Kerala High Court
Udumbunthala Muslim Juma-Ath ... vs Thayyil Purayil Abdullah on 7 November, 2024
2024:KER:85620
W.A.No.126 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
WA NO.126 OF 2023
AGAINST THE JUDGMENT DATED 13.12.2021 IN WP(C) NO.19268
OF 2021 OF HIGH COURT OF KERALA
APPELLANT/3RD PARTY:
UDUMBUNTHALA MUSLIM JUMA-ATH COMMITTEE
REPRESENTED BY ITS SECRETARY MR.FAISAL KOCHAN,
UDUMBUNTHALA (P.O), SOUTH THRIKARIPUR, HOSDURG
TALUK, KASARAGOD DISTRICT, PIN - 671 311.
BY ADV JAWAHAR JOSE
RESPONDENTS/WRIT PETITIONER & RESPONDENTS:
1 THAYYIL PURAYIL ABDULLAH
AGED 61 YEARS, S/O.P.MOHAMMED KUNHI, RESIDING AT
AL-NOOR, UDUMBUNTHALA (P.O), SOUTH THRIKARIPUR,
HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671 311;
THROUGH HIS POWER OF ATTORNEY HOLDER AND BROTHER
T.P.SHADULI, AGED 60 YESRS, S/O.P.MOHAMMED,
RESIDING AT FATHIMA VILLA, VALVAKKAD, SOUTH
THRIKARIPUR, KASARAGOD DISTRICT, PIN - 671 311.
2 THRIKARIPUR GRAMA PANCHAYATH,
VADAKKE THRIKARIPUR, THRIKARIPUR (P.O),
KASARAGOD DISTRICT, PIN - 671 310.
3 THE SECRETARY, THRIKARIPUR GRAMA PANCHAYATH,
VADAKKE THRIKARIPUR, THRIKARIPUR P.O., KASARAGOD
DISTRICT, PIN - 671 310.
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W.A.No.126 of 2023
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4 KERALA STATE WAKF BOARD
VIP ROAD, KALOOR (P.O), KOCHI, PIN - 682 017,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
*ADDL.R5 REVENUE DIVISIONAL OFFICER,
KASARAGOD. *(IMPLEADED AS ADDITIONAL R5 AS PER
ORDER DATED 3/3/23 IN I.A.1/23 IN WA 126/23.)
SRI S SHYAMKUMAR, SRI JAMSHEED HAFIZ, SC,
SRI K P HARISH, SR.GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.A.No.126 of 2023
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Nitin Jamdar, C.J. & S. Manu, J.
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W.A.No.126 of 2023
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Dated this the 07th day of November, 2024
JUDGMENT
Nitin Jamdar, C.J.
Heard Mr.Jawahar Jose, learned counsel for the Appellant,
Mr.S.Shyamkumar, representing Mr.M.Sasindran, learned counsel for
Respondent No.1, Mr.Jamsheed Hafiz, learned Standing Counsel for the
Kerala State Wakf Board and Mr.K.P.Harish, learned Senior Government
Pleader.
2. The Appellant was not a party respondent in the Writ Petition
filed by Respondent No.1/Original Petitioner. The learned Single Judge
passed an order on 13 December 2021, directing that the Respondent-
Panchayat will consider the request made by Respondent No.1/Petitioner
for building permit, as the Respondent-Wakf Board had no concern with
the subject property. The Appellant filed a Review Petition No.530 of
2022, which was disposed of on 28 June 2022, wherein, the learned
Single Judge, after considering the contentions of all the parties, observed
that the Review Petitioner has already moved the competent Court for
protecting the Wakf property and the judgment of the learned Single
Judge in W.P(C)No.19268 of 2021 would not adversely affect the claim
of the Appellant, as the learned Single Judge had not considered the
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validity of the sale certificate and the judgment was solely on the basis of
the stand taken by the Wakf Board. The learned Single Judge, therefore,
disposed of the Review Petition, making it clear that the order of the
learned Single Judge dated 13 December 2021 in W.P(C)No.19268 of
2021 is not to be taken as concluding the rights of the parties as regards
the validity of the sale certificate in question.
3. Therefore, the issue raised by the Appellant was left open to be
considered by the Tribunal/the Competent Court. Thereafter, the
Tribunal has rendered a decision on 31 May 2024, wherein the Tribunal
has held against the Appellant, holding that the subject property was not a
Wakf property. Against this decision of the Tribunal, the Appellant has
filed CRP(Wakf) No.43 of 2024, which is still pending.
4. According to us, for the grant of planning permission, the issue
as to the right of Respondent No.1/Petitioner to the subject property will
have to be considered by the Panchayat. The question as regards the right
of Respondent No.1/Petitioner flowing from Respondent-Wakf Board is
under consideration in the Revision. However, Respondent
No.1/Petitioner is not a party in the said Revision. Considering the order
passed by the learned Single Judge in the Review Petition, it is clear that
the rights of the Appellant will be decided in the proceedings taken
before the Tribunal, which will ultimately affect the claim of Respondent
No.1/Petitioner seeking building permit. The learned counsel for the
Original Petitioner states that he will make necessary application in that
regard in the pending Revision application.
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5. Accordingly, we dispose of the appeal, leaving it open to
Respondent No.1 to make necessary application for building permission,
subject to the outcome of the pending Revision, wherein the title of
Respondent No.1/Petitioner in the subject property is being considered.
It is open to Respondent No.1/Petitioner to make a request to the
Division Bench taking up the Revision to take up the matter at an early
date since the building permission is being held up, and it is for the
Division Bench to decide whether to do so. This course of action of
permitting the Respondent No.1/Original Petitioner to apply to be joined
as a party respondent even if the Petitioner was not a party before the
Tribunal is only in the peculiar circumstances, in light of the clarification
given by the learned Single Judge in the Review Petition.
Sd/-
Nitin Jamdar
Chief Justice
Sd/-
S. Manu
Judge
vgd/07/11
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RESPONDENT'S ANNEXURES
ANNEXURE R1(A) A TRUE COPY OF THE JUDGMENT DATED
31.05.2024 IN W.O.S.NO. 60/2020 OF THE
WAKF TRIBUNAL, KOZHIKODE
