEP STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, KAVARATTI.682 555 2. PATTINIYODA CHACHADA POKKOYA, S/O.LATE SYED MOHAMMED KOYA, AGATTI ISLAND UNION TERRITORY OF LAKSHADWEEP.682 553 3. PATTINIYODA CHACHADA MOHAMMED KOYA, S/O.LATE SYED MOHAMMED KOYA, AGATTI ISLAND UNION TERRITORY OF LAKSHADWEEP.682 553 R2 & R3 BY ADV. SRI.P.K.IBRAHIM R1 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.M.JOSEPH & A.HARIPRASAD, JJ CR** - - - - - - - - - - - - - - - - - - - - - ## **C.R.P. No. 424 of 2011** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of July, 2013 ## **O R D E R** ## **Joseph,J.** The petitioner is the applicant under Section 83(2) of the Wakf Act, 1995 (hereinafter referred to as the 'Act' for short). This Civil Revision Petition is filed against the order passed by the 1[st] respondent in W.T.O.A. No.1/2011 of the Wakf Tribunal, Lakshadweep and the order in W.C. No.2/2010 of the Lakshadweep State Wakf Board. By the order passed by the Wakf Board, the Board directed that respondents 2 and 3 herein will be Mutawallis from 1[st] March 2011 to March 2015. From 1[st] April 2015 till March 2016, the petitioner was to be the Mutawalli. The other direction issued was that within six months the parties have to prepare a scheme for management. The following facts are not in dispute. 2. The petitioner and the respondents 2 and 3 are brothers. They are the sons of one late Sayed Mohammed Koya of Agatti Island. The father had dedicated 1620 sq. mtrs. of land as wakf C.R.P.No.424/2011 2 and constructed a small mosque. He acted as mutawalli till his death. The father died in the year 1992. 3. Thereafter, it is the case of the petitioner that, he submitted Annexure-1 application before the Wakf Board requesting it to appoint him as mutawalli. According to him, the Board, after making publication of notice in Lakshadweep Times and inviting objections and also publishing notices on the notice boards of all Juma masjids, Deputy Collector's office and information office etc. and noting that no objections were raised, appointed the petitioner as mutawalli under Section 63 of the Act. While the petitioner was acting as mutawalli, the 3[rd] respondent filed objection before the 1[st] respondent requesting to appoint him as mutawalli. The first respondent, without hearing the applicant/petitioner, appointed the 3[rd] respondent as the mutawalli. Challenging the order of the first respondent, the petitioner moved the High Court by filing W.P.(C) No.7910/2010 and an interim stay was obtained. The 2[nd] respondent also moved the 1[st] respondent-Board and he filed W.P.(C) No.22525/2010 before this Court. The High Court disposed of the matter directing the Board to take up and pass orders on the C.R.P.No.424/2011 3 petition filed by the 2[nd] respondent within six weeks of production of a copy of that judgment. The Board has proceeded to pass an order, by which the petitioner was removed from mutawalli ship. The Board also found that actually the brothers were dealing with the property, as though it is not Wakf Property, and suitable directions were issued for taking steps for recovering the possession of the property. 4. The learned Tribunal has found that Annexure-III order, purported to be passed by the Wakf Board(appointing the petitioner originally), is actually passed by the Chief Executive Officer of the Board. The Chief Executive Officer has no authority delegated to him under Section 27 of the Act to issue such order. The power under Section 63 is to be exercised by the Board. No publication was made except in 'Lakshadweep Times' which does not come out on a regular basis. The powers of the Chief Executive Officer are mentioned in the Act. Fraud is played on the Board by the Petitioner as he did not bring to the notice of the Board an agreement entered into between the petitioner and the brothers by which mutawali ship has to be shared and has to be arranged by rotation among the brothers. C.R.P.No.424/2011 4 Under Section 63 of the Act, the Board may appoint any person to act as mutawalli for certain period, when there is a vacancy of mutawalli and there is no one to be appointed under the terms of the deed of the Wakf or when the right of any person to act as mutawalli is disputed. Finally, the Tribunal confirmed the order of the Board. Hence, this petition. 5. We have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents 2 and 3. 6. The learned counsel for the petitioner would point out that an order was passed under Section 63 of the Act. The petitioner was appointed as mutawalli . The said order was not challenged by respondents 2 and 3 under Section 83 of the Act. There is no power of review with the Board. It is submitted that none of the grounds mentioned in Section 64 for removal of mutawalli is made out. In such circumstances, he would question the legality of the order of the Tribunal confirming the order of the Board. The learned counsel also questioned the findings made by the Tribunal. 7. The learned counsel for the respondents 2 and 3 would C.R.P.No.424/2011 5 submit that the impugned order is liable to be confirmed. Fraud was played on the Board . As the fraud was played, the decision of the Apex Court in **United India Insurance Co. Ltd. v. Rajendra Singh** (2000 (3) KLT SN 11) apply and the order, which was actually passed by the Chief Executive Officer for which he had no power at all, came to be recalled by the Board when it was brought to its notice. There is no need to file a petition under Section 83 of the Act. Failure to file petition could not stand in the way of recalling the order and doing justice. 