Muhammed Basheer vs Kerala State Wakf Board
2021 Latest Caselaw 1402 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR.JUSTICE S.V.BHATTI

                                     &

           THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

      THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                         WP(C).No.11790 OF 2020(W)


PETITIONER/S:

       1        MUHAMMED BASHEER
                AGED 39 YEARS
                S/O.HAMSA, THAIVALAPPIL HOUSE, P.O.VALAKKULAM,
                VALAKKULAM AMSOM DESOM, TIRURANGADI TALUK,
                MALAPPURAM DISTRICT, PIN-676508.

       2        ABDURAHIMAN,
                AGED 40 YEARS
                S/O.HYDROSE, PAREDATH HOUSE, P.O.VALAKKULAM,
                VALAKKULAM AMSOM DESOM, TIRURANGADI TALUK,
                MALAPPURAM DISTRICT, PIN-676508.

       3        FIROSKHAN,
                AGED 32 YEARS
                S/O.HYDER, VEDIPPURAKKAL HOUSE, P.O.VALAKKULAM,
                VALAKKULAM AMSOM DESOM, TIRURANGADI TALUK,
                MALAPPURAM DISTRICT, PIN-676508.

                BY ADV. SRI.R.RAMADAS

RESPONDENT/S:

       1        KERALA STATE WAKF BOARD
                REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD,
                KALOOR, KOCHI-17.

       2        THE CHIEF EXECUTIVE OFFICER,
                KERALA STATE WAKF BOARD, V.I.P.ROAD, KALOOR, KOCHI-17.

       3        THE DIVISIONAL WAKF OFFICER,
                WAKF BOARD REGIONAL OFFICER, K.S.E.B. BUILDING, KOZHIKODE
                ROAD, MANJERI, MALAPPURAM, PIN-676121.
 W.P.(C) No.11790/2020

                                    -2-


       4       ABDU RAHIMAN,
               S/O.MUHAMMED, PAREDATH HOUSE, SECRETARY, HIDAYATHUL
               ATHFAL SUNNI MADRASSA COMMITTEE, P.O.VALAKKULAM,
               TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676508.

       5       THE SECRETARY,
               HIDAYATHUL ATHFAL MADRASSA COMMITTEE, P.O.VALAKKULAM,
               TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676508.

               R1-2 BY ADV. SHIRAZ BAWA FOR SHRI.T.K.SAIDALIKUTTY, SC,
               WAQF BOARD
               R4-5 BY ADV. SRI.IMAM GRIGORIOS KARAT
               R4-5 BY ADV. SRI.N.KRISHNA PRASAD
               R4-5 BY ADV. SRI.N.ANAND

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.11790/2020

                                   -3-




                           JUDGMENT

Dated this the 14th day of January 2021

Bechu Kurian Thomas, J.

Permission for construction of a building was granted under

Rule 98(1) of the Kerala Wakf Rules by the 3 rd respondent after

expressing satisfaction that the building is in a dilapidated

condition. The permission so granted is challenged by the writ

petitioners on the grounds of violation of principles of natural

justice and lack of jurisdiction. Wakf Board is in seisin of the case

initiated by the writ petitioners as O.P.No.197/2014 and when such a

matter is pending on the judicial side of the Wakf Board, orders in

the nature of Ext.P9 ought not to have been passed on the

administrative side.

2. Petitioners alleged that they have initiated O.P.No.197/2014

before the Kerala State Wakf Board seeking for a direction to frame W.P.(C) No.11790/2020

a scheme for the administration and management of Hidayathul

Athfal Madrassa, which is a registered Wakf bearing No.B4-

2312/RA. In the said original petition filed before the Wakf Board,

an interim order dated 11.12.2014 in I.A.No.43/2014 was issued

directing the respondents not to make any construction in the Wakf

property without obtaining prior sanction from the Board. Thus, it

is the claim of the petitioners that the Wakf Board is considering the

issue on the judicial side. While the said issue is under

consideration on the judicial side, petitioners allege that on the

basis of a compliant filed by the 4 th respondent, permission was

granted by the Board on the administrative side to make new

constructions as per Ext.P9 order. It is contended that Ext.P9 order

is illegal and passed without authority.

3. Counter affidavit has been filed by respondents 4 and 5

contending that there was no violation of principles of natural

justice as the petitioners had no right to claim any opportunity of W.P.(C) No.11790/2020

hearing and also that there was no interdiction against the Board

for exercising its jurisdiction on the administrative side, especially

in view of Ext.P3 order permitting constructions, subject to

obtaining orders from the Board. The respondents contend that

Ext.P9 was passed in view of the conditions stipulated in Ext.P3

order and prayed that the impugned order ought to be sustained.

4. We have heard Adv.R.Ramadas for the petitioners,

Adv.T.K.Saidalikutty for the Wakf Board as well as Adv.N.Krishna

Prasad for respondents 4 and 5.

