Kerala High Court
Yousuf C.H vs 1) Badriya Juma Masjid Heroor, ... on 3 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
2024:KER:73861
CRP(Waqf) 10 & 22/2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRP(WAKF) NO. 10 OF 2024
AGAINST ORDER DATED 21.9.2023 OF WAQF TRIBUNAL, KOZHIKODE IN
WOS NO.441/2019
REVISION PETITIONERS/PLAINTIFFS:
1 T. SHOUKATH ALI
AGED 49 YEARS
S/O MOHAMMED KUTTY, THITTUMMAL HOUSE, KUNDOORKUNNU
PO, THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678583
2 T. MOHAMMED ALI
AGED 48 YEARS
S/O MOHAMMED KUTTY, THITTUMMAL HOUSE, KUNDOORKUNNU
PO, THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT,, PIN - 678583
3 T. BASHEER
AGED 49 YEARS
S/O MOHAMMED KUTTY, THITTUMMAL HOUSE, KUNDOORKUNNU
PO, THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT,, PIN - 678583
BY ADV R.RAMADAS
RESPONDENTS/DEFENDANTS:
1 KIZHAKKUMPURAM JAMA ATH PALLY COMMITTEE,
KIZHAKKUMPURAM, KUNDOORKUNNU PO, THACHANTTUKARA-1
VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT,
REPRESENTED BY T. ALAVI HAJI
AGED 74 YEARS
S/O HASSAINAR, RESIDING AT THITTUMMAL HOUSE,
KUNDOORKKUNNU PO, THACHANATTUKARA-1 VILLAGE,
MANNARKKAD TALUK, PALAKKAD DISTRICT,, PIN - 678583
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CRP(Waqf) 10 & 22/2024
2
2 SAIDALAVI T
AGED 59 YEARS
S/O (LATE) MUHAMMED HAJI, , MUTHAVALLY,
KIZHAKKUMPURAM JAMA ATH MOSQUE/WAQF,
KIZHAKKUMPURAM, KUNDOORKKUNNU PO, THACHANATTUKARA-
1 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT,,
PIN - 678583
3 YOUSAF SAKHAFI
AGED 50 YEARS
S/O KUNJI KAMMU, HEADMASTER, IRSHADU SUBIYAN
MADRASSA, KIZHAKKUMPURAM, KUNDOORKKUNNU PO,
THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678583
4 SYED ALAVI SAKHAFI
AGED 39 YEARS
S/O VEERANKUTTY, TEACHER, IRSHADU SUBIYAN
MADRASSA, KIZHAKKUMPURAM, KUNDOORKKUNNU PO,
THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678583
5 SIDDIQUE SAKHAFI
AGED 36 YEARS
S/O MOIDEEN KUTTY, THENAMOOCHIKKAL HOUSE,
KIZHAKKUMPURAM, KUNDOORKKUNNU PO, THACHANATTUKARA-
1 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT,
PIN - 678583
6 SULAIMAN
AGED 44 YEARS
S/O ALI, KIZHAKKUMPURAM, KUNDOORKKUNNU PO,
THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678583
7 T. MOHAMMADALI
AGED 44 YEARS
S/O KOYA, KIZHAKKUMPURAM, KUNDOORKKUNNU PO,
THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678583
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CRP(Waqf) 10 & 22/2024
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8 MOHAMMED ALI SAKHAFI
AGED 37 YEARS
S/O MOIDEEN, KIZHAKKUMPURAM, KUNDOORKKUNNU PO,
THACHANATTUKARA-1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678583
9 T. MOIDUTTY
AGED 31 YEARS
S/O MOHAMMED, THAZHATHETTUMMAL HOUSE,
KIZHAKKUMPURAM, KUNDOORKKUNNU PO, THACHANATTUKARA-
1 VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT,
PIN - 678583
10 THE KERALA STATE WAQF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, NEAR
INTERNATIONAL STADIUM, KALOOR, ERNAKULAM, PIN -
682017
BY ADVS.
SIVADASAN T FOR R1 & R2
P.K.MOHAMMED PUZHAKKARA FOR R3 TO R9
OTHER PRESENT:
SRI.JAMSHEED HAFIZ- SC FOR R10
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 03.10.2024,
ALONG WITH CRP (WAQF) NO.22/2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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CRP(Waqf) 10 & 22/2024
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRP(WAKF) NO. 22 OF 2024
AGAINST ORDER DATED 6.12.2023 IN WOS NO.60/2019 OF WAQF
TRIBUNAL, KOZHIKKODE
REVISION PETITIONERS/PLAINTIFFS:
