Tath-Heerul Muslimeen Mahallu Committee Kootavil v Sangham (Masjid Rahman Juma Ath Palli) - CRP(WAKF) No. 359 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944 CRP(WAKF) NO. 359 OF 2015 AGAINST THE JUDGMENT AND DECREE DATED 08.05.2015 IN OS 4/2012 OF** **WAKF TRIBUNAL, KOZHIKODE** ## **REVISION PETITIONERS/DEFENDANTS 4,5, AND 6** 1 TATH-HEERUL MUSLIMEEN MAHALLU COMMITTEE KOOTAVIL, (SOCIETY REGD. UNDER THE SOCIETIES REGISTRATION ACT 1860 NO. 38/2010) REPRESENTED BY ITS GENERAL SECRETARY K.ABOOBACKER, S/O MAMMAD, AGED 60 YEARS KOOTAVIL, PULPATTA, MALAPPURAM DISTRICT – 676 126 2 K.ABOOBACKER, AGED 60 YEARS GENERAL SECRETARY TATH-HEERUL MUSLIMEEN MAHALLU COMMITTEE KOOTAVIL, (SOCIETY REGD. UNDER THE SOCIETIES REGISTRATION ACT 1860 NO. 38/2010) S/O MAMMED, KUZHIYIL THODI, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 3 P.C. ABDULLA MUSALIAR, AGED 63 YEARS PRESIDENT TATH-HEERUL MUSLIMEEN MAHALLU COMMITTEE KOOTAVIL, (SOCIETY REGD. UNDER THE SOCIETIES REGISTRATION ACT 1860 NO. 38/2010) S/O AHAMMED KUTTY, POTTENEM CHALI, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 BY ADV SRI.M.KRISHNAKUMAR ## **PLAINTIFFS AND DEFENDANTS 1 TO 3 AND 7 TO 12:** 1 M.P. MOOSAN, S/O MOHAMMED HAJI AGED 48 YEARS, MUKKAM PAYYALI, KOOTAVIL HOUSE, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 **CRP(WAKF) NO. 359 OF 2015** 2 2 3 4 5 6 7 8 9 10 M.K.MUHAMMED, S/O KOMU MUKKAN KOOTAVIL, 54 YEARS, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 M.C. SIDDIQUE, S/O UNNI MOYIN, MUKKAN CHALIKKAL, 30 YEARS, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 M.K. ABDUL SALAM, S/O ABDULLA MUSALIAR, AGED 50 YEARS, KOOTAVIL, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK,MALAPPURAM DISTRICT – 676 123 DHTH- HEERUL MUSLIMEEN COMMITTEE REPRESENTED BY ITS SECRETARY K.ABOOBACKER, S/O MAMMED, KUZHIYIL THODI, AGED 57 YEARS SECRETARY, HTH- HEERUL MUSLIMEEN COMMITTEE PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 P.C. ABDULLA MUSALIAR, S/O AHAMMED KUTTY, POTTANMCHALI 60 YEARS, PRESIDENT, DHTH- HEERUL MUSLIMEEN COMMITTEE PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 THE CHIEF EXECUTIVE OFFICER, THE KERALA STATE WAKF BOARD, KALOOR, COCHIN MUKKAM PALLIYIL KUNHALI S/O MUHAMMED HAJI, AGED 50 YEARS KOOTAVU HOUSE, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 M.P. ABOOBACKER, S/O MUHAMMED HAJI AGED 53 YEARS, KOOTAVU HOUSE PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 **CRP(WAKF) NO. 359 OF 2015** 3 11 MUKKAN AHAMMED HAJI S/O ABDULLA MUSALIAR AGED 63 YEARS, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 12 VADAKKETHODI MUHAMMED, S/O SAIDALAVI, AGED 48 YEARS PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 13 POTTANAMCHALI ABDU RAHIMAN, S/O UNNI MOIDEEN, AGED 65 YEARS, PULPATTA AMSOM, POOKALATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 123 BY ADVS. SRI.SREEKUMAR.G.CHELUR CAVEATOR SRI.M.PROMODH KUMAR SRI.P.R.SREEJITH SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD SRI.JAMSHEED HAFIZ, SC THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRP(WAKF) NO. 359 OF 2015** 4 # **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - C.R.P.(WAKF) NO.359 OF 2015 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## ORDER (Dated this the 14[th] day of July 2022) ## Basant Balaji J., The revision petitioners are defendants 4,5 and 6 in O.S. No.4 of 2012 on the files of the file of the Wakf Tribunal, Kozhikode. Respondents 1 to 4 and respondents 5 to 13 herein were the plaintiffs and defendants 1 to 3, 7 and supplemental defendants 8 to 12 respectively therein. (The parties are referred to in the order as they appeared in the proceedings before the court below). 2. The suit was filed for a declaration that the first defendant Sangham is in administration and management **CRP(WAKF) NO. 359 OF 2015** 5 of plaint schedule Wakf and its other properties and the creation of the 4[th] defendant Society showing its aims and objectives as the administration and management of the Wakf and Wakf properties is against law, unenforceable and inoperative and the 4[th] defendant and its office bearers are not competent or entitled to interfere with the administration and management of the plaint schedule property and other Wakf properties. The other prayer was to restrain the 4[th] defendant Society and its office bearers and 6[th] except 5[th] defendants in their capacity as the office bearers of 1[st] defendant Sangham from interfering with the administration and management of the plaint schedule property and other properties by a decree of the perpetual prohibitory injunction. 