IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15461 of 2008(N)
1. THE KERALA STATE WAKF BOARD, V.I.P.ROAD,
... Petitioner
Vs
1. THE APPELLATE AUTHORITY(LR), KANNUR
... Respondent
2. SPECIAL TAHSILDAR, LR, LAND TRIBUNAL,
3. N.P.KUNHIPATHU, W/O.ABOOBACKER HAJI,
For Petitioner :SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :29/05/2008
O R D E R
S. Siri Jagan, J.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
W. P (C) Nos. 15461 & 15803 of 2008
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
Dated this, the 29th May, 2008.
J U D G M E N T
In these two writ petitions, the Kerala State Wakf Board is the
petitioner. They filed applications under Section 90(3) of the Wakf
Act before the Land Tribunal concerned seeking to declare that
certain proceedings of the Land Tribunal, whereby 81 cents and 1.64
acres of wakf properties were assigned in favour of the predecessors-
in-interest of the contesting respondents in these writ petitions under
the Kerala Land Reforms Act and certificates of purchase in respect
of the same were issued in favour of the contesting respondents. The
applications were dismissed by the concerned Land Tribunal on the
ground that the remedy of the petitioner lies in filing an appeal
against the order assigning the property to the kudikidappukaran and
not to file an application before the Tribunal. Against the same, along
with petitions to condone delay in filing the same, the petitioner
herein filed appeals before the Appellate Authority. Both the
applications for condonation of delay as well as the appeals were
dismissed primarily on the ground that the petitioner had still not filed
an appeal against the original order of assignment and filed appeals
only against the orders of the Land Tribunal in the applications
submitted by the petitioner. According to the Appellate Authority
also, the petitioner ought to have filed appeals against the original
orders of the Land Tribunal assigning the land and not against the
orders dismissing the applications of the petitioner under Section 90
(3). The petitioner is challenging the orders of the Land Tribunal and
that of the Appellate Authority in these two writ petitions.
2. The contention of the petitioner is that the lower authorities
did not appreciate the contentions of the petitioner properly. Under
Section 90(1), in every suit or proceeding relating to title to or
possession of wakf property concerned, the court or Tribunal shall
W.P.C. No. 15461 & 15803/2008. -: 2 :-
issue notice to the Board at the cost of the party instituting such suit
or proceeding. In this case, before passing the orders under the
Kerala Land Reforms Act, the Land Tribunal did not issue notices to
the Wakf Board. It is under the above circumstances that the
petitioner filed applications under Section 90(3), which provides that
in the absence of a notice under sub-section (1), any decree or order
passed in the suit or proceeding shall be declared void, if the Board,
within one month of its coming to know of such suit or proceeding,
applies to the court in this behalf. It is in exercise of that right under
Section 90(3), the petitioner has filed the applications before the
Tribunal, which are perfectly maintainable. Therefore, the orders of
the Tribunal as well as the Appellate Authority to the effect that the
petitioner should have filed appeals against the original orders for
assignment is patently unsustainable, is the contention. The
petitioner also points out that under Section 107 of the Wakf Act, the
provisions of the Limitation Act 1963 are not applicable to a wakf
property.
3. I have considered the rival contentions in detail.
4. Going by Section 90(3), perhaps the contention of the
petitioner may be correct because Section 90(3) gives a right to the
Wakf Board to file a petition against a suit or proceeding before the
Court or Tribunal itself. But, Section 90(3) specifies that such
petition shall be filed within one month of its coming to know of such
suit or proceeding. In this case, the properties in question were
assigned to the respective tenant as early as on 21-5-1975 and 21-10-
1976. Admittedly, ever since then and even before that date, the
properties in question were in the possession of the respective tenant.
30 years have gone by. No reasonable person can assume that both
the managing committee of the Wakf as well as the Wakf Board were
W.P.C. No. 15461 & 15803/2008. -: 3 :-
totally unaware of the possession of the property by the contesting
respondents and their predecessors-in-interest. If possession was in
the hands of the tenant, then they should naturally have constructive
knowledge about proceedings under the Kerala Land Reforms Act
especially when Wakf Act does not exempt wakf properties from the
purview of the Kerala Land Reforms Act. In fact, in the applications
filed before the Land Tribunal, the petitioner does not specifically
state the date on which the petitioner came to know of the
proceedings. A vague statement that they have filed the application
within one month alone is there. I am of opinion that it cannot for a
moment be believed that the Wakf Board was totally unaware of the
possession of the wakf properties by the kudikidappukaran for all
these 30 years and more. Therefore, clearly, the petitioner has not
filed the applications within the time prescribed in Section 90(3) of
the Wakf Act. There is also no provision for condonation of delay in
the Act. That being so, clearly those petitions are not maintainable.
Therefore, I am not inclined to exercise my discretionary jurisdiction
under Article 226 of the Constitution of India in favour of the
petitioner for the above said reasons. Accordingly, the writ petitions
are dismissed.
S. Siri Jagan, Judge.
Tds/