P.K. Jamaludeen @ P.K. Jamal vs Chettuva Mahal Jama-ath Committee, Thrissur; Kerala State Wakf Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939 CRP(WAKF).No. 348 of 2016 () ----------------------------- (AGAINST THE ORDER DATED 13.4.2016 IN I.A.NO.35/2015 IN W.O.A.NO.1/2015 OF THE WAKF TRIBUNAL, ERNAKULAM) REVN.PETITIONER/APPLICANT : ---------------------------------- P.K.JAMALUDEEN @ P.K.JAMAL AGED 63 YEARS, S/O. LATE KUNHU MOIDEEN, PANIKKAVEETTIL HOUSE, CHETTUVA, THRISSUR DISTRICT. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SRI.N.SATHEESH KUMAR(NEMMARA) SMT.AMRIN FATHIMA RESPONDENT(S)/RESPONDENTS : --------------------------- 1. CHETTUVA MAHAL JAMA-ATH COMMITTEE CHETTUVA, THRISSUR DISTRICT-680 001. 2. THE CHIEF EXECUTIVE OFFICER KERALA STATE WAKF BOARD, VIP ROAD, KALOOR, KOCHI-17. R1 BY ADV. SRI.M.P.MOHAMMED ASLAM R1 BY ADV. SRI.P.K.YUSUFF ISSUDDIN R2 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 05-06-2017, ALONG WITH CRP(WAKF)NO. 350/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP(WAKF).No. 348 of 2016 ## APPENDIX PETITIONERS' EXHIBITS: NIL RESPONDENTS' EXHIBITS: ANNEXURE-R1(a): TRUE COPY OF THE AGREEMENT BETWEEN PETITIONER AND THE 1ST RESPONDENT DATED 16.5.2012. - ANNEXURE-R1(b): TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE PETITIONER BEFORE THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD DATED 17.5.2012. - ANNEXURE-R1(c): TRUE COPY OF THE ORDER PASSED BY THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD DATED 25.10.2014. ANNEXURE-R1(d): TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 17.12.2014. // TRUE COPY // TKS ## P.S. TO JUDGE **“CR”** **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------C.R.P.(Wakf)Nos.348 & 350 of 2016 -----------------------------------------------Dated this the 5[th] day of June, 2017** ## **ORDER** ## **ANIL K. NARENDRAN, J.** These civil revision petitions filed under sub-section (9) of Section 83 of the Waqf Act, 1995 arise out of the orders of the Waqf Tribunal, Ernakulam dated 13.4.2016. C.R.P.(Wakf)No.348 of 2016 is filed against the order of the said Tribunal in I.A.No.35 of 2016 in W.O.A.No.1 of 2015 and C.R.P.(Wakf)No.350 of 2016 is filed against the order in I.A.No.36 of 2015 in W.O.A.No.2 of 2015. 2. The revision petitioners are the applicants before the Tribunal. Chettuva Mahal Jama-ath (Reg.No.3001/RA/61) is a wakf registered with the Kerala State Waqf Board. The administration and management of the wakf is vested in the 1[st] respondent Committee. The 2[nd] respondent is the Chief Executive Officer of the Kerala State Waqf Board. 3. Going by the averments in the original applications, the applicant in W.O.A.No.1 of 2015 is in possession and occupation of the waqf property having an extent of 40 cents as a licensee for conducting business, wherein he had constructed a building at his own C.R.P.(Wakf)Nos.348 & 350 of 2016 2 cost, as permitted by the waqf; and applicants 2 to 4 in W.O.A.No.2 of 2015 are in possession and occupation of the waqf property having an extent of 5 cents for conducting business, as the legal heirs of the 1[st] applicant, wherein the 1[st] applicant had constructed a building at his own cost, as permitted by the waqf. The applicant in W.O.A.No.1 of 2015 and the 1[st] applicant in W.O.A.No.2 of 2015 were issued an order bearing No.E4-881/12 dated 25.10.2014 of the 2[nd] respondent, by which they were informed that the lease deeds, if any, executed in respect of the above mentioned waqf properties without following the legal formalities under the Waqf Properties Lease Rules, 2014 stand terminated. By the said order, the 1[st] respondent Committee is directed to lease out the said properties after complying with the statutory requirements under the Lease Rules, in consultation with the Waqf Board. As per the said notice, the applicant in W.O.A.No.1 of 2015 and the 1[st] applicant in W.O.A.No.2 of 2015 were informed that they are free to participate in the auction as per law. It was made clear that, continued occupation of the properties after termination of tenancy would render them liable to prosecution under Section 52A of the Waqf Act. 1995. 4. The said order dated 25.10.2014 of the 2[nd] respondent was under challenge in W.O.A.Nos.1 of 2015 and 2 of 2015 filed before the Tribunal. Along with those original applications, I.A.Nos.35 of 2015 and C.R.P.(Wakf)Nos.348 & 350 of 2016 3 36 of 2015 were filed seeking for an order to stay the operation and implementation of the said order of the 2[nd] respondent. 5. After perusing the affidavit and also the order dated 25.10.2014, the Tribunal stayed the operation of the said order of the 2[nd] respondent until further orders, by its order dated 27.1.2015 in I.A.Nos.35 of 2015 and 36 of 2015. The order dated 27.1.2015 of the Tribunal in I.A.No.36 of 2015 in W.O.A.No.2 of 2015 (a copy of which is made available for perusal, by the learned counsel for the revision petitioners) reads thus; “Heard Sri. J. Ramkumar. Affidavit and the order of the Wakf Board perused. The order of the Wakf Board dated 25.10.2014 is stayed until further orders. For return of notice, call on 23.4.2015.” The Tribunal passed a similarly worded order in I.A.No.36 of 2015 in W.O.A.No.2 of 2015 as well. 6. On receipt of notice, the 1[st] respondent Committee entered appearance and filed its objections before the Tribunal. Thereafter, on 13.4.2016, the Tribunal passed orders on I.A.Nos.35 of 2015 and 36 of 2015 by which the 1[st] respondent Committee is permitted to lease out the property as per lease rules. The order of the Tribunal dated 13.4.2016 I.A.No.35 of 2015 in W.O.A.No.1 of 2015, which is impugned in C.R.P.