3. The case of the plaintiffs’ in brief is as follows: Masjid Rahman Juma ath Mosque is a Juma Ath Palli in **CRP(WAKF) NO. 359 OF 2015** 6 Malappuram district. The Mosque was being administered and managed by the first defendant Sangham which is an unregistered one. Second defendant is the President of the unregistered Sangham who has assumed office as being elected in general body meeting held in 2008. There is no bylaw or memorandum of association for the first defendant Sangham. All the male Sunni Muslims, who have attained the age of 18 years are entitled to the membership of general body of first defendant Sangham. All adult Sunni Muslims residing within the Mahal are beneficiaries of the Wakf. The first defendant or its office bearers are not entitled to deny the right of the beneficiaries to participate in the affairs and administration of the Wakf by exercising their right to elect the office bearers in the general body meeting. 2[nd] and 3[rd] defendants are not correctly and properly managing the administration of the **CRP(WAKF) NO. 359 OF 2015** 7 Mosque and other properties of the Wakf. The plaintiffs from reliable sources came to know that defendant Nos.2 and 3 and their henchmen have managed to create records and documents depriving the legitimate claims of the members of the general body of the first defendant Sangham. The plaintiffs applied and obtained certified copy of the bylaw and Memorandum of Association of the 4[th] defendant Society registered under the provisions of Societies Registration Act with registration No.38/2010. From the bylaw and Memorandum of Association of the society, the plaintiffs came to know that the society registered is with a name deceptively similar to that of first defendant Sangham. The sunni muslims who are the residents of Kootavu Mahal had no occasion to convene a general body to take a decision to formulate and approve the Memorandum of Association and bylaw of 4[th] **CRP(WAKF) NO. 359 OF 2015** 8 defendant society. There was no decision by the beneficiaries of the Wakf to create the 4[th] defendant society. As per the bylaw of the 4[th] defendant society the membership to the general body is restricted and confined only to those persons who are having membership in another society by name Samastha Kerala Sunni Yuva Jana Sangham with society registration No.23/1970. Samastha Krala Sunni Yuva Jana Sangham is a subsidiary body of Samastha Kerala Sunni Jum Iyyathul Ulama which is faction which came into existence after the split in Samastha Kerala Jum Iyyathul Ulama during the period 1985-86. The break-away group got their faction registered as separate organisation and separate Education Board, as Samastha Kerala Sunni Vidyabhyasa Board. As per the bylaw of the 4[th] defendant society, a superior body over the general body has been constituted consisting of 4 **CRP(WAKF) NO. 359 OF 2015** 9 persons holding prominent positions in Samastha Kerala Sunni Vidyabhyasa Board. The plaint schedule property where the Masjid Rahman Juma ath Palli is situated was dedicated as a Wakf without making any discrimination to the entire Muslims of Kootavu Mahal and the adjoining properties were acquired by raising contributions and donations among the entire Muslim community in the Mahal. The registration of 4[th] defendant society has no manner of right to assume the administration and management of Masjid Rahman Juma-ath Palli and Wakf properties to illegally take over the management of the Wakf. Though the society was registered under the provisions of Societies Registration Act the society has not in fact come into existence and no activities were carried on by it and the management of Masjid Rahman Juma-ath Palli and the Wakf properties has not been entrusted to it. **CRP(WAKF) NO. 359 OF 2015** 10 The suit was filed in accordance with Order 1 Rule 8 CPC. 4. Defendants 3 to 5 together filed a common written statement. They denied the plaint averments to the effect that there was no committee as shown as the first defendant. Masjid Rehman Juma ath Palli is not an ancient mosque. It was a small niskara palli in 1973 and after demolishing the present Juma Mosque was completed on 10.6.1992. The 6[th] defendant was the president of the unregistered committee who was managing the affairs. While so, in the general body conducted in the year 2010 under the leadership of 6[th] defendant, a decision has been taken to register the defendant committee. The bylaw and memorandum of association were passed and the committee was registered. From the date the Juma Mosque was constructed till the registration of the committee the Wakf property was managed by the committee headed by **CRP(WAKF) NO. 359 OF 2015** 11 the 6[th] defendant as the President, in the accordance with the bylaw. The plaint schedule property, including the plaint schedule mosque are