Kerala High Court
Moideenkutty Kolloli vs Kunnathiyil Kasim on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
OP (WAKF) NO. 4 OF 2021
OS 9/2020 OF WAKF TRIBUNAL, KOZHIKODE, KOZHIKODE
PETITIONER/S:
MOIDEENKUTTY KOLLOLI, AGED 66 YEARS
S/O. MOYINKUTTY, BAITHUL MASHAHIK, SIYAMKANDAM,
PULLIKKAL-673 637
BY ADV M.KRISHNAKUMAR
RESPONDENT/S:
1 KUNNATHIYIL KASIM,
AGED 60 YEARS
S/O. ALAVI HAJI, AMBALIL HOUSE, SIYAMKANDAM,
PULLIKKAL-673 637
2 KUNHAMMADKUTTY POYYILI
AGED 55 YEARS
KOZHISSERI HOUSE, SIYAMKANDAM, PULLIKKAL-673 637
3 AVARANKUTTY KUNDERI,
AGED 66 YEARS
S/O. MAMMAD, VARUVEEDU HOUSE, SIYAMKANDAM,
PULLIKKAL-673 637
4 ABDUL RAZAK.T.C.
AGED 54 YEARS
THACHARAKAVIL HOUSE,PERIYAMBALAM PULLIKKAL-673 637
5 YASAR ARAFATH, AGED 38 YEARS
S/O. MUHAMMED, THAZHATHODI HOUSE, SIYAMKANDAM,
PULLIKKAL-673 637
OP (WAKF) NO. 4 OF 2021
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6 MUHAMMED POYILI, AGED 70 YEARS
S/O. ALAVI, AMBALIL HOUSE, SIYAMKANDAM, PULLIKKAL-
673 637
7 V.P.MOIDEENKUTTY,AGED 58 YEARS
S/O. ABDURAHIMAN HAJI, PUTHILAYI HOUSE,
PERIYAMBALAM, PULLIKKAL-673 637
8 MUHAMMED MANNOLI, AGED 67 YEARS
S/O. ALAVI, THAZHATHE KALATHIL HOUSE, OTTUPARA,
PULLIKKAL-673 637
9 ABDU RAZAK.K.,AGED 37 YEARS
S/O. UNNIMMAD, KARAKUTTASSERI HOUSE, SIYAMKANDAM,
PULIKKAL-673 637
10 MUSTHAFA EDAMBATTU
AGED 40 YEARS
S/O.HASSAIN, PALATHICHALIL HOUSE, SIYAMKANDAM,
PULLIKKAL-673 637
11 STATE OF KERALA,REP BY DISTRICT COLLECTOR,
COLLECTORATE, UP HILL, MALAPPURAM DISTRICT-676 505
12 DISTRICT REGISTRAR AND REGISTRAR OF SOCIETIES,
OFFICE OF THE DISTRICT REGISTRAR, CIVIL STATION,
MALAPPURAM-676 505
13 THE KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP
ROAD, KALOOR, ERNAKULAM-682 017
14 SIYAMKANDAM MASJIDU SUNNIYEEN COMMITTEE,
REP BY GENERAL SECRETARY, UNNIMAMMAD.K., S/O.
SAIDALAVI, AGED 50 YEARS, KALPPAKASSERI HOUSE,
SIYAMKANDAM, PULLIKKAL-673 637
OP (WAKF) NO. 4 OF 2021
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15 UNNI MAMMAND.K.,SAIDALAVI, GENERAL SECRETARY,
SIYAMKANDAM MASJID SUNNIYEEN
COMMITTEE,KALPPAKASSERI HOUSE, SIYAMKANDAM,
PULLIKKAL-673 637
16 MUHAMMED KUTTY.K.,AGED 68 YEARS
S/O. ALAVI HAJI, PRESIDENT, SIYAMKANDAM MASJID
SUNNIYEEN COMMITTEE,SAMEER MANZIL, PERIYAMBOLAM,
PULLIKKAL-673 637
BY ADVS.
SMT.LIGEY ANTONY
SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
SHRI.JAWAHAR JOSE
SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD
OTHER PRESENT:
SC JAMSHEED HAFIZ, ADV SARUN RAJAN FOR JAWAHAR
JOSE FOR R15 AND R16., GP ARUN AJAY SHANKAR
THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (WAKF) NO. 4 OF 2021
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ORDER
(Dated this the 29th day of October 2021)
BASANT J.,
Aggrieved by Ext.P10 order passed by the Waqf
Tribunal, Kozhikode refusing to hear the maintainability of
the suit as a preliminary issue is challenged in this O.P.
(Waqf).
2. The 'Siyamkandam Masjiddusunnia' is a Waqf
registered under Section 36 of the Waqf Act 1995. The
muthavalli of the Waqf is the 14 th respondent herein. An
election was conducted to the office bearers of the
registered society and the petitioner was declared as the
President and respondent Nos.1 to 10 as their office bearers
at the General Body meeting. The list of the elected
OP (WAKF) NO. 4 OF 2021
members were submitted before the 12 th respondent and the
same was objected by the 16th respondent.