(Wakf)No.348 of 2016 reads thus; “Interim stay order reviewed. Wakf can be leased ( _sic: can lease_ C.R.P.(Wakf)Nos.348 & 350 of 2016 4 _out_ ) the property as per lease rules.” The Tribunal passed a similarly worded order in I.A.No.36 of 2015 in W.O.A.No.2 of 2015 as well, which is impugned in C.R.P.(Wakf)No. 350 of 2016. 7. Challenging the above orders of the Tribunal dated 13.4.2016, the applicants in I.A.Nos.35 of 2015 and 36 of 2015 are before this Court in these civil revision petitions filed invoking the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995. On 17.8.2016, this Court admitted the civil revision petitions on file and issued urgent notice by special messenger to the 1[st] respondent Committee. On 22.8.2016, the 1[st] respondent Committee entered appearance and sought time to file counter. On the said date, this Court has recorded the undertaking given by the 1[st] respondent Committee that the lease will not be finalised in the meanwhile. Thereafter, on 21.3.2017, this Court ordered that the tender process can go on, but the same shall be subject to the result of these civil revision petitions. 8. The 1[st] respondent Committee has filed counter affidavits in these civil revision petitions, contending that the licence agreements executed in respect of the properties in question, while the erstwhile Committee was in management of the waqf, are against the interests of the waqf and even contrary to the provisions under the Waqf Act. C.R.P.(Wakf)Nos.348 & 350 of 2016 5 The applicant in W.O.A.No.1 of 2015 and applicants 2 to 4 in W.O.A.No.2 of 2015 are trespassers, who are in unlawful occupation of the waqf properties and as such, they are liable to be evicted. The 2[nd] respondent initiated proceedings against the applicant in W.O.A.No.1 of 2015 and the 1[st] applicant in W.O.A.No.2 of 2015, pursuant to the order of the Waqf Board dated 19.7.2011 in O.P.No.90 of 2009, which culminated in the order dated 25.10.2014 of the 2[nd] respondent. Pursuant to the said order, the 1[st] respondent Committee issued notices dated 17.12.2014 to the applicant in W.O.A.No.1 of 2015 and the 1[st] applicant in W.O.A.No.2 of 2015, directing them to vacate the premises within 10 days. 9. Heard the arguments of learned counsel for the petitioners in these civil revision petitions, learned counsel for the 1[st] respondent Committee and also learned Standing Counsel for the 2[nd] respondent Waqf Board. 10. First, we shall deal with the question as to the maintainability of these civil revision petitions filed under the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995. 11. Section 83 of the Waqf Act, 1995 deals with constitution of Waqf Tribunals. Sub-section (1) of Section 83 of the Act provides that, the State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination C.R.P.(Wakf)Nos.348 & 350 of 2016 6 of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals. Going by sub-section (2) of Section 83, any mutawalli or person interested in a waqf or any other person aggrieved by an order made under the Act, or rules made thereunder, may make an application within the time specified in the Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf. 12. Sub-section (7) of Section 83 of the Act provides that, the decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court. Sub-section (9) of Section 83 of the Act provides further that, no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal. However, going by the proviso to sub-section (9) of Section 83, the High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify C.R.P.(Wakf)Nos.348 & 350 of 2016 7 such determination or pass such other order as it may think fit. 13. In the instant case, the applicant in W.O.A.No.1 of 2015 and the 1[st ] applicant in W.O.A.No.2 of 2015 has approached the Tribunal challenging an order dated 25.10.2014 of the 2[nd] respondent by which they were informed that, the lease deeds, if any, executed in respect of the waqf properties in question stand terminated. By the said order, the 1[st] respondent Committee is directed to lease out the properties in question after complying with the statutory requirements under the Lease Rules, in consultation with the Waqf Board. The Tribunal originally stayed the operation of the said order of the Waqf Board, until further orders, by its order dated 27.1.2015. However, the said order of stay was vacated by the impugned order dated 13.4.2016, without assigning any reason whatsoever, and by the said order the Tribunal has permitted the 1[st] respondent Committee to lease out the properties in question as per the Lease Rules. Therefore, by the orders impugned in these civil revision petitions, the Tribunal in effect repelled the contention of the applicants that they are in possession and occupation of the properties in question as licensees coupled with interest. The determination so made by the Tribunal in the matter relating to their rights and obligations in relation to the waqf properties in question, squarely falls within scope of revisional jurisdiction exercised by this Court under the proviso to sub-section (9) of Section C.R.P.