IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 119 of 2010()
1. KODIYATHUR MANNIL UNNI MOYIN KUTTY,
... Petitioner
2. CHERUKUNNATH KOYAMMUTTY,
3. KALLADIYIL IMBICHALI, S/O.ABDU RAHIMAN,
4. KNIYATH ABDUL NAZAR, S/O.ABOOBACKER,
5. METHAN VEETTIL MAMMAD,S/O.ALAVI,
Vs
1. KERALA WAKF BOARD, REPRESENTED BY ITS
... Respondent
2. V.E.MOYIN HAJI,S/O. VEERANKUTTY HAJI,
3. K.C.MUHAMMED, S/O. KAMMUKUTTY MUSALIYAR,
4. P.ABDUL KADHER, S/O. MOOSKUTTY,
5. KOYAMMU, S/O. KUNHAMMED, PRESIDENT,
6. M.A.ABDULLA, S/O. ABDULLA RAZAK
For Petitioner :SRI.R.RAMADAS
For Respondent :SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :11/10/2010
O R D E R
PIUS C. KURIAKOSE &
P. S. GOPINATHAN, JJ.
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C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010
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Dated this the 11th day of October, 2010
ORDER
Gopinathan, J
The challenge before us in the above two
Civil Revision Petitions is the order of appointment
of Advocate Sri.P.C.Najeeb as the interim
Mutawalli of Nellikkapparambu Juma-Ath Masjid
by the Wakf Board pending dispute regarding the
office of Mutawalli. While the Wakf was smoothly
managed by a committee elected by the members
of the Mahal, there arose dispute between
members. There was grouping in between
members and ultimately a suit as O.S.739/89 was
filed before the Munsiff’s Court, Kozhikode. The
suit was dismissed. Dispute prevailed. While so,
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -2-
the members arrived at an understanding.
Accordingly, Sri.V.E.Moyin Haji, the second
respondent in C.R.P.119/10 was appointed as a
Mutawalli and he was managing the affairs of the
Masjid. While he holding so, in 2003, some of the
members of the Mahal convened a meeting. A
Managing Committee as well as a Mutawalli was
elected. Thereupon, the service of the second
respondent in CRP.119/10 as Mutawalli was
terminated. On the other hand, the Wakf Board
appointed V.E.Moyin Haji as the Mutawalli. That
appointment was challenged before the Wakf
Tribunal in O.P.2/04. The Wakf Tribunal, while
allowing the O.P. set aside the order of the Wakf
Board appointing Moyin Haji as the Mutawalli and
the matter was remanded to the Wakf Board for
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -3-
fresh disposal. The order in O.P.2/04 was
challenged before this Court, but not successful.
Some of the parties also approached for framing a
scheme by filing O.P. Nos.58/07 and 86/07. In
O.P.86/07, a petition was filed praying for
appointing a Mutawalli stating that the post of the
Mutawalli had become vacant. Thereupon, the
Wakf Board appointed Advocate Sri.P.C.Najeeb as
the Mutawalli till the disposal of the proceedings
before the Wakf Board. Assailing the said order,
O.P.5/07 was filed. Moyin Haji, who was the 7th
respondent in O.P.5/07, filed O.P.11/07 seeking
an order to appoint him as Mutawalli. By a
common order, O.P.5/07 was allowed after
arriving at conclusion that there arose no vacancy
of the Mutawalli. O.P.11/07 was dismissed for the
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -4-
reason that there is objection for a group of
members in appointing Moyin Haji as Mutawalli. It
is that order now assailed in both the revision
petitions.
2. While the dispute is getting stronger
between the parties, it was brought to the notice
of the Wakf Board that some urgent repairs are
badly in need, especially regarding toilet and
washing place. Therefore, by Ext.P2 order dated
11/05/10 assailed in O.P.4/10, the Wakf Board
authorised an officer of the Board to do the urgent
repairs. Assailing that order, O.P.16/10 was filed
before the Wakf Tribunal, Kozhikode. The Writ
Petitioner also filed petition as I.A.297/10 to stay
Ext.P2 order. That petition was dismissed by
Ext.P4 order. Ext.P2 order as well as Ext.P4 order
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -5-
is assailed in O.P.(WT).4/10 under Article 227 of
the Constitution of India.