3. The 12th respondent conducted an enquiry into the
complaint made by the 16th respondent and held that the list
of members submitted by the petitioner along with
respondent Nos.1 to 10 were genuine and could be
accepted. The 12th respondent, thereafter passed Ext.P3
order.
4. Ext.P3 was challenged before this court in W.P.(C)
No.15108 of 2019, which was dismissed by the learned
Single Judge leaving open the right to challenge Ext.P3
before the Tribunal or any Civil Court. After the judgment
in W.P.(C) No.15108 of 2019, respondent Nos.14 to 16
filed O.S. No.9 of 2020 before the Waqf Tribunal,
Kozhikode, for declaring that the list of office bearers
submitted by the 3rd plaintiff on 4.1.2019 before the 13th
defendant for the term 2019-2020 is the true and real list of
office bearers of the society bearing Reg.No.264 of 1986
for the said term and declaring further that the list of office
OP (WAKF) NO. 4 OF 2021
bearers submitted by the 4th defendant for the period 1987-
1988 to 2015-2016, 2016-2017, 2017-2018, 2018-2019 and
2019-2020 respectively on 16.3.2015, 13.9.2016, 4.1.2017
and 7.1.2019 are incorrect and not binding up on the
plaintiff society. There were other prayers also. The Waqf
Tribunal framed seven issues. But the question of
maintainability was not framed. So, the defendant Nos.1 to
11 filed a petition as I.A. No.622 of 2020 in the suit to
frame an issue of maintainability also and the Waqf
Tribunal allowed the same as per order dated 13.1.2021.
After the order was passed regarding the framing of issue
on maintainability, the petitioner filed I.A. No.66 of 2021
to hear the question of maintainability as a preliminary
issue before proceeding with the suit.
5. The Tribunal, as per Ext.P10 order, closed the said
I.A. as the Tribunal was of the opinion that the question of
maintainability of issues was already framed. The
petitioner challenges the said decision on the ground that if
the question of maintainability is not decided initially, the
OP (WAKF) NO. 4 OF 2021
same is prejudicial to their contention that the suit is not
maintainable. The learned counsel for the petitioner also
contends that the decision was reported in Moosakutti Y C
@ Moosa Moulavi and others v. Liwa-Ul Huda Islamic
Trust and others [2021(1) KHC 218], wherein the
parameters of the jurisdiction of the Waqf Tribunal was
enumerated is also not looked into by the Waqf Tribunal in
dismissing the maintainability petition. The learned
counsel prays that Ext.P10 be set aside and Tribunal may
be directed to re-consider Ext.P9 on its merits.
6. On the other hand, the learned counsel for the 13 th
respondent submits that the question regarding the
maintainability can be considered by the Tribunal on its
merits. The learned counsel for the other contesting
respondents submitted that there is no infirmity in Ext.P10
order passed by the Waqf Tribunal, Kozhikode.
7. The first prayer in the Writ Appeal is to declare that
Ext.P5 suit filed before the Waqf Tribunal, Kozhikode by
respondent Nos.14 to 16 is not maintainable due to inherent
OP (WAKF) NO. 4 OF 2021
lack of jurisdiction.
8. We have gone through Exts.P5, P7, P9 and P10
and we are of the firm opinion that Ext.P10 order is cryptic
and is not passed taking into consideration of the
contentions raised in Ext.P10 regarding the maintainability.
The Waqf Tribunal ought to have gone into the question
whether the issue regarding the maintainability has to be
decided as a preliminary issue.
In the result, this Original Petition is allowed, setting
aside Ext.P10 order and the Waqf Tribunal is directed to re-
consider Ext.P9 on merits, within a period of two months
from the date of receipt of a certified copy of this order.
sd
S.V.BHATTI
JUDGE
sd
BASANT BALAJI,
JUDGE
dl/
OP (WAKF) NO. 4 OF 2021
APPENDIX OF OP (WAKF) 4/2021
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF
REGISTRATION OF THE WAKF DATED
16.06.2003
EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE OF
REGISTRATION DATED 3.09.1986 UNDER THE
SOCIETIES REGISTRATION ACT 1860
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED
24.05.2019 OF THE 12TH
RESPONDENT/DISTRICT REGISTRAR OF
SOCIETIES
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
9.07.2019 IN WPC NO.1 5108/2019 OF THE
HIGH COURT OF KERALA
EXHIBIT P5 TRUE COPY OF THE PLAINT IN OS 9/2020 ON
THE FILE OF THE WAKF TRIBUNAL KOZHIKODE
EXHIBIT P6 TRUE COPY OF THE ISSUES FRAMED BY THE
WAKF TRIBUNAL KOZHIKODE ON 10.12.2020 IN
OS 9 OF 2020
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13.01.2021
IN IA NO.622/2020 IN NOS 9/2020
EXHIBIT P8 TRUE JUDGMENT DATED 26.11.2020 REPORTED
IN 2021 (1) KHC 218
EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT AN
APPLICATION IN IA 66/2021 IN OS 9/2020
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 13.1.2021
IN IA NO.2021