5. It is seen that disputes are pending before the Wakf Board

on the judicial side as seen from Ext.P1 and the 4 th respondent in

this writ petition is the respondent in O.P.No.197/2014. By Ext.P3

order in O.P.No.197/2014 before the Wakf Board, it was directed that

the respondent shall not make any construction in the Wakf without

obtaining prior sanction of the Board. Since it is pointed out that

the said order is still continuing, it is essential that, before grant of W.P.(C) No.11790/2020

such a permission, the original petitioners in O.P.No.197/2014

before the same Wakf Board are also heard. Since Ext.P9 admittedly

was passed without hearing the writ petitioners, the said order

cannot be said to be valid in the eye of law. Accordingly, Ext.P9 is

set aside.

6. Though Ext.P9 is set aside on the ground of violation of

principles of natural justice, it is essential that the said matter be

reconsidered by the first respondent within three months from the

date of receipt of a copy of this judgment, after hearing the

petitioners as well as the contesting respondents. Since it is

brought to the notice of this Court that O.P.No.197/2014 is also

pending consideration, we are of the view that it would be ideal in

the interest of all concerned, that the said original petition also, be

disposed of within the said time limit of three months.

7. While we set aside Ext.P9 order, we direct respondents 1

and 2 to pass fresh orders on the application for permission to W.P.(C) No.11790/2020

construct a building on the Wakf property and also attempt, with all

earnestness, to dispose of O.P.No.197/2014 pending before the said

Wakf Board, all within three months from the date of receipt of a

copy of this judgment.

In the result, the original petition is allowed with the above

directions.

Sd/-

S.V.BHATTI

JUDGE

Sd/-

BECHU KURIAN THOMAS

JUDGE

jjj W.P.(C) No.11790/2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION O.P.NO.197/2014 DATED DECEMBER 2014 BEFORE THE WAKF BOARD.

EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT DATED DECEMBER, 2014 FILED BY THE 1ST PETITIONER HEREIN IN SUPPORT OF I.A.NO.43/14 BEFORE THE WAKF BOARD.

EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED 11.12.14 IN I.A.NO.43/14 IN O.P.NO.197/14 WAKD BOARD.

EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENTS 1 TO 3 THEREIN DATED 14.9.2015.

EXHIBIT P5 TRUE COPY OF THE REPORT DATED 3.8.2019 FILED BY ADVOCATE COMMISSIONER K.K.SAIDALAVI.

EXHIBIT P6 TRUE COPY OF THE NOTE SUBMITTED BY THE 2ND RESPONDENT ON THE ADMINISTRATIVE SIDE OF THE WAKF BOARD.

EXHIBIT P7 TRUE COPY OF THE DECISION DATED 27.5.2020 BY THE WAKF BOARD.

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 02.06.2020 ISSUED BY THE CHIEF EXECUTIVE OFFICER TO THE DIVISIONAL OFFICER, WAKF BOARD, MALAPPURAM.

EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS DATED 05.6.2020 ISSUED BY THE DIVISIONAL OFFICER.

EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 11.12.2014 TO THE RESPONDENTS 4 AND 5 ISSUED BY THE WAKF BOARD.

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 12.12.2014 TO THE SECRETARY OF THENNALA GRAMA PANCHAYATH BY THE WAKF BOARD.

W.P.(C) No.11790/2020

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 20.12.2014 ISSUED TO THE 4TH RESPONDENT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4 A TRUE COPY OF THE REPORT DATED 21.12.2015 PLACED BY RESPONDENT NO. 2 BEFORE THE RESPONDENT NO.1

EXHIBIT R4 B TRUE COPY OF THE AGREEMENT DATED 25.02.2011 SETTLMENT

EXHIBIT R4 C TRUE COPY OF THE CERTIFICATE OF REGISTRATION

EXHIBIT R4 D TRUE COPY OF THE CERTIFICATE OF REGISTRATIONENGLISH TRANSLATION OF EXT. R4 C

EXHIBIT R4E TRUE COPY OF THE ORDER DATED 25.02.2011 IN I.A.

NO.621/2011 IN A.S. NO. 4/2010

EXHIBIT R4F TRUE COPY OF REPRESENTAION FILED BY MUTHAVALLI OF THE REGISTERED WAKF BEFORE THE KERALA STATE WAKF BOARD BY FILING APPLICATION ON 19.05.2015

EXHIBIT R4 G TRUE COPY OF THE BUILDING PERMIT WAS GRANTED ON 25.10.2014

EXHIBIT R4H TRUE COPY OF THE ACCOUNTS SUBMITTED BY FIFTH RESPONDENT FOR THE LAST NINE YEARS BEFORE THE KERALA STATE WAKF BOARD

EXHIBIT R4I TRUE COPY OF THE INSPECTION REPORT