Kerala High Court
Vellarangott K. Ammad vs Kavumthara Kavil Mandankav ... on 23 May, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
O.P.(Wakf)No.14 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
O.P.(WAKF) NO.14 OF 2024
ORDER DATED 09.04.2020 IN I.A.NO.296 OF 2024 IN O.S. NO.47
OF 2020 OF WAKF TRIBUNAL, KOZHIKODE
PETITIONER/PLAINTIFF:
VELLARANGOTT K. AMMAD,
AGED 82 YEARS
S/O. UMMAR, KARAYAD, ARIKULAM, KOYILANDY,
KOZHIKODE DT., PIN - 673620
BY ADVS.
M.MUHAMMED SHAFI
T.RASINI
ADHEELA NOWRIN
RESPONDENTS/DEFENDANTS:
1 KAVUMTHARA KAVIL MANDANKAV PUTHANPALLI PARIPALANA
COMMITTEE,
KAVUMTHARA, KAVIL P.O, KOZHIKODE DT. REP. BY
SECRETARY, IMBICHI MAMMAD MASTER, AGED 70 YEARS,
S/O. KOTTIL KOYOTTI, PIN - 673614
2 IMBICHI MAMMAD MASTER,
AGED 70 YEARS
S/O. KOTTIL KOYOTTI, SECRETARY, KAVUMTHARA KAVIL
MANDANKAV PUTHANPALLI PARIPALANA COMMITTEE, KAVIL
P.O, KOZHIKODE DT., PIN - 673614
3 THE KERALA STATE WAKF BOARD,
VIP ROAD, ERNAKULAM, REP. BY ITS CHIEF EXECUTIVE
OFFICER., PIN - 682017
2
O.P.(Wakf)No.14 of 2024
4 N.K BEERAN HAJI,
AGED 65 YEARS
S/O. AMMAD HAJI, THAZHETHIDATHIL HOUSE, KAVIL P.O,
KOYILADY, PRESIDENT, 1. KAVUMTHARA KAVIL MANDANKAV
PUTHANPALLI PARIPALANA COMMITTEE, KAVUMTHARA,
KAVIL P.O, KOZHIKODE DT., PIN - 673614
5 A.K. IMBICHI MOIDEEN,
AGED 72 YEARS
S/O. BAVUTTY, EDATHKANDI HOUSE, KAVIL P.O,
NADUVANNUR, GENERAL SECRETARY, KAVUMTHARA KAVIL
PUTHANPALLI PARIPALANA COMMITTEE, KAVUMTHARA,
KAVIL P.O, KOZHIKODE DT., PIN - 673614
BY ADVS.
MUDASSER AHAMED
MUNEER AHMED
JAYKAR.K.S.
OTHER PRESENT:
SC WAKF BOARD- SRI. JAMSHEED HAFIZ
THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 23.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
O.P.(Wakf)No.14 of 2024
JUDGMENT
Anil K. Narendran, J.
The petitioner filed O.S.No.47 of 2020 before the Waqf
Tribunal, seeking a declaration that the petitioner and his
successors alone have the right to act as Muthavalli of the 1 st
respondent Waqf, namely, Puthanpalli Paripalana Committee as
provided in Document No.2583/1928 of the Sub Registrar Office,
Naduvannur. He has also sought for a permanent prohibitory
injunction restraining respondents 1 and 2, namely, Kavumthara
Kavil Mandankav Puthanpalli Paripalana Committee and Imbichi
Mammad Master, its Secretary and their men from interfering with
the peaceful management of the mosque by the petitioner or his
successors as per the Waqf Deed and from trespassing into the
plaint schedule property, interfering with peaceful possession and
management of the plaint schedule Waqf by the petitioner as its
Muthavalli. In that suit, respondents 1 to 3 herein were originally
made as defendants 1 to 3. Later, respondents 4 and 5 were also
impleaded as additional defendants. A copy of the plaint in
W.O.S.No.47 of 2020 is placed on record as Ext.P1. The document
marked as Ext.P2 is the written statement filed by the 3rd defendant
and Ext.P3 is that filed by defendants 4 and 5.
