Kerala High Court
Balusseri Mahallu Jama-Ath vs C.Basheer on 27 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
OP (Waqf) NO. 7 OF 2021
AGAINST THE ORDER/JUDGEMENT IN WOS 138/2019 OF Waqf TRIBUNAL,
KOZHIKODE, KOZHIKODE
PETITIONERS/PETITIONERS IN I.A NO.40/21 IN W.O.S NO.138/2019:
1 BALUSSERI MAHALLU JAMA-ATH,
VATTOLI BAZAR P.O, VALUSSERY (VIA), PIN 673 612,
KOZHIKODE DISTRICT REPRESENTED BY ITS SECRETARY.
2 P.ABOOBAKER, AGED 61 YEARS, S/O.AHAMED KUTTY,
PULIYANGAL HOUSE, NANMINDA P.O, BALUSSERI (VIA),
KOZHIKODE DISTRICT.
BY ADVS.
P.A.ABDUL JABBAR (K/000243/1990)-10011
MUHAMMED SHAFFI, SHAHIM BIN AZIZ
RESPONDENTS/RESPONDENTS IN I.A NO.40/21 IN W.O.S 138/19:
1 C.BASHEER, S/O.T.K.ABDULLA, AGED 53 YEARS
PROPRIETOR SHOLA SILKS, BALLUSSERY AMSOM DESOM,
P.O.BALLUSSERY, KOYILANDY TALUK, KOZHIKODE
DISTRICT, PIN-673 612.
2 THE KERALA STATE WAKF BOARD, VIP ROAD, KALOOR,
KOCHI, PIN-682017, REPRESENTED BY ITS CHIEF
EXECUTIVE OFFICER.
3 P.ABDUL RAHIM, S/O.MAMMUHAJI, AGED 70 YEARS,
KALLAMKANDY HOUSE, P.O.BALLUSSERY, KOYILANDY TALUK,
KOZHIKODE DISTRICT, PIN-673 612.
SRI.T.K.SAIDALIKUTTY, SC FOR R2
THIS OP (WAQF) HAVING COME UP FOR ADMISSION ON
27.05.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (Waqf) No.7 of 2021
2
ALEXANDER THOMAS & K.BABU, JJ.
===========================
O.P (Waqf) No.7 of 2021
[arising out of I.A No.40/2021 in W.O.S No.138/2019
on the file of the Waqf Tribunal, Kozhikode]
===========================
Dated this the 27th day of May, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The case set up in the above Original Petition filed under Article
227 of the constitution of India is broadly as follows :
That the 1st petitioner is a Waqf registered with the
2nd respondent Kerala State Waqf Board. The 1 st respondent was its
tenant. When he committed default in payment of rent, W.O.S
No.138/2019 was filed in which Ext.P1 decree was passed. The
Waqf Tribunal allowed the petitioners to recover Rs.12,38,400/-
along with cost of Rs.1,26,255/- from the 1 st respondent. It is further
directed that the amount already in deposit can be withdrawn by
the petitioners/plaintiffs. During the pendency of the suit,
Rs.2,04,000/- was deposited by the 1 st respondent in the Tribunal
towards arrears of rent. The petitioners filed cheque application
C.Q.A No.3/2020 for the release of the said amount. The Cheque
Application was allowed on 23.10.2020. None of the respondents
challenged the said order so far. The 1st respondent filed CRP
(Waqf) No.32/2020 against Ext.P1 and obtained Ext.P3 conditional
stay order. As per Ext.P3, there shall be a stay of Ext.P1 if the
O.P (Waqf) No.7 of 2021
1st respondent deposits a sum of Rs.5,00,000/- before the Tribunal
before 10.12.2020 and if continuing to pay a sum of Rs.50,000/-
every month towards rent. The said conditions were not fulfilled
and hence, there is no stay. In the meantime, he has vacated the
building also. Though as per Ext.P2 Waqf Tribunal ordered to issue
cheque for Rs.2,04,000/- in favour of the petitioners, in view of
Ext.P2 order cheque was not issued. On 06.01.2021, the petitioners
filed Ext.P6 application to release the cheque as ordered in Ext.P2.
