Y.C. Moosakutti @ Moosa Mouli v. Liwa-ul Huda Islamic Trust and Others (C.R.P(Wakf).458 of 2016)

**CR** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE T.R.RAVI** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **C.R.P(WAKF).No.458 OF 2016** **AGAINST THE JUDGMENT & DECREE DATED 25.06.2016 IN O.S.NO.69/2011 OF WAKF TRIBUNAL, KOZHIKODE.** ## **REVISION PETITIONERS/ PLAINTIFFS:** **1 Y.C. MOOSAKUTTI @ MOOSA MOULAVI, AGED 53 YEARS, S/O. ABOOBACKER, YAKKIPARAMBAN, CHEMABAYIKUNNATH HOUSE, KEEZPARAM AMSOM, DESOM, ERANAD TALUK, MALAPPURAM-673639. 2 RUKKIYA, AGED 45 YEARS, W/O. Y.C. MOOSAKUTTI @ MOOSA MOULAVI, YAKKIPARAMBAN, CHEMABAYIKUNNATH HOUSE, KEEZPARAM AMSOM, DESOM, ERANAD TALUK, MALAPPURAM-673639. 3 LIWA-UL HUDA EDUCATIONAL AND BENEVOLENCE TRUST, REPRESENTEDBY ITS MANAGING TRUSTREE/CHAIRMAN, Y.C. MOOSAKUTTI @ MOOSA MOULAVI BY ADVS. SRI.BABU KARUKAPADATH SMT.AMRIN FATHIMA SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SMT.M.A.VAHEEDA BABU SHRI.P.U.VINOD KUMAR** ## **RESPONDENTS/ DEFENDANTS:** **1 LIWA-UL HUDA ISLAMIC TRUST, REP. BY Y.C. ALIKOYA HAJI,S/O. Y.C. ABOOBACKER, YAKKIPARAMBAN,CHEMABAYIKUNNATH HOUSE, KEEZPARAMBAMSOM, DESOM, ERANAD TALUK, MALAPPURAM-673 639.** **C.R.P(Wakf).458 of 2016 - 2 -** **2 LIWA-UL HUDA ISLAMIC TRUST GENERAL SECRETARY, Y.C. IBRAHIM MASTER,S/O. MUHAMMED KUTTY, CHEMABAYIKUNNATH HOUSE, KEEZPARAMB AMSOM, DESOM, ERANAD TALUK, MALAPPURAM-673639.** - **3 LIWA-UL HUDA ISLAMIC TRUST TRESURER, C.P. ASHRAF MUSLIYAR, S/O. ABDULLA, AGED 44 YEARS, CHEMABAYIKUNNATH HOUSE, KEEZPARAMB AMSOM, DESOM, ERANAD TALUK, MALAPPURAM-673639.** - **4 THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, KALOOR, COCHIN, ERNAKULAM.** **R2 & R3 BY ADV. SRI.S.VINOD BHAT R2 & R3 BY ADV. SRI.LEGITH T.KOTTAKKAL R4 BY ADV. SRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD.** **THIS CIVIL REVISION PETITION (WAKF ACT) HAVING BEEN FINALLY HEARD ON 26-11-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **C.R.P(Wakf).458 of 2016** **CR** **- 3 -** **K.Vinod Chandran & T.R.Ravi, JJ. -------------------------------C.R.P (Wakf) No.458 of 2016-C. ---------------------------------** ## **ORDER** **Dated this the 26[th] day of November, 2020** **K.Vinod Chandran,J.** **The revision is from the judgment of the Waqf** **Tribunal dismissing the suit filed by the plaintiffs/revision petitioners. The suit was one for declaration, mandatory injunction and recovery of possession. The plaint schedule properties consisted of two items having an extent of 4½ and 3¾ cents in R.S.No.101/3-4 in Kizhuparamba Village. Admittedly, there is a Mosque and a Madarassa situated in the properties, the management of which is the bone of contention between the parties in the suit. The 1[st] and 2[nd] plaintiffs are husband and wife and the 3[rd] plaintiff is said to be a Trust in management of the Mosque and Madarassa. The defendants are alleged to have taken over the management illegally. The 1[st] plaintiff claimed that the properties belonged exclusively to him and that the construction was from own funds expended by the 1[st] plaintiff.** **2. The plaintiffs claimed recovery of possession and** **mandatory(sic)injunction to abstain from the management of** **- 4 -** **C.R.P(Wakf).458 of 2016** **the Mosque and the Madrassa, against the defendants. The defendants were alleged to have taken over illegal possession of the properties and its management on 30.10.2008. The defendants contested the matter. The Tribunal found that the plaint schedule properties were purchased by the 1[st] plaintiff; however, the construction of the Mosque and Madrassa were not from own funds. Having opened both to the public; the Mosque for prayers and the Madrassa for imparting education to the Muslim children of the locality, there is a waqf created and the plaintiffs cannot claim absolute right, title and ownership over the properties. On the basis of the evidence adduced, the mandatory injunction and recovery of possession sought for were rejected.** **3. When the revision was argued before us, we raised a preliminary question as to the maintainability of the suit before the Waqf Tribunal, going by the decision of the Hon'ble Supreme Court in** _**Punjab Waqf Board v. Sham Singh Harike [(2019) 4 SCC 698].**_ **Admittedly, the Waqf is not one included in the list of Auqafs published under Section 5 of the Waqf Act, 1995 (hereinafter referred to as 'the Act') or registered under Section 37. The dispute is on management, which is not an issue possible of** **- 5 -** **C.R.P(Wakf).458 of 2016** **resolution under the Waqf Act, which makes it incumbent upon the plaintiffs to approach a Civil Court for redressal of their grievances and the reliefs sought for, going by the cited precedent, cannot be agitated before the Tribunal.