T.P. Cheriya Koya Thangal v. Marutheri Ashraf and Others

1 W.P.(C) No.23700 of 2024 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 ``` ``` WP(C) NO. 23700 OF 2024 ``` ## **`PETITIONERS:`** - **`1 T.P.CHERIYA KOYA THANGAL, AGED 48 YEARS S/O.IMBICHI, AGED 48 YEARS, THADAVANTE PARAMBATH HOUSE, CHEEKKONNU WEST, P.O.KAKKATTIL, KOZHIKODE, PIN – 673507.`** - **`2 KUNHABDULLA, AGED 60 YEARS, S/O.SOOPPY, NARANGOLI HOUSE, TINUR.P.O, KAKKATTIL. KOZHIKODE, PIN – 673507.`** ``` BY ADVS. THUSHARA.V C.VATHSALAN K.RAKESH ROSHAN ``` ## **`RESPONDENTS:`** - **`1 MARUTHERI ASHRAF, AGED 54 YEARS, S/O.AMMAD, MARUTHERI HOUSE, P.O.WEST CHEEKKONNU, (VIA) KAKKATTIL, NARIPATTOM AMSOM, CHEEKKONNU DESOM, KOZHIKODE DISTIRCT., PIN – 673507.`** - **`2 NAMBIATHAMKUND JUMA-ATH PALLI MAHALLU COMMITTEE, REP BY SECRETARY KARUKULANGARA KUNHABDHULLA AGED 60 YEARS, REP.BY SECRETARY, KARUKULANGARA KUNHABDULLA, S/O.MOIDU, CHEEKKONNU WEST, P.O.KAKKATTIL, KOZHIKODE ., PIN - 673507`** - **`3 KARUKULANGARA KUNHABDULLA AGED 60 YEARS, S/O.MOIDU, SECRETARY, NAMBIATHAMKUND JUMA-ATH PALLI MAHALLU COMMITTEE, CHEEKKONNU WEST, P.O.KAKKATTIL, KOZHIKODE,`** 2 W.P.(C) No.23700 of 2024 ``` PIN – 673507. ``` - **`4 NAMBIATHAMKUND JUMA-ATH PALLI MAHALLU COMMITTEE REP. BY PRESIDENT IBRABIM AGED 58 YEARS, S/O.KUNHABDULLA HAJI, VATTAKKUTIADI HOUSE, TINUR, KAKKATTIL, KOZHIKODE, PIN – 673507.`** - **`5 AMAD, AGED 58 YEARS,S/O.IBRAHIM, KIZHAKKANDIYIL HOUSE, P.O.TINUR, KAKKATTIL, TREASURER, KOZHIKODE., PIN – 673507.`** - **`6 THIRUVATTERI KUNHAHAMMED HAJI, AGED 82 YEARS, S.O.PALLI, THIRUVATTERI HOUSE, CHEEKKONNU WEST,P.O.KAKKATTIL, KOZHIKODE, PIN – 673507.`** - **`7 KERALA STATE WAKF BOARD, V I P ROAD, KALOOR, KOCHIN, REP. BY CHIEF EXECUTIVE OFFICER, PIN – 682017.`** ``` BY SRI. JAMSHEED HAFIZ, STANDING COUNSEL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.07.2024, THE COURT ON 17.07.2024 DELIVERED THE FOLLOWING: ``` 3 W.P.(C) No.23700 of 2024 ## **JUDGMENT** ## **Harisankar V.Menon, J** . The petitioners, respondents 6 and 7 in Ext.P7 order in I.A.No.362 of 2023 of the 7[th] respondent herein-Kerala State Waqf Board (for short, the ‘Waqf Board’) have filed this writ petition under Article 226 of the Constitution of India, praying for the issue of a writ of certiorari to quash Exts.P7 and P8 orders of the Waqf Board issued illegally, without sanction of law and without considering the evidence, facts and circumstances of the case. There is also a further prayer that this Court be pleased to declare Exts.P1 and P3 as not maintainable before the Waqf Board. 2. The short facts necessary for the disposal of this writ petition are as follows: The petitioners were the office bearers of the 2[nd] respondent Waqf, as the Secretary and Treasurer from 2013 to 2018, during which period the Committee renovated and constructed a new Mosque in the property of the Mahallu. The 1[st] petitioner during 2018, renounced from working as the Secretary of the Waqf on account of personal reasons. Pursuant to the election to the Mahallu Committee during 2022, respondents 2 to 5 herein have been elected as the new office bearers of the Mahallu. It is 4 W.P.