2. The petitioner has invoked the supervisory jurisdiction
of this Court under Article 227 of the Constitution of India, seeking
an order to quash Ext.P9 order dated 09.04.2024 of the Waqf
Tribunal in I.A.No.296 of 2024 in W.O.S.No.47 of 2020, whereby
that application filed for remitting Ext.P5 report of the Advocate
Commissioner dated 25.08.2023 and for submitting a fresh plan
with survey numbers and detailed measurements of the plaint
schedule property, stands rejected. A copy of that interlocutory
application is placed on record as Ext.P8.
3. On 03.05.2024, when this original petition came up for
admission, notice by special messenger was ordered to
respondents 1, 2, 4 and 5. The learned Standing Counsel for the
State Waqf Board entered appearance for the 3rd respondent.
4. On 07.05.2024, this Court granted an interim order
staying all further proceedings in O.S.No.47 of 2020 on the file of
the Wakf Tribunal, Kozhikode, for a period of two months.
5. Heard the learned counsel for the petitioner, the learned
Standing Counsel for State Waqf Board for the 3rd respondent and
the learned counsel for respondents 4 and 5. Despite service of
notice, none appears for respondents 1 and 2.
6. During the course of arguments, the learned counsel for
the petitioner and also the learned counsel for respondents 4 and
5 addressed arguments touching the merits of the issue, which is
now pending before the Waqf Tribunal. The learned counsel for
respondents 4 and 5 would point out that the said respondents have
already raised a contention regarding the maintainability of
W.O.S.No.47 of 2020 before the Waqf Tribunal.
7. We do not propose to consider those contentions in this
proceedings, since the sole issue that requires consideration is
whether any interference is warranted on Ext.P9 order dated
09.04.2024 of the Waqf Tribunal in I.A.No.296 of 2024 in
W.O.S.No.47 of 2020, in exercise of the supervisory jurisdiction
under Article 227 of the Constitution of India.
8. I.A.No.296 of 2024 in W.O.S.No.47 of 2020 was one filed
by the petitioner herein-plaintiff, invoking the provisions under
Order XXVI Rule 10 and 7 and Section 151 of the Code for remitting
Ext.P5 report dated 25.08.2023 of the Advocate Commissioner and
for submitting a fresh plan with survey numbers and detailed
measurement of the plaint schedule property. The said application
now stands rejected by Ext.P9 order, which reads thus;
"This petition filed under Order 26 Rule 10 and 7 and Section
151 of Code of Civil Procedure to remit the commission report
and for filing fresh detailed report.
2. No counter filed. The dispute is mainly with respect to
mutawalliship. There is no need to identify plaint schedule
properties. Hence the remission of commission report is not
required. Hence dismissed. No costs."
9. Chapter XIV of Kerala State Waqf Rules, 2019 deals with
the proceedings before the Tribunal. As per Rule 114, the provisions
of the Code of the Civil Procedure, Civil Rules of Practice and the
Criminal Procedure Code shall apply to proceedings before the
Tribunal. As per Rule 129, the judgments or orders of the Tribunal
shall contain a concise statement of the facts of the case, the points
for determination, the decision thereon and the reason for such
decision. Every order of the Tribunal shall be in writing and shall be
signed with date and its seal.
10. In Breen v. Amalgamated Engineering Union [1971
(1) All. E.R. 1148] Lord Denning, M.R. Observed that, the giving
of reasons is one of the fundamentals of good administration. In
Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR
120] it was observed that, failure to give reasons amounts to
denial of justice. Reasons are live links between the mind of the
decision-taker to the controversy in question and the decision or
conclusion arrived at.
