RAJA ALIAS MOHAMMED ALI ISMAIL SAIT v THE KERALA STATE WAQF BOARD AND OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` TUESDAY, THE 9[TH] DAY OF JULY 2024 / 18TH ASHADHA, 1946 ``` ``` WP(C) NO. 8550 OF 2024 ``` ## **`PETITIONER/S:`** ``` RAJA ALIAS MOHAMMED ALI ISMAIL SAIT AGED 78 YEARS, S/O ISMAIL MOHAMMAD KASIM SAIT, 48, SOUTH AVENUE, MAHAKAVI BHARATIYAR ROAD, KOCHI REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ABDUL NAZAR, AGED 65 YEARS, S/O ISMAIL MOHAMMAD KASIM SAIT, RESIDING AT 36/1383-K-10 A, SKYLINE OPEL ARCH, JUDGE'S AVENUE, ELAMKULAM, KOCHI -682017, PIN - 688035 BY ADVS. MOHAMMED SADIQUE.T.A T.H.ABDUL AZEEZ K.P.MAJEED K.M.MOHAMMED YUSUFF (M-1323) SHANKAR V. ``` ## **`RESPONDENT/S:`** |**`1`**|**`THE KERALA STATE WAKF BOARD`**| |---|---| ||**`REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,`**| ||**`VIP ROAD, KALOOR, KOCHI,`**| ||**`PIN - 682017`**| |**`2`**|**`ABDUL LATHEEF SAIT`**| ||**`AGED 67 YEARS S/O HASSAN ABDUL LATHEEF SAIT,`**| ||**`14/772,SAIT HOUSE, CHULLIKAL, KOCHI,`**| ||**`PIN - 682002`**| |**`3`**|**`SULAIMAN SIAT AGED 67 YEARS`**| ||**`S/O HASSAN ABDUL LATHEEF SAIT,`**| ||**`14/772, SALT HOUSE, CHULLIKAL, KOCHI,`**| ||**`PIN - 682002`**| |**`4`**|**`MOHAMMED ALI SAIT AGED 70 YEARS`**| ||**`S/O HUSSAIN ABDUL LATHEEF SALT, YEARS,`**| ||**`13/431-A, NEAR SATYAS STUDIO, KOCHI,`**| ||**`PIN - 682005`**| W.P.C. No.8550 of 2024 2 ``` 5ABOOBACKER SIAT AGED 68 YEARS S/O HUSSAIN ABDUL LATHEEF SAIT, CC-14, 21/13 A, CHULLICKAL -KOCHI, PIN - 682005 BY ADVS. JAMSHEED HAFIZ, SC FOR R1 P.A.ABDUL JABBAR FOR R3 MUHAMMED SHAFFI FOR R4 & R5 ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.C. No.8550 of 2024 3 **“C.R.”** ## **AMIT RAWAL & EASWARAN S. , JJ.** **------------------------W.P.(C) No.8550 of 2024 ----------------------------------Dated this the 9th day of July 2024** ## **JUDGMENT** ## EASWARAN S. , J. Ext.P6 order passed by the Kerala State WAQF Board is under challenge in this writ petition, though an alternative remedy is available under Section 83 of the WAQF Act, 1995 by preferring an appeal before the WAQF Tribunal. Primarily we are concerned with an issue as to whether we should entertain this writ petition despite the existence of an alternative remedy. 2. No doubt, the availability of alternative remedy is not a bar in entertaining the Writ Petition under Article 226 of the Constitution of India and it is only a self imposed restraint by the Court. This Court is however required to address this issue W.P.C. No.8550 of 2024 4 especially since, the Court, while admitting the Writ Petition on 6.3.2024 had specifically raised this question and ordered that ## “ **the question of maintainability of the Writ Petition will be decided with notice to the party respondents.** ” 3. Facts succinctly stated are as follows: The petitioner is the Muthawalli of Abdul Latheef Haji Ismail Sait Dharmasthapanam, which is a WAQF, registered under the provisions of the WAQF Act. The 1st Muthawalli was Abdul Latheef Haji Ismail Sait itself and after his death, his son Muhammed Kasim Abdul Latheef Sait became the Muthawalli who executed a Will in the year 1954 and after his death, father of the petitioner Ismail Mohammed Kasim Sait became the Muthawalli. 4. The contesting respondents filed O.P. No.62 of 2013 before the WAQF Board seeking reliefs in terms of the provisions W.P.C. No.8550 of 2024 5 contained under Sections 32, 47, 69, 70 and 71 in the administration of the WAQF, to conduct an audit of the WAQF from 2000 onwards, to frame a scheme for WAQF to elect the committee for the management of the WAQF on the basis of the scheme so framed, to suspend the 1st respondent (petitioner herein) from the post of Muthawalli and to appoint an interim Muthawalli during the pendency of the petition. 