Kerala High Court
Abdullakutty vs Kerala State Waqf Board on 12 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
CRP(WAKF) NO. 43 OF 2022
AGAINST THE ORDER/JUDGMENTWOS 28/2021 OF WAKF TRIBUNAL,
KOZHIKODE
PETITIONERS:
1 ABDULLAKUTTY,
AGED 63 YEARS
S/O. HYDROS, SECRETARY, PAVARATTY TOWN JUMA
MASJID, REG. NO. 6077/RA, PAVARATTY, PAVARATTY
AMSOM DESOM, THRISSUR DISTRICT , PIN -680507
2 PAVARATTY TOWN JUMA MASJID,
AGED 76 YEARS
REPRESENTED BY PRESIDENT, P.K. HUSSAIN, S/O.
MOOSA, AGED 76, PULICHARAM VEETIL KARAATTU,
PAVARATTY PANCHAYATH, P.O. PAVARATTY, PAVARATTY
AMOSM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT,
PIN - 680507
3 P.K. HUSSAIN,
AGED 76 YEARS
S/O. MOOSA, PULICHARAM VEETIL KARAATTU,
PAVARATTY PANCHAYATH, PRESIDENT, PAVARATTY TOWN
JUMA MASJID, REG. NO. 6077/RA, PAVARATTY,
THRISSUR - 680507
BY ADVS.
K.M.FIROZ
M.SHAJNA
RESPONDENTS:
1 KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
KALOOR, KOCHI - 682017
CRP(Wakf) No.43 of 2022
2
2 ASHRAF,
AGED 55 YEARS
S/O. P.K. HAMSA, KANIYAMATHARA HOUSE, P.O.
PAVARATTY, PAVARATTY AMOSM DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT, PIN -680507
3 SALIM,
AGED 51 YEARS
S/O. P.K. HAMSA, KANIYAMATHARA HOUSE, P.O.
PAVARATTY, PAVARATTY AMOSM DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT , PIN -680507
4 NASEEMA,
AGED 46 YEARS
D/O. P.K. HAMSA, KANIYAMATHARA HOUSE, P.O.
PAVARATTY, PAVARATTY AMOSM DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT, PIN-680507
BY ADV JAMSHEED HAFIZ
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRP(Wakf) No.43 of 2022
3
A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
......................................................
CRP(Wakf) No.43 of 2022
................................................................
Dated this the 12th day of April, 2023
JUDGMENT
Mohammed Nias.C.P. J.
The revision petitioners were plaintiffs 2 and 3 and supplemental
plaintiff 4 in WOS 28 of 2021 on the files of the Wakf Tribunal,
Kozhikode. They are aggrieved by the impugned order passed by the
Tribunal dismissing the suit on the ground that the prayer of the
plaintiffs to get eviction cannot be allowed in a suit.
2. Learned counsel for the petitioner submits that since they are
seeking eviction of defendants 3 to 5, who are the tenants from the
plaint schedule property, which is a Wakf property, the suit is perfectly
maintainable before the Tribunal under Section 83 (1) of the Wakf Act,
1995. He also relies on the judgment of the Supreme Court in Rashid
Wali Beg v. Farid Pindari and others [(2021) 6 KLT 482].
CRP(Wakf) No.43 of 2022
Accordingly, he prayed for setting aside the order of the Wakf Tribunal
and remitting the matter back to the Tribunal for fresh consideration
on merits.
3. We find from the judgment dated 17.5.2022 of the Wakf
Tribunal, Kozhikode that the suit was dismissed, holding that the
plaintiff has not succeeded in proving that the original first defendant,
who was an encroacher liable to be evicted from the plaint schedule
shop room without conducting an enquiry by the Chief Executive
Officer as contemplated under Section 54(1) of the Wakf Act, 1995. On
the said ground, the Tribunal held that plaintiffs are not entitled to get
a decree for eviction as prayed for.
4. We have heard the petitioners' learned counsel as well as the
respondents.
5. Having heard the learned counsel on either side and on
perusing the records, we hold the suit to be maintainable before the
Tribunal in view of the decision of the Supreme Court noted above
regarding the maintainability of the petition under Section 83 of the
Wakf Act before the Wakf Tribunal. Accordingly, we set aside the
judgment in WOS 28 of 2021 dated 17.5.2022 and remit the matter for
CRP(Wakf) No.43 of 2022
fresh consideration before the Tribunal. Parties are directed to appear
before the Tribunal on 23.05.2023.
The CRP(Wakf) is allowed as above.
Sd/- A.K. JAYASANKARAN NAMBIAR,
JUDGE
Sd/- MOHAMMED NIAS C.P.,
JUDGE
dlk/12.04.2023
CRP(Wakf) No.43 of 2022
APPENDIX OF WP(C) 4455/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 15-11-2022
IN E.P. 3254/CR BEFORE THE KERALA STATE
WAQF BOARD.
Exhibit P2 TRUE COPY OF NOTIFICATION DATED 2-02-
2023 PUBLISHED BY THE 4TH RESPONDENT IN
THE NOTICE BOARD OF THE 5TH RESPONDENT.
Exhibit P3 THE RELEVANT PAGES OF OLD BYE-LAW OF
NETTOOR MAHAL MUSLIM JAMA-ATH.
Exhibit P4 TRUE COPY OF NEW BYE-LAW OF NETTOOR
MAHAL MUSLIM JAMA-ATH.
Exhibit P5 TRUE COPY OF THE OBJECTION DATED 06-02-
2023 FILED BEFORE 5TH RESPONDENT.
Exhibit P6 TRUE COPY OF JUDGMENT DATED 11-07-2019
OF THIS HON'BLE COURT IN O.P. (WAKF)
16/2019
Exhibit P7 COPY OF RECEIPT DATED 08-02-2022 ISSUED
BY THE OFFICER OF THE WAKF
Exhibit P8 COPY OF NOTICE DATED 21-07-2022
PUBLISHED IN THE NOTICE BOARD OF THE
WAKF
Exhibit P9 COPY OF LETTER NO.NMJ 114/2022-23 DATED
23-07-2022 ISSUED BY THE WAKF
Exhibit P10 THE TRUE COPY OF VOTERS LIST OF WARD
NUMBER 6
RESPONDENT ANNEXURES
ANNEXURE R4 (a) True copy of the order dated 17/11/2022
OF THE 1st RESPONDENT
ANNEXURE R4(b) True copy of the O.A. No. 72/2022 dated
22/11/2022 of the Honourable WAKF
Tribunal , Kozhikode
ANNEXURE R4 (c) True copy of the election notice Dated
CRP(Wakf) No.43 of 2022
2/2/2023 by the Returning Officer
ANNEXURE R4(d) True copy of the nomination form issued
by the Returning officer
ANNEXURE R4 (e) True copy of the said notice dated
14/2/2023 issued by the Returning
officer
ANNEXURE R4 (f) True copy of the final candidate list
dated 22/2/2023