11. In Commissioner of Police, Bombay v. Gordhandas
Bhanji [AIR 1952 SC 16] the Apex Court has held that, public
orders publicly made, in exercise of a statutory authority cannot be
construed in the light of explanations subsequently given by the
officer making the order of what he meant, or of what was in his
mind, or what he intended to do. Public orders made by public
authorities are meant to have public effect and are intended to
affect the actings and conduct of those to whom they are addressed
and must be construed objectively with reference to the language
used in the order itself. Following the principle laid down in
Gordhandas Bhanji's case (supra), the Apex Court has
reiterated in Mohinder Singh Gill v. Chief Election
Commissioner [(1978) 1 SCC 405] that, when a statutory
functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning may, by the
time it comes to Court on account of a challenge, gets validated by
additional grounds later brought out.
12. Following the principle laid down in the decisions
referred to above, the Apex Court in Chairman and Managing
Director, United Commercial Bank v. P.C. Kakkar [(2003) 4
SCC 364] held that, reasons substitute subjectivity by objectivity.
The emphasis on recording reasons is that if the decision reveals
the 'inscrutable face of the sphinx', it can, by its silence, render it
virtually impossible for the courts to perform their appellate
function or exercise the power of judicial review in adjudging the
validity of the decision. Right to reason is an indispensable part of
a sound judicial system. Another rationale is that the affected party
can know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons for
the order made, in other words, a speaking out. The 'inscrutable
face of a sphinx' is ordinarily incongruous with a judicial or quasi -
judicial performance.
13. The object underlying the rules of natural justice is to
prevent miscarriage of justice and secure fair play in action. The
recording of reasons by an administrative or quasi-judicial authority
serves a salutary purpose, namely, it excludes chances of
arbitrariness and ensures a degree of fairness in the process of
decision making. It would apply equally to all decisions made by
such authority and its application cannot be confined to decisions
which are subject to appeal, revision or judicial review. At the same
time, it is not the requirement that, the reasons should be as
elaborate as in the decision of a Court of law. What is necessary is
that, the reasons are clear and explicit so as to indicate that the
authority has given due consideration to the points in controversy.
Hence, it is an essential requirement of the rule of law that, some
reasons, at least in brief, must be disclosed in the order passed by
an administrative or quasi-judicial authority.
14. Viewed in the light of the law laid down in the decisions
referred to supra, conclusion is irresistible that Ext.P9 order dated
09.04.2024 of the Waqf Tribunal, Kozhikode in I.A.No.296 of 2024
in W.O.S.No.47 of 2020, which is a cryptic order passed without
adverting to the rival contentions by the parties, cannot be
sustained in law. Such an order, which does not state reasons,
which are the live things between the mind of the decision taker to
the controversy in question and the decision or the conclusion
arrived at, cannot be sustained in law, since it amounts to denial of
justice. On that sole ground, Ext.P9 order is liable to be set aside.
In such circumstances, this original petition is disposed of by
setting aside Ext.P9 order dated 09.04.2024 of the Waqf Tribunal,
Kozhikode in I.A.No.296 of 2024 in W.O.S.No.47 of 2020 on the
above ground and by directing the Tribunal to pass fresh orders in
that interlocutory application, after adverting to the legal and
factual contentions raised by both sides, as expeditiously as
possible, at any rate, within a period of two weeks from the date of
receipt of a certified copy of this judgment.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
MIN
APPENDIX OF OP (WAKF) 14/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO. 47 OF
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE 3RD RESPONDENT
Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT FILED
Exhibit P4 TRUE COPY OF THE APPLICATION IN IA NO. 517
OF 2023 IN OS NO. 47 OF 2020
Exhibit P5 TRUE COPY OF THE REPORT AND SKETCH DATED
25-08-2023 SUBMITTED BY THE ADVOCATE
COMMISSIONER
Exhibit P6 TRUE COPY OF THE PETITION IN IA NO. 724
OF 2023 IN OS NO. 47 OF 2020
Exhibit P7 TRUE COPY OF THE REPORT DATED 20-02-2024
ALONG WITH THE PLAN SUBMITTED BY THE
ADVOCATE COMMISSIONER
Exhibit P8 TRUE COPY OF THE PETITION IN IA NO. 296
OF 2024 IN OS NO. 47 OF 2020
Exhibit P9 CERTIFIED COPY OF THE ORDER IN IA NO. 296
OF 2024 IN OS NO. 47 OF 2020