5. The petitioner/1st respondent in OP No.62/2013 before the WAQF Board entered appearance and filed his objections. The WAQF Board, on 14.2.2024, passed Ext.P6 order invoking the powers under Section 65(5) of the WAQF Act, 1995. According to the petitioner, he was not afforded an opportunity of being heard as regards the invocation of the powers under Section 65(5) of the WAQF Act, 1995. Reference is also placed on W.P.C. No.8550 of 2024 6 the judgment of the Division Bench of this Court in O.P.(WAKF) No.26/2017 & WP(C) No.14020/2017 dated 29.6.2017. Therefore, according to the petitioner, the application being filed under Sections 32, 47, 69, 70 and 71 of the WAQF Act, there was no notice prior to the intention expressed by the Board to invoke the provisions of Section 65(5) of the WAQF Act and hence the Writ Petition is filed. 6. We have heard Sri. T.H Abdul Azeez, assisted by Sri. Shankar V., the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for the 1st respondent, Sri. P.A. Abdul Jabbar, the learned counsel appearing for the 3rd respondent and Sri. Muhammed Shafi, the learned counsel appearing for respondents 4 and 5. 7. The learned counsel appearing for the petitioner placed W.P.C. No.8550 of 2024 7 reliance on the following judgments to contend that since there is violation of Principles of Natural Justice, the petitioner need not avail the alternate remedy under the provisions of the WAQF Act, 1995 and therefore the Writ Petition is perfectly maintainable. - **1.Bombay Co.Ltd. v. State (Kerala) [1952 KHC 104],** 2. **Sangram Singh v. Election Tribunal Kotah [1955 KHC 374 (SC)],** - **3.Hari Vishnu Kamath Vs. Syed Ahamed [ 1955 SCR (1) 1104],** - **4.The State of Uttar Pradesh Vs. Mohammed Nooh [ 1958 SCR (1) 595],** 5. **Musali Guptan Vs. State of Kerala [ 1963 KHC 248 (Kerala)],** - **6.Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others [1998 KHC 1225],** 7. **Godrej Sara Lee Ltd. Vs. Excise and Taxation officer [2023 KHC 6093],** 8. **Central Council for Research Studies in Ayurvedic Sciences Vs. Bikartan Das [2023 KHC 6774 (SC** )] W.P.C. No.8550 of 2024 8 8. Further reliance was placed on the judgment of the Division Bench of the Karnataka High Court in **Syed Shah** **Tayyab Khadri v. State of Karnataka and Others [2019** **KHC 5558** ] to contend that before removing the Muthawalli, notice under Section 64 ought to have been served on the Muthawalli by the WAQF Board before passing such orders and therefore Ext.P6 order is _per se_ illegal and not sustainable under the eyes of law and thus prayed that the writ petition be proceeded to be considered on merits. 9. On the other hand, the learned Standing Counsel appearing for the 1st respondent submitted that the assertion of the petitioner that no notice has been issued to the petitioner before proceeding to pass Ext.P6 order is incorrect and, in fact, the petitioner/1st respondent was represented by the counsel, W.P.C. No.8550 of 2024 9 which is evident from a reading of Ext.P6 order itself. He also pointed out that the original Muthawalli at present is infirm and the WAQF is being managed by one Nazar Sait claiming the power of attorney holder of the original Muthawalli and he is mismanaging the WAQF property. 