3. We heard the learned counsel appearing
either side and perused the orders impugned. It is
not disputed that Advocate Sri.P.C.Najeeb was
appointed as interim Mutawalli in exercise of the
powers vested on the Wakf Board under Section
63 of the Wakf Act which reads as follows:-
Sec.63:- “When there is a vacancy in
the office of the mutawalli of a Wakf
and there is no one to be appointed
under the terms of the deed of the
Wakf, or where the right of any person
to act as mutawalli is disputed, the
board may appoint any person to act as
mutawalli for such period and on such
conditions as it may think fit.”
4. Going by the orders impugned in the
revision petitions, it is seen that the Tribunal
below interfered with the order appointing
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -6-
Advocate P.C. Najeeb as Mutawalli solely for the
reason that there was no vacancy of the office of
the Mutawalli. In fact, it is not disputed from the
Bar that main dispute is regarding the
management of Wakf and as to who shall be the
Mutawalli. The facts stated earlier speak volumes.
Since the parties are fighting tooth and nail,
appointment of any person from a warring group
without resolving the dispute may aggravate the
dispute. In case, parties to dispute could not
arrive at a consensus, it is always advisable to
appoint a neutral person till the dispute is
resolved. Whenever there is a dispute regarding
the right of a person to act as a Mutawalli, Wakf
Board is empowered to appoint a Mutawalli under
Section 63. That aspect was not considered by the
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -7-
Tribunal below and thus, the order impugned is
vitiated. We find that since there is serious
dispute regarding the person to hold the office of
Mutawalli and the parties are warring regarding
the office of the Mutawalli, the Wakf Board was
justified in appointing Advocate Sri.P.C.Najeeb as
interim Mutawalli till the matter is finally decided
by the Board. It is not disputed from either side
that Advocate P.C. Najeeb is anyway disqualified
to hold the office of the Mutawalli for an interim
period. There is no case that Sri.Najeeb has got
any favours or disfavours with any group. In the
above circumstances, we find that the Tribunal
below was not justified in interfering with the
order appointing Advocate Sri.P.C.Najeeb as
Mutawalli for the interim period till the matter
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -8-
before the Wakf Tribunal is disposed of. So we
find that the order impugned in the revision
petitions are liable to be set aside and the order of
the Wakf Board appointing Advocate Sri.P.C.
Najeeb as interim Mutawalli is to be restored. The
claim of the petitioner in CRP.263/10 is also
devoid of merits as such appointment would
aggravate the dispute.
5. As regards O.P.(WT) No.4/10, it is not
disputed that urgent repairs are to be done
regarding the latrine and washing place. The
question is as to how it is to be done. Since we
hold that the order appointing Advocate
Sri.P.C.Najeeb as Mutawalli is liable to be
restored, irrespective of the grounds alleged to
assail the orders, we find that it would be just and
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -9-
appropriate to allow him to conduct the repair
work. We are not going to the merits of the
contention that Ext.P2 order impugned in O.P.
(WT) No.4/10 was passed on a holiday or not
because we find that irrespective of the date of
the order, urgent works are to be done and that
cannot be postponed to a future date. Since we
uphold the order to appoint Adv. Sri.P.C.Najeeb as
Mutawalli, let him do it. Advocate Sri.P.C.Najeeb
may also explore as to whether any of the
members of the Mahal or any outsider is prepared
to sponsor the execution of repair work and if so,
the repair work shall be done at the expense of
the sponsor so found out. In case no sponsor
could be found out, the repair work shall be done
out of the funds of the Wakf.
C. R. P. Nos.119 & 263 of 2010 and
O. P. (WT) No.4 of 2010 -10-
6. We notice that by Ext.P1 order a Single
Bench of this Court has given direction to the
Wakf Board to dispose of the matter within a time
frame. In the above circumstances, we are not
fixing any time frame regarding the disposal of
the matter by the Wakf Board. Revision petitions
and O.P. would stand disposed as above.
PIUS C. KURIAKOSE
JUDGE
P. S. GOPINATHAN
JUDGE
kns/-