** **4. Sri. Babu Karukapadath, learned Counsel for the petitioners submitted that in fact the suit was filed before the Civil Court and after completion of evidence it was found that the dispute to be resolved is as to whether the plaint schedule properties are waqf properties or not. It is hence the Civil Court declined jurisdiction and referred the matter to the Waqf Tribunal. It is pointed out that the Hon'ble Supreme Court has in** _**W.B.Waqf Board v. Anis Fatima Begum [(2010) 14 SCC 588]**_ **held that all matters pertaining to Waqfs should be filed, in the first instance, before the Waqf Tribunal constituted under Section 83 of the Waqf Act, 1995 and should not be entertained by the Civil Court. This was followed in** _**Akkode Jumayath Palli Paripalana Committee v. P.V.Ibrahim Haji**_ **[** _**(2014) 16 SCC 65**_ **] wherein the Waqf Tribunal was considering a suit for injunction restraining the defendants from interfering with the administration, management and peaceful enjoyment of the Mosque and Madrassa run by it, which is identical to** **- 6 -** **C.R.P(Wakf).458 of 2016** **the reliefs prayed for in the present suit. Even if Section 83 is not availed of, Section 85 bars jurisdiction of Civil Court in respect of any dispute, question or other matter relating to any waqf. This is an absolute bar of jurisdiction of the Civil Court, is the contention raised.** **5. We have looked at the judgment passed and the same indicates that though the Tribunal found that the plaint schedule properties were purchased by the 1[st] petitioner with his own funds and in his name, the construction made was not exclusively from his funds. The Tribunal found that the Mosque and the Madrassa were constructed with funds also given by an Arab national and his wife and the same was carried out by the joint effort of the 1[st] petitioner, the defendants and the general public as also the two Arab citizens. Having opened the Mosque and Madrassa to the public for prayers and for imparting education to the Muslim children in the locality, there is no doubt that the same constitute a waqf and that the plaintiffs have no right to claim absolute title and ownership over the plaint schedule properties. Based on the evidence led by the defendants and the absolute lack of it, on the part of the plaintiffs, it was found that the Mosque and the Madrassa were managed by the defendants and the 1[st]** **- 7 -** **C.R.P(Wakf).458 of 2016** **plaintiff had attended the general body meeting of the 1[st] defendant and subscribed his signature evidencing his presence. The suit, hence, stood dismissed.** **6. We are not examining the evidence nor even attempting an exercise of looking into whether the findings of the Tribunal are based on some evidence. In our opinion, that is the limited jurisdiction of the revisional jurisdiction exercised by us, which unlike an appeal does not permit re-appreciation of evidence. We are more concerned with the preliminary objection raised. We have to deal with** _**Anis Fatima Begum**_ **and** _**Akkode Jumayath Palliparipalana Committee**_ **in the context of** _**Sham Singh Harike**_ **. The Hon'ble Supreme Court in** _**Sham Singh Harike**_ **re-visited the issue of jurisdiction of the Tribunal and affirmed the view of a co-ordinate Bench in** _**Ramesh Gobindram v. Sugra Humayun Mirza Waqf**_ **[** _**(2010) 8 SCC 726**_ **].** _**Ramesh Gobindram**_ **, the first in the line of decisions of co-ordinate benches, above referred, held that “** _**There is ... nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act**_ **” (sic para 32). In** _**Anis Fatima Begum**_ **,** _**Ramesh Gobindram**_ **was distinguished relying on the words,** **- 8 -** **C.R.P(Wakf).458 of 2016** **'any dispute, question or other matters relating to a waqf or waqf property', which words as found in Section 83 were held to be of very wide connotation taking in anything relating to a waqf or waqf property.** _**Akkode Jumayath Palliparipalana Committee**_ **, as was argued by the learned Counsel, considered identical prayers as in the present case which was agitated before the Tribunal.** _**Akkode Jumayath Palliparipalana Committee**_ **followed** _**Anis Fatima Begum**_ **, which, however, was held by** _**Sham Singh Harike**_ **to be not in accord with** _**Ramesh Gobindram**_ **. It was reiterated that Section 85 relates to bar of jurisdiction of Civil Courts and the same is confined only to those matters “** _**which are required to be determined by the Tribunal under this Act**_ **”. Section 83 was found to be providing only for the constitution of the Tribunal and the procedure; including bar of appeal from the order of the Tribunal subject only to revision by the High Court. We have to follow the latest judgment of the Hon'ble Supreme Court.** **7.We also have to notice that the suit was filed before the amendment to the Waqf Act carried out in 2013. The Waqf Act has been amended in 2013 and we are referring to the Amended Act, the provisions of which are more or less similar, at least with respect to the powers conferred** **- 9 -** **C.R.P(Wakf).458 of 2016** **on the Tribunal. The provisions when they are different, by virtue of the amendment, has been noticed by us, specifically in the relevant context.** **8. Looking at the Waqf Act, the question whether a property is constituted as a waqf or not can be decided by the Tribunal under Section 6, Section 7 and Section 40 of the Act. Section 7 has the nominal heading 'Power of Tribunal to determine disputes regarding Auqafs' and specifically refers to such disputes arising after the commencement of the Act. Section 6 also relates to disputes regarding Auqafs and the power is similar to Section 7, but obviously to resolve such disputes arising prior to the commencement of the Act. Both under Sections 6 and 7 the dispute or question that can be adjudicated by the Tribunal is whether a particular property specified as a Waqf property in the list of Auqafs is a waqf property or not. Even before amendment there was a list spoken of in the provision, which after amendment is spoken of as a 'list of Auqafs'. Hence, the property has to be listed under Chapter II, which speaks of 'Survey of Auqafs'(Wherever 'Auqafs' is used after 2013, prior to amendment it was 'Waqfs'). The learned Counsel argued that there is no Survey Commissioner notified for a long period, without which there cannot be an inclusion in the list. In this context we notice Section** **- 10 -** **C.R.P(Wakf).458 of 2016** **37 where the Board has to statutorily maintain a register of Auqafs. Similar to Chapter II, on entering the details of the properties in the register, the Board has to forward it to the Land Record Office for the purpose of making necessary entries in the land records. Section 40 confers power on the Board to collect information regarding any property which it has reason to believe is a waqf property and if any question arises, whether a particular property is waqf or not, then the Tribunal is conferred with the jurisdiction to adjudicate the same. In the present case, the properties are neither included in the list under Chapter II nor is it registered under Section 37. There is also no action pending by the Board** _**suo-motu**_ **or on any application to register the properties. The jurisdiction of the Tribunal is confined to Auqafs figuring in the list or those which are included or sought to be included in the register, maintained under Section 37, by the Board. We also have to notice that the plaintiff does not have a case that the properties constitute a waqf and the pleadings indicate that they claim absolute title and interest over the properties with right of management as a 'Trust'. It is the case of the defendants that the property is a waqf which, however, has not been sought to be registered with** **- 11 -** **C.R.P(Wakf).458 of 2016** **the Board under Section 37.** **9. Other than the above, the jurisdiction of the Tribunal under the Act can be found from the following provisions. Section 32(3), confers power on the Tribunal to set aside a scheme of management settled under clause (d) or directions issued by the Board under clause (e) of sub-section (2), at the instance of any person interested in the waqf or affected by such settlement or directions. Section 33(4) provides an appeal to the Tribunal by a Mutawalli or other person aggrieved by an order passed by the Chief Executive Officer [CEO] for recovery of any amount or property due to a waqf. Section 35 provides for a conditional attachment of the property of a Mutawalli or any other person on an application by the CEO. Section 38(7) provides an appeal to the Tribunal by any Executive Officer or a member of his staff against the order of removal or dismissal. Section 39(3) enables the Board to approach the Tribunal with respect to any building or other** **place which was being used for religious purpose, instruction or charity and which use has ceased; for recovery and for directions as contained in sub-section (4). Section 40(2) as we earlier saw, provides for adjudication of a question or dispute whether a property is** **- 12 -** **C.R.P(Wakf).458 of 2016** **a waqf or not when it is registered or sought to be registered by the Board under Section 37 as also the question whether it is a Sunni or Shia waqf. Sub-section (4) of Section 40 also confers the Tribunal with the power to revoke or modify an order passed by the Board in pursuance of a notice issued under sub-section (3) for registration under Section 37.