10. The learned counsel appearing for respondents 3 to 5 herein (petitioners 2 to 4 in OP No.62/2013) submitted that the present writ petition is not maintainable since the petitioner herein has got an effective alternative remedy before the WAQF Tribunal. He would further contend that the order of the Tribunal does not suffer from any jurisdictional error which would warrant exercise of the powers under Article 226 of the Constitution of India. ## 11. We have considered the submissions raised across the Bar and have gone through the memorandum of the Writ Petition W.P.C. No.8550 of 2024 10 and the documents produced along with it. 12. The availability of an alternative remedy is not an absolute bar in entertaining the Writ Petition. However, the Honourable Supreme Court in **Commissioner Of Income Tax &** **Ors vs Chhabil Dass Agarwal** [2014 (1) SCC 603] had specifically carved out four exceptions for entertaining the Writ Petition _dehors_ the availability of alternate remedy. The said exceptions as stated in paragraph 15 of the judgment are extracted below: “15. **Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and** W.P.C. No.8550 of 2024 11 **he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499). “** 13. In order to maintain the present Writ Petition, the petitioner ought to establish before this Court that the present Writ Petition would come under the four exceptions carved out by the Honourable Supreme Court in **Chhabil Dass** (Supra). The averments in the memorandum of Writ Petition reveal that the only ground on which the Writ Petition is sought to be maintained, notwithstanding the availability of the alternate remedy, is that no notice was issued to the petitioner before passing Ext.P6 order. Reliance is placed on Ext.P7 judgment of the Division Bench to contend that it was mandatory on the part W.P.C. No.8550 of 2024 12 of the WAQF Board to have issue notice before proceeding to pass an order in the nature of Ext.P6. Therefore, we may have to decide on the sustainability of the aforesaid contention in order to entertain the writ petition. 14. Sub-Section (5) of Section 65 of the WAQF Act, 1995 reads as follows: “ **Notwithstanding anything contained in subsection (1), the Board shall take over the administration of a Waqf, if the Waqf Board has evidence before it to prove that management of the Waqf has contravened the provisions of this Act.”** 15. A bare reading of sub-section (5) of Section 65 shows the power conferred upon the WAQF Board to take over the administration of the WAQF based on the evidence before it when it is proved that the management of the WAQF contravened the provisions of the WAQF Act, 1995. W.P.C. No.8550 of 2024 13 16. It is pertinent to note that the application before the WAQF Board was filed under Sections 32, 47, 69, 70 and 71 of the WAQF Act, 1995. Section 32 deals with the general power of the Board. Section 47 provides for the audit of the accounts to be submitted before the WAQF Board. Sections 70 and 71 speak about an enquiry relating to the administration of the WAQF and also the manner in which the enquiry should be held. Cumulative reading of Sections 32, 47, 69, 70 and 71 shows that as soon as an application is made by a person interested for the management of the WAQF and also to frame a scheme, the Board has got sufficient power to frame a scheme and also to conduct an enquiry with regard to the administration of the WAQF. Admittedly, in the present case, the petitioner was put to notice regarding the enquiry that was contemplated in terms of the W.P.C. No.8550 of 2024 14 provisions of the WAQF Act, and the petitioner appeared through his counsel and contested the claim. It is thereafter the WAQF Board proceeded to pass the impugned order. However the petitioner contends that even if notice on the main petition was issued to him, on culmination of the proceedings, if the WAQF Board was of the view that power under sub-Section (5) of Section 65 is required to be exercised, then a fresh notice is required to be issued. Therefore, we will have to decide whether the scheme of the WAQF Act, 1995 contemplates such an eventuality as argued by the learned Counsel for the petitioner. 