not managed by the unregistered committee namely defendant Nos.1 to 3. The plaintiffs are not beneficiaries of the plaint schedule mosque and are not members of the 4[th] defendant society. If at all they have any complaint of violation of any right, they can raise the same before the governing general body. The misappropriation alleged against them was denied. The 4[th] defendant society has conducted elections as per the bylaw. It was also contended that the plaintiffs are not the residents of the Mahal and they have no right to file the suit under the Order 1 Rule 8 CPC. Hence, prayed for the dismissal of the suit. 5. Defendant Nos.8 to 11 also filed a common written statement contending that the first defendant **CRP(WAKF) NO. 359 OF 2015** 12 Sangham was managing the affairs of the Kootavil Masjid Rehiman Palli and its Wakf properties. The election was conducted in 2008 and defendant Nos.2 and 3 were elected as Secretary and President respectively. The 4[th] defendant has been formed without the concurrence of the beneficiaries of the general body members of the Masjid Rehman Juma Ath Palli and that the plaint schedule Wakf is now managed by first defendant Sangham and defendant Nos.5 and 6 are not managing the affairs of the Palli and wakf properties. 6. The Tribunal, on the basis of the pleadings, framed 8 issues. PW1 was examined on the side of plaintiffs and marked Ext.Nos.A1 to A22. On the side of defendants, DW1 was examined and Ext.Nos.B1 to B75 were marked. Ext.X1 was marked as third party Exhibit. 7. The Tribunal, on an appreciation of oral and **CRP(WAKF) NO. 359 OF 2015** 13 documentary evidence produced, decreed the suit as follows: “ (1) Declaring that Sangham is in administration and management of the plaint schedule Wakf and its other properties and the creation of 4[th] defendant society showing its aims and objectives as the administration and management of the above Wakf and Wakf properties is against law, unenforceable and inoperative and the 4[th] defendant and its office bearers are not competent or entitled to interfere with the administration and management of the plaint schedule property and its other Wakf properties by the first defendant Sangham and its office bearers. (2) By this decree of perpetual prohibitory injunction restrained the 4[th] defendant society and 6[th] and its office bearers except the 5[th] defendants in their capacity as the office bears of the first defendant sangham from interfering with the administration and management of plaint schedule properties and other Wakf properties.” **CRP(WAKF) NO. 359 OF 2015** 14 8. Aggrieved by the judgment and decree, this revision is filed by defendant Nos.4, 5 and 6. ## 9. Heard. 10. The main contention raised by the counsel for the revision petitioners is that the suit is not maintainable against the committee – Muthawalli and it can be dealt with only under Section 67 of the Wakf Act 1995. So the decree for injunction is not maintainable. 11. Section 67 of the Wakf act reads as follows: **“Section 67. Supervision and supersession of committee of management** **==> picture [424 x 38] intentionally omitted <==** (1) Whenever the supervision or management of any waqf is vested in any committee appointed by the waqf, then, notwithstanding anything contained in this Act, such committee shall continue to function until it is superseded by the Board or until the expiry of its term as may be specified by the [waqf], whichever is earlier: Provided that xxxxxx xxxxxxx xxxxx Provided further that xxxxxx xxxxxxx xxxxx **CRP(WAKF) NO. 359 OF 2015** 15 (2) Notwithstanding anything contained in this Act, and in the deed of the waqf, the Board may, if it is satisfied, for reasons to be recorded in writing, that a committee, referred to in sub-section(1) is not functioning properly and satisfactorily, or that the waqf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the waqf, in so far as it relates to the constitution of the committee, shall cease to have any force: Provided that the Board shall, before making any order superseding any committee, issue a notice setting forth therein the reasons for the proposed action and calling upon the Committee to show cause within such time, not being less than one month, as may be specified in the notice, as to why such action shall not be taken. ## (3) xxxxx xxxxxxx xxxxxxx” Pointing out this, the counsel for the revision petitioners, **CRP(WAKF) NO. 359 OF 2015** 16 Adv. M Krishnakumar contended that the first defendant is a committee registered under the provisions of the Societies Registration Act and the said committee is supervising and managing the Wakf and going by the spirit of the section, even if there is any