1 YOUSUF C.H
AGED 46 YEARS
S/O (LATE) MEERAN KUNHI, MEMBER, HADDAD JUMA
MASJID CHINNAMOGARU, RESIDING AT CHINNAMOGARU,
HEROOR VILLAGE, KARASARAGOD TALUK, KASARAGOD
DISTRICT, PIN - 671324
2 ABDULLA C.H.
AGED 47 YEARS
S/O LATE YOUSUF, MEMBER, HADDAD JUMA MASJID
CHINNAMOGARU, RESIDING AT CHINNAMOGARU, HEROOR
VILLAGE, KARASARAGOD TALUK, KASARAGOD DISTRICT,
PIN - 671324
3 ABDULRAHIMAN
AGED 45 YEARS
S/O LATE IDDINKUNHI, MEMBER, HADDAD JUMA MASJID
CHINNAMOGARU, RESIDING AT CHINNAMOGARU, KAYYER
VILLAGE, KARASARAGOD TALUK, KASARAGOD DISTRICT,
PIN - 671324
4 MOHAMMED HANEEF
AGED 43 YEARS
S/O MOIDEEN KUNHI, MEMBER, HADDAD JUMA MASJID
CHINNAMOGARU, RESIDING AT CHINNAMOGARU, KAYYER
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CRP(Waqf) 10 & 22/2024
5
VILLAGE, KARASARAGOD TALUK, KASARAGOD DISTRICT,
PIN - 671324
BY ADV R.RAMADAS
RESPONDENTS/DEFENDANTS:
1 BADRIYA JUMA MASJID HEROOR, REPRESENTED BY THE
PRESIDENT SRI. MOHAMMED SHAFI
AGED 55 YEARS
S/O IBRAHIM HAJI, RESIDING AT HEROOR VILLAGE AND
POST, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN -
671324
2 HADDAD JUMA MASJID CHINNAMOGARU, REPRESENTED BY
THE PRESIDENT YOUSUF THOTTEM
AGED 70 YEARS
S/O IBRAHIM, HEROOR VILLAGE AND POST, KASARAGOD
TALUK, KASARAGOD DISTRICT, PIN - 671324
3 THE SECRETARY
HADDAD JUMA MASJID CHINNAMOGARU, HEROOR VILLAGE
AND POST, KASARAGOD TALUK, KASARAGOD DISTRICT,,
PIN - 671324
4 THE KERALA STATE WAKF BOARD
REPRESENTED BY CHIEF EXECUTIVE OFFICER, VIP ROAD,
KALOOR, KOCHI, PIN - 682017
BY ADVS.
SIVADASAN T FOR R2
Jamsheed Hafiz
OTHER PRESENT:
SRI. JAMSHEED HAFIZ- SC FOR R4
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
03.10.2024, ALONG WITH CRP (WAQF) NO.10/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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CRP(Waqf) 10 & 22/2024
6
AMIT RAWAL & EASWARAN S., JJ.
------------------------------------
CRP (Waqf) Nos.10 & 22 of 2024
-------------------------------------
Dated this the 3rd day of October, 2024
ORDER
Easwaran S.,J.
This order of ours shall dispose of two Civil Revision Petitions
(Waqf), since common questions of law are raised in both these petitions.
2. CRP(Waqf) No.22/2024 is filed by the plaintiffs in W.O.S
No.60/2019 before the Waqf Tribunal, Kozhikkode. The said suit was
filed for a permanent prohibitory injunction restraining the defendants,
their men and agents from changing the syllabus or the prescribed
books of Samastha Kerala Islam Matha Vidhyabhyasa Board or
otherwise interfering with the teaching of the aforesaid syllabus to the
students attending the Madrassa of defendants 2 & 3. The suit was
originally filed before the Additional Munsiff's Court, Kasaragod as
O.S.No.320/2010. But, subsequently, the plaint was returned for want
of jurisdiction. The revision petitioners/plaintiffs claimed that they are
members of the general body and beneficiaries of the 2nd defendant
Waqf, namely Haddad Juma Masjid, Chinnamogaru. The 2nd defendant
waqf was functioning under the 1st defendant Mahallu Jama-ath, namely
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Badriya Juma Masjid Heroor. During the period 1990, permission was
obtained from Badriya Juma Masjid for starting juma prayers in the 2nd
defendant waqf. An agreement was entered into wherein it is
specifically stated what should the syllabus be followed in the Madrassa.
Since there were attempts to change the syllabus, the plaintiffs/revision
petitioners approached the Waqf Tribunal. The defendants entered
appearance and contested the claim. The Waqf Tribunal, after adverting
to the various contentions raised in the suit, came to the conclusion that
in the matter as to whether a particular syllabus to be followed or taught
in the Madrassa cannot be described as a dispute relating to the Waqf
and no suit or injunction would lie.
