Islamic Cultural Society vs The Special Deputy Collector
2021 Latest Caselaw 4426 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942

                      WP(C).No.22342 OF 2020(P)


PETITIONER:

               ISLAMIC CULTURAL SOCIETY
               VIDYANAGAR, KASARGOD, REPRESENTED BY ITS GENERAL
               SECRETARY, SRI.MUJEEB THALANGARA, AGED 46 YEARS,
               S/O. LATE MAJEED THALANGARA, THALANGARA P.O.,
               KASARGOD,PIN-671 122

               BY ADVS.
               SRI.K.SHIBILI NAHA
               SMT.A.LOWSY

RESPONDENTS:

      1        THE SPECIAL DEPUTY COLLECTOR, LA (NH)
               COMPETENT AUTHORITY, NATIONAL HIGHWAY AUTHORITY OF
               INDIA, KASARGOD,PIN-671 121

      2        THE AUTHORISED OFFICER,
               OFFICE OF THE SPECIAL THAHASILDAR, LAND ACQUISITION ,
               ANANGOOR, KASARGOD,PIN-671 123

      3        THE KERALA STATE WAQF BOARD,
               VIP ROAD ,KALOOR, KOCHI-682 017, REPRESENTED BY ITS
               CHIEF EXECUTIVE OFFICER

      4        THE OFFICER IN CHARGE KERALA STATE WAQF BOARD,
               KERALA STATE WAQF BORD, EXTENSION COUNTER,
               1ST FLOOR, FALMA RESIDENCY, THAYALANGADY, KASARGOD,
               PIN-671 121

               R1-2 BY SMT MABLE C KURIAN, GOVERNMENT PLEADER
               R3-4 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.22342 OF 2020                  2




                                    JUDGMENT

The Islamic Cultural Society, the petitioner herein, is a Trust formed in the

year 1964 with the objective of catering to the welfare of the students of

Government College, Kasaragod and other incidental activities. The Trust was

later registered under the provisions of the Societies Registration Act, 1860.

2. An item of property owned by the petitioner and having an extent of

95.2 sq.m in Re-Sy No.254/2 (after resurvey 254/4) of Kasargod village forming

part of the property acquired by the petitioner on the strength of Ext.P5 document

was acquired for the purpose of four laning of National Highway No.17. The

petitioner approached the 1st respondent and submitted Ext.P3 request

demanding that the compensation be disbursed to them. However, by Ext.P7

order, the request was rejected holding that as the property belongs to an Islamic

Religious institution, the compensation is to be paid through the Wakf Board as

mandated under Rule 94A of the Wakf (Amendment) Rule, 2007. The contention

of the petitioner was that the land acquired is not that of the Masjid or of the

religious institution and that it belonged exclusively to the society.

3. Being aggrieved, the petitioner is before this Court seeking to quash

Ext.P7 and for a further direction to the respondents 1 and 2 to release the

compensation awarded pursuant to acquisition of the property to the petitioner.

They have also sought for a declaration that the property acquired and covered by

Ext.P5 document is not a wakf property.

4. A Counter affidavit has been filed by the 1st respondent. It is stated

that the documents were perused by the 1st respondent and it was after

concluding that the property belongs to a religious institution that Ext.P7 decision

was taken.

5. The Chief Executive of the Wakf Board has filed a counter affidavit

for and on behalf of the respondents 3 and 4. Paragraph No.3 of the counter

affidavit is extracted below for easy reference.

"3. Since the mosque named Noushad Mosque was there in

one of the property of the Trust, notices were issued to the officer in charge of the Board at Kasargode by the Land Acquisition Authority as provided under Section 91 of the Waqf Act, 1995. However, an enquiry was conducted by the Board in the said matter and it is found that the Trust was formed in the year 1964. While constituting the trust no property was dedicated or earmarked to achieve the objects of the Trust. Later two properties were purchased by the Trust as per Document Nos.1370/1967, 1371/1967 of S.R.O Kasargode from one Mr.Abdulla. The properties covered by the above documents were executed in favour of the Trust. The mosque named Noushad Mosque is situated in the property covered by document No.1371/1967. The property acquired by the National Highway Authority is covered by document No.1370/1967. Under these circumstances, the property covered by document No.1371/1967 can only be treated as waqf property under sub section 3 of Section 40 of the Waqf Act by issuing notices to the

authority by whom the Trust had been registered. Therefore, the properties covered by Ext.P5 document cannot be registered as a waqf. It is further submitted that steps will be taken to register the Noushad Mosque covered by document No.1371/1967 as provided under section 40 of the Waqf Act, 1995."

6. I have heard Sri. K. Shibili Naha, the learned counsel appearing for

the petitioner, Sri. Mable C. Kurian, the learned Government Pleader and Sri.

T.K.Saidalikutty, the learned standing counsel appearing for the Kerala State Wakf

Board.

7. The only question is whether the 1st respondent was justified in

rejecting the claim on the ground that the property acquired and covered under

Ext.P5 document was bound to be treated as a wakf and the compensation has to

be routed through the Wakf Board. The respondents 3 and 4 have unequivocally

stated in their counter that the property covered by Ext.P5 document is exclusively

owned by the petitioner and that the same is not bound to be registered as a wakf

as provided under Section 40 of the Wakf Act, 1995. They have also stated that

the property covered under document No.1371/1967 wherein the Noushad

Mosque is situated is liable to be registered under the Act.

8. In that view of the matter, the order passed by the 1st respondent

and produced as Ext.P7 cannot be sustained. It is held that the property acquired

is not a wakf property as defined under the Act. The respondents 1 and 2 are

directed to release the compensation for the land acquired to the petitioner

expeditiously, at any rate, within a period of one month from the date of receipt of

a copy of this judgment.

9. The petitioner shall produce a copy of the writ petition along with a

copy of this judgment before the concerned respondent for further action.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE IAP

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE TRUST DEED HIGHLIGHTING THE AIMS AND OBJECTIVES OF THE TRUST

EXHIBIT P2 TRUE COPY OF THE INFORMATION RECEIVED FROM THE 4TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DATED 10.7.2020

EXHIBIT P3 TRUE COPY OF THE REQUEST DATED 10.10.2019 SUBMITTED BY THE CHAIRMAN,ISLAMIC CULTURAL SOCIETY BEFORE THE 1ST RESPONDENT

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION NO.A2.LAC NO.38/KASARGOD DATED 28.7.2020 ISSUED BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT

EXHIBIT P5 TRUE COPY OF THE DOCUMENT NO.1370/1967 HAVING AN EXTENT OF 9 CENTS OF R.S NO.254/2

EXHIBIT P6 TRUE COPY OF THE DOCUMENT NO.1371 OF

EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS NO.LAC NO.38/KASARGODE VILLAGE DATED 14.9.2020 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO.32947/2019 DATED 11.3.2020

RESPONDENTS' EXHIBITS:

NIL