allegation that the committee is not properly functioning the committee, shall continue to function until it is superseded by the Board or until the expiry of its term as may be specified by the Wakf, whichever is earlier. He goes on to contend that since the 4[th] defendant committee is the Muthawalli, even if the allegations raised against the committee is accepted in toto, a declaration and injunction suit as filed by the respondents will not lie and the 4[th] defendant committee cannot be injuncted by a perpetual prohibitory injunction. The counsel also relied on the decision of this court in **Muhammed Kunju M. A. v. Biju and others [2008 (2)** **CRP(WAKF) NO. 359 OF 2015** 17 **KHC 404]** in support of his contention that under Section 67 of the Wakf Act, the Wakf Board alone has the power to correct the maladministration and mismanagement of a Wakf and the Board alone is empowered to issue appropriate direction for effective and smooth functioning of the Wakf including the power of supersession. He relied on paragraph 13 of the **Muhammed Kunju (supra)** which reads as follows: “13. Going by the averments in Ext. P2 suit, we find that the grievance of the plaintiffs in that suit who are respondents 1 and 2 herein is that the affairs of the Wakf were being mismanaged by the then committee members. The committee is duty bound to apply and follow the provisions of the bye law for the effective management of the Wakf. If they are not doing the same and resorting to activities which go directly against the tenor and spirit of the bye law, certainly that is a case of mismanagement of the affairs of the Wakf. Whether such mismanagement relates to the conduct of election, administration of the Wakf fund, the conduct of members and office bearers not befitting to their position and other hosts of misdeeds, it is the function and duty of the Wakf Board at first instance to set right things and issue appropriate orders for the proper and benevolent administration of the Wakf. If any such **CRP(WAKF) NO. 359 OF 2015** 18 circumstance arises, any person interested in the Wakf can approach the Wakf Board for appropriate direction. In this case also there is a specific averment in Ext. P6 that the conduct and functioning of the committee is in violation of the provisions of the bye law and that there are instances where the affairs of the Wakf are being mismanaged and therefore the aggrieved persons have to approach the Wakf Board. S.67(1) of the Act also unambiguously point out that the committee shall function under the direction, control and supervision of the Wakf Board and abide by such directions as the Board may issue from time to time. S.67(2) and S.70 of the Act empower the Wakf Board to take action for mal functioning and mismanagement of the affairs of the Wakf. The same Act and the same provision, namely, S.67(4) specifically confers jurisdiction on the Wakf Tribunal to sit in appeal and decide the legality or otherwise of the orders passed by the Wakf Board.” 12. The counsel for the respondents Adv.Sreekumar G Chelur, in answer to the submissions made by the counsel for the revision petitioners, submitted that going by the averments in the plaint, the cause of action for the suit arose on 20.1.2010, the date on which the petitioner Nos.2 and 3 fraudulently got registered defendant society and on 25.1.2012 the date on which petitioner Nos.2 and 3 and **CRP(WAKF) NO. 359 OF 2015** 19 their henchmen threatened the respondents and other members of the Muslim community. His submission is that he is not claiming any relief under section 67 of the Wakf Act, as the grievance of the plaintiff is in respect of the management of the Wakf properties with the bylaw and the Memorandum of Association of the 4[th] respondent committee registered under the Societies Registration Act, which is contrary to the Wakf Deed and the practice followed by the first defendant committee from the date of dedication of the Wakf properties till 20.1.2010, the date on which the society was registered. The registration of the society as the first petitioner is against the intention of Wakf and hence, a suit for declaration against the registration of the first defendant unregistered committee as 4[th] defendant committee registered under the Societies Registration Act, is illegal and improper. In view of that **CRP(WAKF) NO. 359 OF 2015** 20 matter, only a suit for declaration and consequential prohibitory injunction would lie and Section 67 of the Wakf Act, has no application. 