(C) No.23700 of 2024 contended that the 1[st] respondent who claims to be a Mahallu Committee member and the grandson of a former Muthavalli of the Mahallu has been on inimical terms on account of which he has filed various civil suits before the civil courts. It is further pointed out that the 1[st] respondent herein filed O.P.No.201 of 2022 before the 7[th] respondent Board against the petitioners herein who were the former office bearers of the Mahallu as also against the present office bearers praying for a full fledged enquiry alleging the mismanagement and misappropriation of money, by the respondents therein. A copy of O.P.No.201 of 2022 is produced as Ext.P1 in the writ petition and the objection statement filed by the petitioners herein who are respondents 6 and 7 in the said original petition, is produced as Ext.P2. It is further pointed out that the 1[st] respondent filed I.A.No.362 of 2023 in O.P.No.201 of 2022 before the 7[th] respondent Board, praying for a direction to the respondents therein to produce books of accounts etc., before the Waqf Board. Ext.P3 is the copy of the said I.A. filed before the 7[th] respondent and the counter affidavit filed by the petitioners herein is produced as Ext.P4. It is further pointed out that the petitioners produced the statement of accounts for the period from January, 2013 to November 2018 as evidenced by Ext.P5 along 5 W.P.(C) No.23700 of 2024 with the statement of the bank account from 2013 to 2024 as Ext.P6. The petitioners contended that even after producing such documents, the 7[th] respondent has issued Ext.P7 dated 30.04.2024 by which the respondents therein have been directed to produce the books of accounts, documents and such other documents before the Board within one month from the date of the order, failing which it is threatened that the respondents therein shall be prosecuted under the provisions of Section 61(b) of the Waqf Act, 1995 (for short, the ‘Waqf Act’). The petitioners also pointed out that the 7[th] respondent Board issued another order Ext.P8 along with the covering letter dated 27.5.2024, received by the petitioners on 14.06.2024, without notice to the petitioners making certain changes in Ext.P7 order on account of some typographical errors. 3. It is in the above circumstances that the petitioners have filed the present writ petition under Article 226 of the Constitution of India, challenging Exts.P7 and P8 orders issued by the 7[th] respondent Board. 4. We have heard the learned counsel appearing for the petitioners and the learned Standing Counsel appearing for the 7[th] respondent Waqf Board. 6 W.P.(C) No.23700 of 2024 5. The learned counsel for the petitioners has contended that 7[th] respondent Board is not justified in issuing Exts.P7 and P8 orders, that insofar as the petitioners are not at present the Mahallu Committee members, they are not liable to be prosecuted under Section 61 of the Waqf Act, that the 7[th] respondent did not take on accounts Exts.P5 and P6 produced before the Board before issuing the impugned orders at Exts.P7 and P8, that the petition filed by the 1[st] respondent was highly belated and ought to have been rejected on the ground of limitation and that the Board is not justified in issuing Ext.P8 order by recalling the earlier order at Ext.P7 without notice to the petitioners. On the other hand, the learned Standing Counsel for the 7[th] respondent Board points out that the present writ petition under Article 226 of the Constitution is not maintainable insofar as the petitioners have an effective alternate remedy prescribed under Article 83(2) of the Waqf Act. It is also pointed out that the orders issued by the 7[th] respondent are perfectly in tune with the provisions of the statute and that the same does not require any interference at the hands of this Court. 6. We have considered the rival contentions and perused the relevant documents. It is seen that the petitioners are challenging 7 W.P.