(Wakf)Nos.348 & 350 of 2016 8 83 of the Act. As such, these civil revision petitions are perfectly maintainable and we hold so. 14. Now, we shall deal with the question as to whether the impugned orders dated 13.4.2016 of the Tribunal vacating the order of stay originally granted on 13.4.2016, without assigning any reason whatsoever, and permitting the 1[st] respondent Committee to lease out the properties in question as per the Lease Rules, can be sustained in law. 15. The learned counsel for the revision petitioners would contend that the Tribunal has stated no reason whatsoever in the impugned orders dated 13.4.2016 to vacate the order of stay granted on 27.1.2015 and for permitting the 1[st] respondent Committee to lease out the properties in question as per the Lease Rules. Per contra, the learned counsel for the 1[st] respondent Committee would contend that the Tribunal vacated the said order of stay after detailed hearing, on being satisfied that the said order was one passed without being apprised of all relevant facts of the case. 16. In **Woolcombers of India Ltd. v. Woolcombers Workers Union [(1974) 3 SCC 318]** the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947 held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities C.R.P.(Wakf)Nos.348 & 350 of 2016 9 when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. 17. In **Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [(2010) 4 SCC 785]** the C.R.P.(Wakf)Nos.348 & 350 of 2016 10 Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction. 18. In **Shukla and Brothers' case (supra)** The Apex Court held further that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Nonrecording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim C.R.P.(Wakf)Nos.348 & 350 of 2016 11 and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. 19. In **English v. Emery Reimbold and Strick Ltd. [(2002)** **1 WLR 2409]** the Court of Appeal held that, a judicial decision which affected the substantive rights of the parties should be reasoned, although some judicial decisions, e.g. interlocutory case management decisions, did not require reasons; that, while a judge was not obliged to deal with every argument or identify or explain every factor which weighed with him, the issues the resolution of which were vital to his conclusion should be identified and the manner in which he resolved them briefly but clearly explained, so that the judgment enabled the parties and any appellate tribunal readily to analyse the reasoning essential to his decision. 20. Admittedly, in the instant case, the impugned orders of the Tribunal dated 13.4.2016 are cryptic orders, which do not disclose any reason whatsoever to vacate the order of stay granted on 27.1.2015 and for permitting the 1[st] respondent Committee to lease out the properties in question as per the Lease Rules, thereby virtually repelling the challenge made by the revision petitioners against the order of the Waqf Board dated 25.10.2014, which was impugned in the original applications filed before the Tribunal. Such a cryptic order C.R.P.(Wakf)Nos.348 & 350 of 2016 12 passed by the Waqf Tribunal suffer from vice of arbitrariness. Since giving of reasons is an essential element of administration of justice, such an order passed by the Waqf Tribunal must speak on its face. 21. Though, no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal exercising powers under Section 83 of the Waqf Act, in view of the prohibition contained under Sub-section (9) of Section 83 of the said Act; going by the proviso to sub-section (9) of Section 83 of the Act, this Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. A cryptic order passed by the Waqf Tribunal like the one which is impugned in these civil revision petitions virtually makes the revisional jurisdiction of this Court nugatory and ineffective, inasmuch as, such an order which does not disclose any reasons will be of little assistance to this Court, while analysing the reasoning essential to such a decision. 22. Viewed in the light of the law laid down in the decisions referred to supra, the impugned orders dated 13.4.2016 of the C.R.P.(Wakf)Nos.348 & 350 of 2016 13 Tribunal, which do not disclose any reason whatsoever to vacate the order of stay originally granted on 27.1.2015 and for permitting the 1[st] respondent Committee to lease out the properties in question as per the Lease Rules, cannot be sustained. 23. In the result, these civil revision petitions are allowed by setting aside the impugned orders dated 13.4.2016 of the Tribunal in I.A.No.35 of 2016 in W.O.A.No.1 of 2015 and I.A.No.36 of 2015 in W.O.A.No.2 of 2015. The Tribunal shall pass a reasoned order in those interlocutory applications, after considering the rival contentions, as expeditiously as possible, at any rate within two months from the date of production of a certified copy of this order. No order as to costs. Sd/- **C.T. RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS