IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
CRP(WAKF) NO. 20 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 14.3.2022 IN IA NO.850/21
IN WOS 33/2021 OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONERS/RESPONDENTS 1 TO 14 & 16 TO
21/DEFENDANTS 1 TO 14 & 16 TO 21:
1 NEELESHWARAM THARBIYATHUL ISLAM SABHA
REP.BY ITS PRESIDENT, C.K ABDUL KHADER,
NEELESHWARAM P.O, NEELESHWARAM AMSON DESOM,
HOSDURG, KASARGOD., PIN - 671314
2 NEELESHWARAM THARBIYATHUL ISLAM SABHA
REPTD.BY ITS SECRETARY
T. SUBAIR, NEELESHWARAM P.O, NEELESHWARAM AMSON
DESOM, HOSDURG, KASARGOD., PIN - 671314
3 C.K ABDUL KHADER, AGED 56 YEARS
S/O.MOIDU HAJI N.P, ALLEGED PRESIDENT,
NEELESHWARAM THARBIYATHUL ISLAM SABHA,
NEELESHWARAM AMSON DESOM, HOSDURG, KASARGOD., PIN
- 671314
4 T.SUBAIR, AGED 48 YEARS
S/O. KUNHABDULLA, ALLEGED SECRETARY, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
5 C.K ABDUL SALAM, AGED 65 YEARS
S/O.MOIDU HAJI N.P, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
6 K.SELU, AGED 55 YEARS
S/O.MUHAMMED KUNHI, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
CRP (Wakf) 20/2022
2
7 T.MUHAMMED KUNHI, AGED 63 YEARS
S/O.KARIYIL MOIDEEN HAJI, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD, PIN - 671314
8 C.H ABDUL RASHEED HAJI, AGED 58 YEARS
S/O.KALLAYI AAMU, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
9 H.S AMEERUDHEEN, AGED 65 YEARS
S/O.FATHERS NAME NOT KNOWN, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD., PIN - 671314
10 A. MUNEER, AGED 43 YEARS
S/O. FATHERS NAME NOT KNOWN, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD., PIN - 671314
11 K. MUSTHAFA, AGED 65 YEARS
S/O. FATHERS NAME NOT KNOWN, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD., PIN - 671314
12 M. KUNHAMU HAJI, AGED 68 YEARS
S/O.ABDUL RAHIMAN, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
13 K. SHANEER, AGED 32 YEARS
S/O. MOIDU, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
14 C.H MUHAMMED KUNHI, AGED 45 YEARS
S/O.IBRAHIM, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314.
CRP (Wakf) 20/2022
3
15 T.ABDUL RAHMAN, AGED 60 YEARS
S/O.KALLAI AHAMMED HAJI, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD., PIN - 671314
16 E. MUHAMMED SHAFI, AGED 60 YEARS
S/O.ABDUL RAHMAN, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
17 RAMARAM SALAM HAJI, AGED 61 YEARS
S/O. KALLAI AHAMED HAJI, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD., PIN - 671314
18 ADUKKAM MUHAMMED KUNHI, AGED 58 YEARS
S/O.FATHERS NAME NOT KNOWN, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD, PIN - 671314.
19 C.H MUHAMMED KUNHI, AGED 64 YEARS
S/O. IBRAHIM HAJI, ALLEGED MEMBER, NEELESHWARAM
THARBIYATHUL ISLAM SABHA , NEELESHWARAM AMSON
DESOM, HOSDURG TALUK, KASARGOD., PIN - 671314
20 M. MUSTHAFA, AGED 56 YEARS
S/O. FATHERS NAME NOT KNOWN, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA ,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD., PIN - 671314
BY ADVS.
BABU KARUKAPADATH
M.A.VAHEEDA BABU
P.U.VINOD KUMAR
ARYA RAGHUNATH
VAISAKHI V.
T.M.MUHAMMED MUSTHAQ
AJWIN P LALSON
KARUKAPADATH WAZIM BABU
P.LAKSHMI
AISWARYA ANN JACOB
CRP (Wakf) 20/2022
4
RESPONDENTS/PETITIONERS & RESPONDENTS 15 & 22 IN THE
IA/PLAINTIFFS & DEFENDANTS 15 & 22:
1 NOUFAL E.P, AGED 37 YEARS, S/O. ABDUL RAHIMAN,
SAMEERA MANZIL, NEELESHWARAM AMSON DESOM,
NEELESHWARAM P.O, HOSDURG TALUK, KASARGOD., PIN
- 671314
2 MUHAMMED IRSHAD. C., AGED 28 YEARS
S/O. ABDULLA, A.K HOUSE, NEELESHWARAM AMSON
DESOM, NEELESHWARAM P.O, HOSDURG TALUK,
KASARGOD., PIN - 671314
3 NABEER. N, AGED 38 YEARS, S/O. MEHMOOD, NABEENA
MANZIL, NEELESHWARAM AMSON DESOM, NEELESHWARAM
P.O, HOSDURG TALUK, KASARGOD., PIN - 671314
4 FAIZAL. P., AGED 32 YEARS,
S/O. AHAMMEDKUNHI, BISMILLAH HOUSE,
NEELESHWARAM AMSON DESOM, NEELESHWARAM P.O,
HOSDURG TALUK, KASARGOD., PIN - 671314
5 SHAMSHEER. P., AGED 36 YEARS
S/O. ABDUL RAHOOF, SHAMNA MANZIL, NEELESHWARAM
AMSON DESOM, NEELESHWARAM P.O, HOSDURG TALUK,
KASARGOD., PIN - 671314
6 P.K USMAN, AGED 63 YEARS
S/O. FATHERS NAME NOT KNOWN, ALLEGED MEMBER,
NEELESHWARAM THARBIYATHUL ISLAM SABHA,
NEELESHWARAM AMSON DESOM, HOSDURG TALUK,
KASARGOD., PIN - 671314
7 THE KERALA STATE WAQF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP
ROAD, KALOOR, ERNAKULAM., PIN - 682017
BY ADVS.
K.M.FIROZ
M.SHAJNA
P.C.MUHAMMED NOUSHIQ
SRI.JAMSHEED HAFIZ
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
29.04.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRP (Wakf) 20/2022
5
C.S.DIAS & C.JAYACHANDRAN, JJ.
------------------------------------
CRP (Wakf) No.20 of 2022
-------------------------------------
Dated this the 29th day of April, 2022
ORDER
Jayachandran, J.
1. This revision is directed against the Order of the Wakf Tribunal, Kozhikode dated 14.3.2022 in I.A No.850/2021 in W.O.S No. 33/2021. As per the impugned Order, the injunction sought for by respondents 1 to 5 herein to restrain the revision petitioners herein from administering and managing the Wakf was dismissed. However, the Tribunal directed supervision of the administration and management of the wakf by the Managing Committee (first revision petitioner herein) by a person appointed by the Kerala State Wakf Board, particularly with respect to the accounts. The Tribunal further directed that new construction works or public functions intended to be conducted by the Committee shall be done CRP (Wakf) 20/2022 6 only with the prior sanction of the Wakf Board, with intimation to the Tribunal. The revision petitioners - Members of the Managing Committee of the Wakf - are highly aggrieved about the above directions.
2. Sri.Babu Karukapadath, learned counsel for the revision petitioners, vehemently argued that the directions of the Wakf Tribunal are wholly beyond the jurisdiction of the Tribunal, more so when the plaintiffs/petitioners have failed to establish a prima facie case in their favour. The subject suit was filed challenging election to the Managing Committee of the Wakf, for want of compliance of the necessary legal formalities. It is on the strength of such allegation that I.A No.850/21 was filed seeking an injunction to restrain defendants 1 to 21 in the suit from administering and managing the Wakf. Having not found a prima facie case and balance of convenience in favour of the plaintiffs/ petitioners, the proper course was to dismiss the CRP (Wakf) 20/2022 7 injunction application. Instead, the Tribunal over stepped its jurisdiction to grant reliefs in the form of directions, which are not even sought for by the petitioners/plaintiffs. The direction to appoint a person to directly supervise the administration and management of the Wakf is nothing but a clear fetter on the legitimate rights and powers of the duly elected Committee, which can hardly be countenanced in law. That apart, the Tribunal has virtually delegated the powers, if any, of the Wakf Board to a person, directed to be nominated by the Board, which course is surely impermissible. On such premise, the learned counsel seeks to set aside the directions of the Wakf Tribunal in its Order dated 14.3.2022.
3. Sri.K.M.Firoz, learned counsel for the respondents 1 to 5 (plaintiffs/petitioners in the suit) resisted the above contentions of the revision petitioners, harping on Section 32 of the of the Wakf Act, 1995, which deals with the CRP (Wakf) 20/2022 8 powers and functions of the Wakf Board. According to the learned counsel, the directions impugned are in perfect harmony and in consonance with the powers envisaged in Section 32 of the Wakf Act, wherefore, no interference, whatsoever, is warranted by this Court. On facts, the learned counsel would seek to sustain the directions by pointing out that there exists every chance of misappropriation of funds of the Wakf for purposes unconnected with the Wakf, unless the management and administration are supervised. Learned counsel pointed out that all what has been dismissed by the learned Tribunal is the interim relief and the challenge to the election to the Managing Committee of the Wakf is very much at large in the pending suit.
4. Sri.Jamsheed Hafiz, learned Standing Counsel appearing for the Wakf Board, toed in line with respondents 1 to 5, so as to sustain the directions impugned, again relying upon Section 32 of the Wakf Act.
CRP (Wakf) 20/2022 9
5. A perusal of Section 32 of the Wakf Act would amplify that the Wakf Board have the power of general superintendence over all Auqaf. It is in fact the duty of the Board, going by Section 32, to ensure that the Auqaf under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes of such Auqaf. Sub-section (2) to Section 32 details serially the power of the Board, which includes inter alia the power to give directions for administration of the Wakf and to ensure that income and property of the Wakf are applied to the objections/purposes of such Wakf.
6. The power of superintendence/supervision of the Wakf Board over the Auqaf is, therefore, unassailable per force of the Act, de hors any direction from the Wakf Tribunal. The limited compass of controversy is with respect to the CRP (Wakf) 20/2022 10 alleged delegation of such powers to a person nominated by the Wakf Board as directed in the impugned order. Here, we find force in the submission made by the learned counsel for revision petitioners. The power of superintendence/ supervision is vested with the Wakf Board and, therefore, the direction that the person nominated by the Board shall directly supervise the administration and management of the Wakf by the Managing Committee cannot be sanctioned by law. Here, we take stock of the apprehension of the learned counsel for the revision petitioners that the nominated person may assume overwhelming powers so as to frustrate even the well meaning actions of the Managing Committee. We are in agreement with the contention of the learned counsel for the revision petitioners that such nominated person can only report the relevant activities to the Wakf Board, so as to enable the Board to supervise the administration and management of the Wakf by the Managing Committee. CRP (Wakf) 20/2022 11
7. Similarly, we find it difficult to approve the direction of the learned Tribunal that the Managing Committee shall seek prior sanction of the Wakf Board even for conducting public functions. Sri.K.M.Firoz, learned counsel appearing for respondents 1 to 5 (plaintiffs/petitioners in the suit) contended that such direction is quite necessary, as otherwise, extravagant expenditure will be incurred under the guise of conducting public functions. We are not in agreement with the learned counsel in this regard. Superintendence over financial matters is very much envisaged in Section 32. It specifically enjoins the Board to ensure that the income of the Auqaf is applied and spent only for the objects and purposes of such Auqaf. Thus, ample power is conferred on the Board to prevent any extravagant expenditure. To seek prior permission for conducting public functions, even for preventing the supposed extravagansa, appears to be an unreasonable CRP (Wakf) 20/2022 12 fetter on the powers of the Managing Committee. In fact, the object can be achieved de hors the impugned direction by virtue of the powers conferred by Section 32 of the Act. So also, we do not deem it proper and necessary to intimate the Tribunal about any new construction, expenditure incurred etc, for, the scope of interference of the Tribunal is only on the event of a dispute, and not with respect to the day- today affairs of administration of the Wakf.
8. In the light of the above discussion and finding the aforementioned fetter imposed on the Managing Committee unreasonable, we allow this revision in part and modify the operative portion of the impugned order as follows:
"The Wakf Board will supervise the administration and management of respondent no.1 Committee, especially, with respect to the accounts. The Board can nominate a person to collect and report the relevant CRP (Wakf) 20/2022 13 information/input, so as to enable the Board to carry out the supervision effectively. New construction works, if any, shall be done with the prior permission of the Wakf Board."
Sd/-
C.S.DIAS JUDGE Sd/-
C.JAYACHANDRAN JUDGE jg