(C) No.23700 of 2024 Exts.P7 and P8 orders issued by the 7[th] respondent Board. Exts.P7 and P8 have been issued on the interlocutory application filed by the 1[st] respondent herein. By the said orders, the 7[th] respondent Board had directed the respondents therein which includes the petitioners herein to produce certain documents before the Board, failing which prosecution steps are threatened under Section 61(b) of the Waqf Act. As rightly contended by the learned Standing Counsel for the 7[th] respondent Board, Section 83(2) provides for a remedy by way of an application to the Waqf Tribunal against any order made under the provisions of the Waqf Act by any person who is aggrieved by the same. Admittedly, Exts.P7 and P8 are the orders issued with respect to the provisions of the Waqf Act pursuant to the petitions filed by the 1[st] respondent herein. Therefore, there is an effective alternative remedy provided under Section 83(2) of the Waqf Act against Exts.P7 and P8 orders. 7. It is the settled principle of law that the writ jurisdiction under Article 226 of the Constitution of India is only a discretionary jurisdiction and that this Court is not to entertain a writ petition ordinarily and is to leave it to the statutory forum to adjudicate the same. The writ jurisdiction can be entertained only when the writ petition seeks to enforce fundamental rights or when there is 8 W.P.(C) No.23700 of 2024 a violation of the principles of natural justice or when the order of the proceedings is wholly without jurisdiction and in a situation where the vires of the enactments are challenged, as held by the Apex Court in **Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others [(1998) 8 SCC 1]** . This principle has been reiterated in a catena of judgments by the Apex Court and most recently in **George Sarally v. Excise and Taxation Officer[2023 KLT online 1073 (SC)]** . In such circumstances, we are of the considered opinion that the present writ petition challenging Exts.P7 and P8 orders issued by the 7[th] respondent Board is not to be entertained under Article 226 of the Constitution of India. In such circumstances, we dismiss the writ petition, leaving open the right of the petitioners to approach the Tribunal under Section 83(2) of the Waqf Act, if so advised. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **HARISANKAR V. MENON, JUDGE** ln 9 W.P.(C) No.23700 of 2024 ## **`APPENDIX OF WP(C) 23700/2024`** ``` PETITIONERS’ EXHIBITS: ``` ``` EXHIBIT P1 TRUE COPY OF THE PETITION BY WAY OF O.P.NO. 201/2022 BEFORE THE WAKF BOARD BY THE 1ST RESPONDENT DATED 10/8/2022. ``` ``` EXHIBIT P2 TRUE COPY OF THE OBJECTION STATEMENT FILED BY THE PETITIONERS HEREIN AS RESPONDENTS 6 AND 7 DATED 20/9/2023 IN O.P.NO. 201/2022. ``` ``` EXHIBIT P3 TRUE COPY OF THE PETITION DATED 1-11-2023 WITH AFFIDAVIT IN I.A.NO.362/2023 FILED BY THE 1ST RESPONDENT IN O.P.NO.201/2022 ``` ``` EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT DATED1/3/2024 FILED BY THE PETITIONER HEREIN AS RESPONDENTS 6 & 7 IN I.A.NO.362 OF 2023. ``` ``` EXHIBIT P5 TRUE COPY OF THE STATEMENT DATED 1/3/2024 OF ACCOUNT FOR THE PERIOD FROM JANUARY 2013 TO NOVEMBER 2018 FILED BY PETITIONERS IN I.A.NO.362/2023 IN O.P.NO.201/2022. ``` ``` EXHIBIT P6 TRUE COPY OF THE RELEVANT PORTION OF THE STATEMENT OF TRANSACTION OF THE ACCOUNT OF MAHALLU COMMITTEE MAINTAINED AT KERALA GRAMIN BANK NARIPATTA BRANCH FROM 24/8/2013 TO 1/5/2024. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30/4/2024 BY THE WAKF BOARD IN I.A.NO.362/23. EXHIBIT P8 TRUE COPY OF THE FRESH ORDER DATED 30/4/2024 INTIMATED BY WAY OF LETTER DATED 27/5/2024 RECEIVED BY THE PETITIONER ON 14/6/2024. ```