P.V. Ibrahimkoya & P.V. Abdul Majeed v. P.M. Abdulkhader Musliyar, M. Abdul Salam, K. Abdul Rahiman, 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. 18 of 2014 (R) ----------------------------- PETITIONER(S): ---------------------- 1. P.V. IBRAHIMKOYA, AGED 55 YEARS S/O. ABDURAHIMAN KANDAKUNNUMMAL, PRESIDENT HAYATHUL ISLAM COMMITTEE, REG.NO. 408/1989 KEDAVOOR AMSOM, CHAMAL DESOM, P.O. CHAMAL KOZHIKODE. 2. P.V.ABDUL MAJEED, AGED 50 YEARS S/O. HUSSAIN, POOVANMALA, SECRETARY HAYATHUL ISLAM COMMITTEE, REG.NO. 408/1989 KEDAVOOR AMSOM, CHAMAL DESOM, P.O. CHAMAL KOZHIKODE. BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): ------------------------ 1. P.M. ABDULKHADER MUSLIYAR S/O. HUSSAIN, POOVAN MALAYIL HOUSE, KEDAVOOR AMSOM CHAMAL DESOM, P.O. CHAMAL, KOZHIKODE-673573. 2. M.ABDUL SALAM S/O. MANAKENDAN KHADER, POOVAN MALAYIL HOUSE KEDAVOOR AMSOM, CHAMAL DESOM, P.O.CHAMAL KOZHIKODE-673573. 3. K.ABDULRAHIMAN S/O. KOYAMUTTY HAJI KANDANKUNNUMMAL POOVAN MALAYIL HOUSE KEDAVOOR AMSOM CHAMAL DESOM, P.O.CHAMAL, KOZHIKODE-673573. 4. KERALA WAKF BOARD REGIONAL OFFICE, EROTH CENTRE KALATHINKUNNU AMSOM DESOM, KOZHIKODE-673001. R1 -R 3 BY ADV. SRI.SANTHARAM.P R1 -R 3 BY ADV. SMT.REKHA ARAVIND 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. 18 of 2014 (R) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ----------------------------------- EXHIBIT P1- TRUE COPY OF THE PERMITE DATED 17-2-14 ISSUED BY THE KATTIPPARA GRAMA PANCHAYATH. EXHIBIT P2- TRUE COPY OF THE PLAINT, O.S. 25/14 FILED BY THE PETITIONERS BEFORE THE WAKF TRIBUNAL. EXHIBIT P3- TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A. 150/14 IN OS. 25/14. RESPONDENT(S)' EXHIBITS : -------------------------------------- EXT.R1(a) : TRUE COPY OF THE MUNUTES AND THE DECISION ARRIVED AT IN THE MEETING HELD IN THE YEAR 2003. EXT.R1(b): TRUE COPY OF O.P.NO.155/2011 BEFORE THE WAKF BOARD. EXT.R1(c) : TRUE COPY OF THE COMPLAINT DATED 15.4.2014 PREFERRED BY THE FIRST RESPONDENT BEFORE THE SUPERINTENDENT OF POLICE (RURAL), KOZHIKODE. ## **K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.** -------------------------------------- O.P.(Wakf) No.18 of 2014 -------------------------------------Dated this the 9[th] day of July, 2014 ## **K.T.Sankaran, J.** ## _**JUDGMENT**_ The petitioners filed O.S.No.25 of 2014 on the file of the Wakf Tribunal, Kozhikode, against the respondents for a permanent prohibitory injunction restraining respondents 1 to 3 from interfering with the renovation of the mosque in question. The Original Petition is filed complaining that the Wakf Tribunal as provided in Section 83(4) has not been constituted and therefore, interim orders may be passed in the Original Petition. 2. A Division Bench of this Court in O.P.(Wakf) No.23 of 2014 held as follows : O.P.(Wakf) No.18/2014 2 8. We now proceed to notice as to what is 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. O.P.(Wakf) No.18/2014 3 For all other purposes, it continues to be what it was before the amendment. Though the amending 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 O.P.(Wakf) No.18/2014 4 amendment to sub-section 1 of Section 83, however that, the composition of the Tribunal cannot be modified except by a notification in 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 O.P.(Wakf) No.18/2014 5 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 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 the light of the judgment in O.P.(Wakf) No.23 of O.P.(Wakf) No.18/2014 6 2014, this Original Petition is closed with liberty to the petitioners to move the Wakf Tribunal for appropriate reliefs. O.P.(Wakf) No.18 of 2014 is accordingly closed. **K.T.SANKARAN JUDGE** **A.MUHAMED MUSTAQUE JUDGE** csl