13. Admittedly, first defendant, is an unregistered society headed by defendant Nos.2 and 3 as secretary and president respectively. When 4[th] defendant society was formed using a name deceptively similar of that of first defendant with the same office bearers as the Secretary and President and subsequently, got registered the bylaw and the memorandum of association drafted for the 4[th] defendant committee. The bylaw of the 4[th] defendant committee gives membership only to a particular set of persons who are members of another society whereas the first defendant society while his office had given membership to all Sunni muslims members who attained the age of 18 years to be the members of the general body in tune with the Wakf **CRP(WAKF) NO. 359 OF 2015** 21 deed. 14. Sections 67 of the Wakf Act deals with the supervision and supersession of the committee of management. Going by the said section, the Wakf Board is given power to supersede any committee which is in management of any Wakf and if the committee is not functioning properly or satisfactorily or is being mismanaged, the Board is given power to supersede the committee. Going by the facts of this case, it is seen that the first defendant unregistered committee was managing the affairs of the Wakf properties and defendant Nos.2 and 3 were managing the same. There was no dispute or quarrel till the filing of the suit against the first defendant committee or the office bearers. Only on registration of 4[th] defendant society by the defendant Nos.2 and 3, the plaintiffs have objected to the same as **CRP(WAKF) NO. 359 OF 2015** 22 the bylaw as well as Memorandum of Association were against the intention of Wakif and the wakf deed. The plaintiff is not against the mismanagement of the committee of 4[th] defendant. The suit was filed against the registration of 4[th] defendant committee and the declaration sought is that the first defendant Sangham alone is in the administration and management of the plaint schedule wakf and the creation of first defendant society is against law. The decision **Muhammed Kunju (supra)** cited by the counsel for the petitioners is not applicable to the facts of this case, as in the said case a committee was in the management of the Wakf properties and the said committee has mismanaged the Wakf and therefore, the suit was filed against the committee for an order of injunction restraining the defendants from convening the general body after **CRP(WAKF) NO. 359 OF 2015** 23 conducting the elections with their whims and fancies. A Division Bench held that to correct the maladministration and mismanagement of a committee who is in management of the Wakf, the Wakf Tribunal has no power and Board alone has the power under section 67 of the Wakf Act. In this case, the plaintiff is not against the mis- management of the Wakf properties by the committee. The suit is filed when the 4[th] defendant committee was registered under the Societies Registration Act to act against the intention of the Wakf and Wakf deed. So, this is not a case in which Section 67 of the Wakf Act can be invoked as no allegations are alleged against the mis-management of the committee. Hence the decision cited above has no application in this case. 15. The honourable Apex Court in **Rashid Wali Beg v.** **CRP(WAKF) NO. 359 OF 2015** 24 **Farid Pindari [2021(6) KLT 482 (SC)]** held that the words “any dispute, question or other matter relating to any waqf or waqf property”, used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a waqf or waqf property, including the two questions mentioned in Sections 6(1) and 7(1). The words in the second limb of Section 85 namely, “other matter which is required by or under this Act to be determined by a Tribunal”, seek to cover matters which have no relevance to the two questions covered by Section 6(1) and 7(1). Hence any suit concerning a Wakf can be filed before the Wakf Tribunal. 16. Membership to a Juma-ath is a right of every member in Mahal. When the said right is curtailed by the introduction of a bylaw or memorandum of association, a **CRP(WAKF) NO. 359 OF 2015** 25 suit for declaration will definitely lie against the said decision and the registration of society with the said bylaw before the Wakf Tribunal. The Wakf Tribunal, after elaborate consideration of facts and circumstances of the case, held that the constitution of 4[th] defendant committee was not at all legal and first defendant Sangham alone is competent to administer and manage the plaint schedule Wakf and its properties. On a consideration of the entire facts and circumstances of the case and going through the judgment of the Wakf tribunal, we find that there is no illegality or impropriety in the judgment passed by the Tribunal, and hence no interference is warranted. Hence, the CRP is dismissed. **Sd/ S.V.BHATTI, JUDGE** **sd/ BASANT BALAJI, JUDGE** _dl/_