3. In CRP(Waqf) No.10/2024, the revision petitioners are
plaintiffs in W.O.S.No.441/2019 on the files of Waqf Tribunal,
Kozhikkode. The 1st defendant is Kizhakkumpuram Jama ath Pally
Committee. The revision petitioners/plaintiffs submit that they are
mahal members and beneficiaries of Kizhakkumpuram Jama-ath
Mosque. The Madrassa, namely Irshad Subiyan Madrassa,
constituted in the year, 1981, is functioning under the
said waqf. The 1st defendant Committee had submitted an
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application on 10.8.1981 before the Samastha Kerala Islam Matha
Vidhyabhyasa Board and obtained a certificate of recognition on
29.8.1981. The registration number issued by the Board to the
Madrassa is 4408, and the Board is the subordinate wing of Samastha
Kerala Jamiyyathul Ulama at Kozhikkode. The suit was instituted at a
time when there was an attempt made by the defendants to change the
syllabus being taught in the Madrassa. The Tribunal after adverting to
the pleadings on record, came to the same conclusion that the question
as to whether a particular syllabus has to be taught in a Madrass cannot
be a subject matter of dispute falling within the definition under Section
3(r) of the Waqf Act, 1995 and accordingly, dismissed the suit.
4. We have heard Sri.R.Ramadas, the learned counsel
appearing for the revision petitioners in these petitions; Sri.Jamsheed
Hafiz, the learned Standing Counsel appearing for the Waqf Board;
Sri.K.M.Firoz, learned counsel appearing for the 2nd respondent in CRP
(Waqf) No.22/2024; Sri.T.Sivadasan, learned counsel appearing for
respondent Nos.1 & 2 in CRP (Waqf) No.10/2024 and Sri.Mohammed
Puzhakkara, learned counsel appearing for respondent Nos.3 to 9 in
CRP (Waqf) No.10/2024.
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5. The learned counsel appearing for the revision petitioners
brought to the notice of this Court a judgment of the Hon'ble Supreme
Court in Board of Wakf, West Bengal v. Anis Fatma Begum &
Anr [2010 (4) KHC 866]. With specific reference to paragraph No.14
of the judgment of the Hon'ble Apex Court, the learned counsel for the
revision petitioners would point out that the Waqf Tribunal can decide
all disputes, questions or other materials relating to Waqf or Waqf
property. Paragraph No.14 of the aforesaid judgment reads as under:
"14. Thus, the Wakf Tribunal can decide all disputes,
questions or other matters relating to a Wakf or Wakf
property. The words "any dispute, question or other
matters relating to a Wakf or Wakf property" are, in our
opinion, words of very wide connotation. Any dispute,
question or other matters whatsoever and in whatever
manner which arises relating to a Wakf or Wakf property
can be decided by the Wakf Tribunal. The word `Wakf' has
been defined in Section 3(r) of the Wakf Act, 1995 and
hence once the property is found to be a Wakf property as
defined in Section 3(r), then any dispute, question or other
matter relating to it should be agitated before the Wakf
Tribunal."
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6. On the other hand, the learned counsel appearing for the
respective defendants would contend that no doubt, the term "dispute"
under Section 3(r) of the Waqf Act has been interpreted to hold all
disputes arising out of the Waqf property, the question as to whether a
particular syllabus has to be followed in the Madrassa, cannot be the
subject matter of a suit before the Waqf Tribunal. The learned counsel
appearing for the respective defendants are at ad idem on their
contention that the Tribunal is not an expert to decide the issue as to
whether what syllabus should be followed in a Madrassa and therefore,
contend that the findings rendered by the Tribunal are perfectly justified
and no interference is required by this Court in these revision petitions.
7. We have considered the rival submissions raised across the
bar.
8. A perusal of the decision of the Supreme Court in Anis
Fatma Begum (supra) leaves no room for doubt as to whether the
present dispute will fall within the definition of "dispute" under Section
3(r) of the Waqf Act, 1995. In the light of the categoric declaration of
law by the Supreme Court, which was binding on the Tribunals, we are
of the considered view that the Tribunal ought not to have dismissed the
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suits on the ground that the question relating to the syllabus will not fall
within the definition of "dispute" under the Waqf Act.
9. Hence, without entering into the merits of the matter, we
hereby set aside orders of the Waqf Tribunal, Kozhikkode, dated
21.9.2023 in W.O.S.No.441/2019 and dated 6.12.2023 in
W.O.S.No.60/2019, respectively, restoring the suits to the files of the
Waqf Tribunal. The Waqf Tribunal, Kozhikkode shall decide the suits
afresh, in accordance with law, on the merits of the contentions raised
before it, after allowing the parties to adduce additional evidence, if any,
as expeditiously as possible. The parties shall appear before the Waqf
Tribunal, Kozhikkode on 21.10.2024.
These CRPs (Waqf) are allowed accordingly.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
jg