** **10. Section 48(2) provides for an application to the Tribunal challenging the order of a Board for recovery of any amount from Mutawalli or any other person based on an Auditor's report. The powers conferred on the Tribunal under Section 51 are omitted by Act 27 of 2013 as a consequence of omitting the provision enabling a sale of waqf property. Section 52(4) provides a challenge against the order of the Collector for recovery of immovable property on application made by the Board on allegation of improper alienation. Section 54(4) provides for an application by the CEO to the Tribunal for an order of eviction of encroachers on any waqf property. Section 64(4) enables a Mutawalli to file an appeal to the Tribunal aggrieved by the orders of the Board for removal under sub-section (1). Section 67(4) provides an appeal by any person against the supersession of a Committee of** **- 13 -** **C.R.P(Wakf).458 of 2016** **Management, made by the Board. Section 67(6) by the second proviso provides an appeal by any member of the Committee of Management against an order of removal made by the Board. Section 69(3) by the first proviso, provides an appeal to the Tribunal against any scheme framed by the Board for administration of a waqf or removal of a Muttawalli; by any person aggrieved. Section 73(3) enables any Bank or other person to file an appeal against an order made by the CEO for payment of any amount standing to the credit of the Waqf with such Bank of other person. Section 83(2) enables any Mutawalli, person interested in the waqf** **or any other person to approach the Tribunal for determination of any question or dispute relating to any waqf; which again is confined to any order made under the Act or Rules. Section 94 enables the Board to apply to the Tribunal, on failure of a Mutawalli to discharge his duties, to pay to the Board or such other person authorized to carry out such duties the amounts necessary for performance of such duties. The Tribunal is also empowered under Section 94 (2) to make any orders in an application filed by the Board alleging failure on the part of the Muttawalli to discharge any obligation imposed on him. 11. These are the only matters which are required** **- 14 -** **C.R.P(Wakf).458 of 2016** **to be determined by the Tribunal by or under the Act and as held in** _**Syam Singh Harike**_ **, the jurisdiction of the Civil Court is not totally or completely ousted. We do not see any power conferred on the Tribunal to adjudicate the dispute as to whether a property is a waqf property or not unless it is included in the list as spoken of in Chapter II or entered or sought to be entered in the register maintained under Section 37 by the Board. We hence find the Tribunal to have no jurisdiction to entertain the suit and set aside the judgment. We make it clear that this does not preclude the petitioners from approaching the Civil Court. The Board also could** _**suo motu**_ **or on application of defendants, proceed under Section 37, in which event the jurisdiction will be with the Tribunal. This judgment does not stand against such consideration. As on the date when the suit was filed and referred to the Tribunal, there was a lack of jurisdiction, which is the ground of rejection of this revision and the consequential rejection of the suit. We desist from remanding the matter for the purpose of returning the application/plaint since there was no challenge to the order made by the Civil Court referring the matter to the Tribunal, which order however will not act as** _**res judicata**_ **insofar as any fresh suit filed before** **C.R.P(Wakf).458 of 2016 - 15 -** **the Civil Court as per our findings.** **The Civil Revision Petition would stand rejected with the above observations. Parties are left to suffer their respective costs.** **==> picture [47 x 11] intentionally omitted <==** **----- Start of picture text -----**<br> vku/-<br>**----- End of picture text -----**<br> **==> picture [210 x 163] intentionally omitted <==** **----- Start of picture text -----**<br> Sd/-<br>K.VINOD CHANDRAN<br>JUDGE<br>Sd/-<br>T.R.RAVI<br>JUDGE<br>//True copy//<br>**----- End of picture text -----**<br>