8. The learned counsel for the first respondent would submit that there is no delegation by the Board and there is no authorisation in writing under Section 27 to the Chief Executive Officer to exercise the power under Section 63 of the Act. 9. As already stated, the father of the petitioner and respondents 2 and 3 had dedicated 1620 sq. mtrs. of land as Wakf and a mosque is also constructed therein. The petitioner's father died in the year 1992. The Petitioner made an application for appointing him as mutawalli under Section 63 alleging that there was a vacancy. But, he did not refer to the fact that there was an agreement between him and his brothers by which C.R.P.No.424/2011 6 Mutawalli ship was to be decided on the basis of rotation. This was the vital piece of information which the petitioner withheld from the Board. Section 63 of the Act reads as follows: “ **63. Power to appoint mutawallis in certain cases** :- When there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the Wakf, or where the right of any person to act as mutawalli is disputed, the board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.” 10. As per Section 63, the power to pass order is vested with the Board. Section 27 of the Act reads as follows: “27. **Delegation of powers by the Board** : The Board may, by a general or special order in writing, delegate to the Chairperson, any other member, the Secretary or any other officer or servant of the Board or any area committee, subject to such conditions and limitations as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary”. 11. Under Section 27 of the Act undoubtedly it could be stated that the Board has an authority to delegate any of its powers to any of its officer which would include the Chief Executive Officer. But it is to be borne-in -mind that such delegation is permissible in law only if it is done in writing. The C.R.P.No.424/2011 7 learned counsel for the petitioner fairly submitted before us that he is unable to show that there exists any such delegation made by the Board to the Chief Executive Officer, to exercise the powers under Section 63 in writing. Therefore, this is a case where the Chief Executive Officer has purported to exercise powers without any authority available in law to decide such an important issue regarding the appointment of mutawali. The power is entrusted by the framers of the Act with the Board and not on the Executive Officer of the Board. In such circumstances, it is a clear case of lack of authority . Section 83 of the Act provides for formation of Tribunals to consider the grievance of the affected party in this regard. The question which arises for decision in this case is whether the order is passed by an authority, who does not have any power at all in the sense that he inherently lacks jurisdiction. In the facts of this case, where the fraud is played on the authority, the right of the affected party is not confined to Section 83 of the Act. We would think that in the light of the findings, which have been rendered by the Tribunal in regard to the factors which vitiated Annexure III order passed by the Wakf Board appointing the C.R.P.No.424/2011 8 petitioner, the power of the Wakf Board to recall its order on the ground that it is an order procured by practicing fraud cannot be called in question. In this regard, we approve the findings of the Tribunal viz. the power under Section 63 is vested with the Board and it can be delegated to employees under Section 27 (1) in writing. There was no such delegation and still the Chief Executive Officer proceeded to pass orders. The publication of the notice was necessary. But, the publication was not done in news papers and periodicals having circulation. In stead, publication has been made in the Lakshadweep Times. It did not afford an opportunity to prospective objectors to raise their objections.. More important vital document viz. the agreement between the brothers was suppressed . The Board never got to deal with the matter and it was the Chief Executive Officer who passed the order. 12. Having regard to the facts and circumstances of the case, we would think that we may not be justified in interfering with the order passed by the Wakf Board. It is true that the act of the Board cannot be supportable under Section 64. As noted earlier, it is a case where the petitioner got an order from the C.R.P.No.424/2011 9 Chief Executive Officer and on the strength of the same he was continuing as mutuwalli as though there was an order passed by the Board under Section 63 of the Act. Even though the learned counsel for the petitioner argued that there was ratification by the Board of the action of the Chief Executive Officer of the Board, it is not in dispute that no such case is pleaded . 13. As we have already noticed the brothers were dealing with the property as though it was their own. Directions have been given to get the property of the Wakf from persons in possession. We find those directions were unexceptionable and are in the interest of the Wakf. As noted by the Tribunal, the directions in paragraphs 4 to 6 i.e. regarding the duration of mutuwalli ship are all temporary as they are subject to the scheme to be framed out. 14. Normally we would have thought that by an agreement between the parties when the question is placed before the khasi, whose place is taken by the Board which is the statutory authority, (in the absence of the deed providing for Rules as to succession or a custom regarding appointment of mutawalli), the authority to decide cannot be controlled. In this C.R.P.No.424/2011 10 case apparently directions 4 to 6 have been made on the basis of the deed executed between the parties. But we do not wish to say anything in this regard. In the facts of the case, i.e. as found by the Tribunal, it is all temporary and it is subject to the scheme to be framed under order passed by the Board. The scheme is to be prepared on an urgent basis as the parties have to present it within six months. We are told that the matter is kept without any action. The Board will act with due diligence so that the scheme is put in place at the earliest. In such circumstances, we see no reason to interfere with the order passed by the Board. The revision is dismissed. However, we delete the direction regarding the cost ordered to be paid by the petitioner. The Board will proceed with the matter with due expedition and we fix an outer period of 8 months from the date of receipt of a copy of the order. Sd/- **K.M.JOSEPH, Judge.** Sd/- **A.HARIPRASAD, Judge.** Dpk. /True copy/ P.S to Judge.