In Ext.P6, the 1st respondent, who has deposited the amount did not
file any objection. However, the Waqf Tribunal observed that the
cheque cannot be released unless the petitioners get further
clarification in Ext.P3 order. Ext.P3 is only a conditional stay and
in view of the fact the conditions are not fulfilled, there is no stay at
all. Therefore there is no justifiable reason for not issuing cheque as
ordered in Ext.P2 and for delaying the disposal of Ext.P6. Hence,
the petitioners filed the above Original Petition for directing the
Waqf Tribunal to issue cheque as ordered in Ext.P2 and for passing
urgent orders in Ext.P6 for the release of the cheque.
It is in the light of the above averments and contentions, that the
petitioners have filed the instant Original Petition (Waqf) under Article
227 of the Constitution of India with the following prayers:
"a) Issue direction to the Waqf Tribunal, Kozhikode directing it to
issue cheque for Rs.2,04,000/- in favour of the 1 st petitioner as
ordered in Ext.P2 and to pass urgent orders in Ext.P6 application
to release the cheque immediately.
b) Pass such other orders which this Honourable Court may deem
fit to grant in the facts and circumstances of the case and in the
interest of justice.
O.P (Waqf) No.7 of 2021
c) Allow cost of this proceedings to the petitioner."
2. Heard Sri.P.A.Abdul Jabbar, learned counsel appearing for
the petitioners and Sri.T.K.Saidalikutty, learned Standing Counsel for
the Waqf Board appearing for the 2nd respondent. In the nature of the
orders proposed to be passed in this petition, notices to contesting
respondent Nos.1 & 3 will stand dispensed with.
3. Without getting into the merits of the controversy in any
manner, it is ordered in the interest of justice that in case Ext.P6
application dated 06.01.2021 (I.A No.40/2021) filed before the Waqf
Tribunal in W.O.S No.138/2019, is still pending consideration before the
Waqf Tribunal and no orders have been passed thereon, then the Waqf
Tribunal will immediately take up for consideration Ext.P6 application
and all reasonable endeavors will be taken by the Waqf Tribunal to
ensure that after hearing all the parties concerned including the
petitioners herein and respondents herein, will pass appropriate orders
in accordance with law, so as to dispose of Ext.P6, without much delay.
In view of the lockdown and pandemic issues, we are not stipulating any
strict timeline, but we are apprised that Ext.P6 application is now posted
for consideration before the Tribunal on 11.06.2021 and if that be so, all
O.P (Waqf) No.7 of 2021
efforts should be taken to ensure the disposal of Ext.P6, without any
further delay.
4. The Registry will forward certified copies of this judgment to
the Waqf Tribunal, Kozhikode, who is dealing with W.O.S No.138/2019
as well as to all the three respondents herein by speed post, at the cost of
the petitioners.
With these observations and directions, the above Original Petition
will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
K.BABU, JUDGE
vgd
O.P (Waqf) No.7 of 2021
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DECREE DATED 16.07.2020
PASSED BY THE WAQF TRIBUNAL IN W.O.S
NO.138/2019
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 23.10.2020
PASSED BY THE WAQF TRIBUNAL IN C.Q.A
NO.3/2020 IN W.O.S NO.138/2019.
EXHIBIT P3 TRUE COPY OF THE STAY ORDER DATED
27.10.2020 PASSED IN C.R.P.(WAQF)
NO.32/2020
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 15.5.2021
PASSED BY THE WAQF TRIBUNAL IN W.O.A
NO.3/2019
EXHIBIT P5 TRUE COPY OF THE PETITION DATED 22.02.2021
SUBMITTED BY THE 1ST RESPONDENT IN C.R.P
(WAQF) NO.32/2020 IN I.A 1/21
EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED
06.01.2021 IN I.A NO.40/2021 FILED BEFORE
THE WAQF TRIBUNAL IN W.O.S NO.138/2019.