17. The controversy over such requirement has arisen in this case, since the counsel for the petitioner asserts before this Court that going by the principles laid down in Ext.P7 judgment of the coordinate Bench of this Court, a separate notice under W.P.C. No.8550 of 2024 15 Section 65(5), is required to be issued by the WAQF Board. The above contention though seems to be attractive at first blush, it is not so. It is pertinent to note that Section 65(1) provides for assumption of direct management of the WAQF by notification by the Board, when no suitable person is available for appointment as Muthawalli of a WAQF or where the Board is satisfied for reasons to be recorded by it in writing, that the filling up of the vacancy of Muthawalli is prejudicial to the interest of the Board. In addition to the above power, sub- section (5) provides that the Board shall take over the management of a WAQF, if the evidence before it proved that the management of the WAQF was conducted in contravention of the provisions of the Act. No doubt, in Ext.P7 judgment, the coordinate Bench of this Court has held that notice before passing an order under sub-Section W.P.C. No.8550 of 2024 16 (5) of Section 65, is required to be issued. Though the aforesaid proposition is indisputable, we are of the considered view that in the present case the facts are entirely different. Admittedly, the petitioner was issued with notice and the WAQF Board proceeded to consider the evidence before it and on a cumulative assessment of the pleadings and evidence, came to the conclusion that the WAQF was being managed in contravention of the provisions contained in the WAQF Act. Therefore, in our considered view, there was sufficient compliance of the Principles of Natural Justice. The essence of reliefs claimed in Ext.P3 petition was the removal of the petitioner from the position of Muthawalli. Therefore, once the petitioner was issued with a notice on the main petition, he cannot be permitted to contend that a separate notice is required before passing an order under W.P.C. No.8550 of 2024 17 sub-Section (5) of Section 65 of the WAQF Act, 1995. Hence, we are of the view that once a notice is issued to the petitioner on the application preferred by the respondents 2 to 5, there is no requirement to issue further notice under sub-Section (5) of Section 65 of the WAQF Act. To hold so would definitely do violence to the statute. 18. We are also persuaded to take this view, since the facts at hand are clearly distinguishable from the facts presented before the Division Bench in Exhibit P7 Judgment. On a close reading of Ext.P7 Judgment, it becomes clear that the order which was under challenge before the Division Bench was on an application under Section 32 alone and directions were issued therein under Section 32 and, thereafter, there was a further application complaining non compliance of the directions W.P.C. No.8550 of 2024 18 passed by the WAQF Board. The Division Bench also took note of the fact that the order under sub-section (5) of Section 65 was passed after the disposal of the main application under Section 32 which was also one of the reasons which persuaded the Division Bench to hold that a separate notice was required to be issued before passing an order under sub-section (5) of Section 65. This being the position, the facts before the Division Bench in Ext.P7 judgment being clearly distinguishable in so far as the present case is concerned. Therefore, the decision in Exhibit P7 has to be understood rendered on the particular facts and cannot be applied universally. We are also not persuaded to hold that in a joint application under Sections 32, 47, 69, 70 and 71, when notice was issued to the parties, evidence was taken and the parties were represented by respective counsel, the WAQF Board, W.P.C. No.8550 of 2024 19 on a final analysis of the evidence before it, finds that power under sub-Section (5) of Section 65 has to be exercised, it need not issue a separate notice. 19. Accordingly, we decline to entertain the present Writ Petition on the ground of availability of the alternative remedy to the petitioner. However, having said so, the dismissal of the Writ Petition will not stand in the way of the petitioner invoking the alternate remedy under Section 83 of the WAQF Act on the merits of the case. With the above said observation, the Writ Petition is dismissed. No order as to costs. Sd/- **AMIT RAWAL JUDGE** Sd/- **EASWARAN S. JUDGE** NS W.P.C. No.8550 of 2024 20 ## **`APPENDIX OF WP(C) 8550/2024`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 THE TRUE COPY OF THE EXTRACT OF THE REGISTER OF THE SAID WAKF WITH THE OFFICE OF THE BOARD`** - **`Exhibit P2 TRUE COPY OF THE REGISTERED POWER OF ATTORNEY DATED 20.03.2015`** - **`Exhibit P3 THE TRUE COPY OF THE O.P. NO: 62/2013 DATED 2/4/2013`** - **`Exhibit P4 THE TRUE COPY OF THE OBJECTION DATED 19/3/2015 Exhibit P5 THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 26931/2020 OF THE HONORABLE HIGH COURT OF KERALA DATED 11.01.2023`** - **`Exhibit P6 TRUE COPY OF THE ORDER DATED 14.02.2024 RECEIVED BY THE PETITIONERS COUNSEL ON 27.02.2024`** - **`Exhibit P7 THE TRUE COPY OF THE JUDGMENT RENDERED BY THIS HONORABLE COURT IN O.P.(WAKF) NO. 26/2017 DATED 29.06.2017`** - **`Exhibit P8 THE JUDGMENT DATED 01.08.1977 OF THE HONORABLE HIGH COURT OF KERALA REPORTED AS 1977 KLT 659 ( KUNHI MOIDEENKUTTY MUSALIAR VS KERALA STATE WAKF BOARD AND OTHERS)`** - **`Exhibit P9 THE TRUE COPY OF THE PETITION FILED BY THE PARTY RESPONDENTS HEREIN BEFORE THE WAKF BOARD DATED 07.02.2023`** - **`Exhibit P10 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BEFORE THE WAKF BOARD TO EXHIBIT P9 DATED 07.03.2023`** - **`Exhibit P11 THE TRUE COPY OF THE CONSENT LETTER SUBMITTED BY THE PETITIONER BEFORE THE COMPETENT AUTHORITY DATED 29.11.2022 IN RESPECT OF L.A.C NO: 1/2021`** - **`Exhibit P12 THE TRUE COPY OF THE CONSENT LETTER SUBMITTED BY THE PETITIONER BEFORE THE COMPETENT AUTHORITY DATED 28.11.2022 IN RESPECT OF L.A.C NO: 2/2021`** - **`Exhibit P13 TRUE COPY OF THE CONSENT LETTER SUBMITTED BY THE PETITIONER BEFORE THE COMPETENT AUTHORITY DATED 28.11.2022`** - **`Exhibit P14 TRUE COPY OF THE CONSENT LETTER SUBMITTED BY THE PETITIONER BEFORE THE COMPETENT AUTHORITY DATED 28.11.2022`** - **`Exhibit P15 THE TRUE COPY OF THE LEASE DEED NO.1408/2023 DATED 19.09.2023`** - **`Exhibit P16 TRUE COPY THE INCOME AND EXPENDITURE ACCOUNT AS PER THE STATUTE IS FILED BY THE MUTAWALLI BEFORE THE WAKF BOARD FOR THE YEAR 2017-2018 DATED 24.07.2018`** W.P.C. No.8550 of 2024 21 ``` Exhibit P17THE TRUE COPY OF THE INCOME EXPENDITURE STATEMENT FOR THE YEAR 2018-2019 DATED NIL ``` - **`Exhibit P18 THE TRUE COPY OF THE INCOME AND EXPENDITURE ACCOUNT FOR THE FINANCIAL YEAR 2019-2020 DATED NIL`** - **`Exhibit P19 THE TRUE COPY OF THE INCOME AND EXPENDITURE ACCOUNT FOR THE FINANCIAL YEAR 2020-2021 DATED 02.08.2021`** - **`Exhibit P20 THE TRUE COPY OF THE INCOME AND EXPENDITURE ACCOUNT FOR THE FINANCIAL YEAR 2021-2022 DATED NIL`** - **`Exhibit P21 THE TRUE COPY OF THE INCOME AND EXPENDITURE ACCOUNT FOR THE FINANCIAL YEAR 2022-2023 DATED 25.03.2024`** ``` Exhibit P22THE TRUE COPY OF THE DEMAND NOTICE DATED 01.03.2024 Exhibit P23THE TRUE COPY OF THE O.P. NO: 114/2019 DATED 17.08.2019 ```