JUDGMENT
M. Ramachandran, J.
1. Considering a petition filed by the petitioner under Section 32 of the Wakf Act, the Judicial Committee of the Wakf Board of Kerala had on 27.7.2002 passed an interim order as Ext. P7 whereby the petitioner was appointed as interim Mutawalli of Manjakulam Jaram, since according to them, there was a vacuum in the office of Mutawalli. Respondents 2 and 3 herein had got impleaded to the proceedings and attempted to get the order vacated, but were not successful The Chief Executive Officer had been directed by the Judicial Committee to issue public notice, calling for objections from interested persons, and the matter had been posted for objection and
hearing to 9th September. Ext. P10, later on produced by the petitioner, shows that the order in fact had been modified by the Wakf Board on 12.8.2002, making it clear that the petitioner is to act as interim Mutawalli, in respect of the Jaram only. But before the decision of the Board came, clarifying the order of the Committee, complaining about the maintainability of the earlier order of the Committee, the third respondent had petitioned to the Government on 12.8.2002. On the petition, the Government on 14,8.2002 issued the following instructions to the Chief Executive Officer of the Wakf Board:
“I am to forward herewith a copy of the reference cited and to inform you that the order of the Wakf Board dated 27.7.2002 in petition No. 30/2002 is hereby stayed. I am also to inform you that status quo has to be maintained in the matter till the disposal of this petition. You are also directed to furnish a report in the matter to Government urgently”.
Though the petitioner’s name nowhere appears in the above order viz., Ext. P1 as he is adversely affected, the proceedings are challenged. It is evident that the rival parties saw to it always that orders were sought for and obtained behind the back of one another. Ext. P7 was an ex pane interim order. The third respondent likewise when he moved the Government also had not impleaded the petitioner as a party to the proceedings, as he had chosen to name the Chief Executive Officer of the Board only as the offender. The petitioner submits that he came to know of the order from Police Officers. Ext. P10 order passed by the Wakf Board was also without hearing any of the parties. This Original Petition also has been filed without impleading the Committee or the Wakf Board. May be absence of necessary or proper parties can help in smooth operations, but when the battle is long drawn out, the advantages can only be temporary, and it is difficult to see eye to eye with the above irregular practices.
2. Mr. T.H. Abdul Azeez appeared for the petitioner, and Sri. P.N.K. Achan, instructed by Advocate Sri. Mohanakannan, appeared for respondents 2 and 3. The learned Government Pleader represented the first respondent.
3. The only contention of the petitioner is that Ext. P1 order of the Government is illegal, and one passed without jurisdiction ie., the Government cannot act as an appellate or supervisory authority over the decision of the Wakf Board or any of its committees, going by the terms of the Act. But the matter was hotly contested, and necessarily advertence to the arguments might be necessary. In view of the background of the case also, I may have to attempt for a brief narration of facts. Respondents had fielded objections, regarding Ext. P7 proceedings, and the maintainability of the same, especially in view of a recent remand order passed by this Court while disposing C.R.P. No. 914 of 2001 and certain connected cases between the parties. Therefore, the circumstances leading to the Civil Revision Petition also are to be noticed.
4. The Mosque, Jaram and Madrasa at Manjakulam is registered Wakf under the Act. It can reasonably be gathered that Arakkal Aboobacker Musaliyar, who was
the Mutawalli in 1960s, had applied for such registration. The establishments claim antiquity over 150 years. On his death, Abdul Rahiman Musaliyar had come to assume the office in 1969. The above two gentlemen are respectively, the grand father and father of the petitioner. A few years back, with all good intentions it is found that a Committee had been formed consisting of leaders of the community and members of the Arakkal family for renovating the mosque. The petitioner claims that it was the understanding that the Committee will be dissolved after the proposed project, but nevertheless, he alleges that similar to the conduct of the proverbial camel, the Commitee refused to depart and began to attempt ouster of the Mutawalli. Petitioner’s father had therefore sought recourse through the civil court by filing an injunction suit as O.S. No. 764/1992, seeking to restrain the committee members from interfering in the affairs of the Wakf and its properties.
5. While the suit progressed, a doubt arose as to whether, after the Wakf Act, 1995, a suit if at all is maintainable. The learned Munsiff ultimately took the view that he has no jurisdiction to decide the issues arising in the suit. During the course of the proceedings a couple of interlocutory orders had been passed, and the aggrieved parties, as a matter of course, had subjected them to challenge. At the time of returning the plaint as well, certain orders for smooth functioning of the institution had been passed by the Court. But the justifiability of all such orders were doubted, and two Civil Revision Petitions therefore came to be filed. The whole issues, including the Civil Miscellaneous Applications filed in the District Court, were thereupon heard by a learned Single Judge (C.R.P. Nos. 914 of 2001 and 921 of 2001) and stands disposed of on 25.7.2002. This judgment is the main weapon in the arsenal of the respondents to urge that the subsequent proceedings before the Wakf Board are not maintainable.
6. The plaintiff Abdul Rahiman Musaliyar did not remain to see the culmination of the proceedings in the High Court. He had passed away on 13.6.2002. The petitioner had sought to implead himself in the pending proceedings. He claimed that he had come to be appointed as the Mutawalli, even during the life time of his father, as desired by him, and in view of the consent of the family members. He also claimed that the wish had been incorporated in the Will of Abdul Rahiman Musaliyar, his father.
7. The application had been opposed by the respondents. Noticing the objections, the learned Judge while disposing of the Civil Revision Petition and appeals, had given him a qualified permission to partake in the proceedings pending in the High Court, but leaving open the eligibility or right for impleadment in the suit to be decided by the civil court. On the question agitated in the Civil Revision Petitions, as to whether the suit had been barred because of the advent of the Wakf Act, the Court held as following:
“The right of office of Mutawalli being a common law right and in the absence of any
provision specifically requiring such disputes to be adjudicated by the Tribunal and this being
a suit for injunction arelief which can be granted only by the civil court, for reasons stated above, I hold that the present suit instituted is within the jurisdiction of the civil court to be tried and decided”;
8. The counsel appearing for the petitioner pointed out that notwithstanding the finding above as also the remand, the observations in paragraph 26 of the judgment may make an adjudication cumbersome. The observation is as following:
“There is no finding here as to whether there are any other issues which are specifically required to be decided by the Tribunal under the Act. The suit as a whole cannot be said to be one falling outside the jurisdiction of the civil court, for the reasons already mentioned above, hence it would be proper for the court below to consider various issues arising in the case and if it finds later that any such issues required to be decided by the Tribunal under the Act, then it will be open to the Court below to take recourse to the option pointed out by the Apex Court as aforesaid for referring that particular issue to the Tribunal and after such decision is received, to decide the case fully. Hence, it is for the Court below to frame issues and advert to each of them and see whether any particular issue is required to be decided by the Tribunal and if so, to refer the same alone for the decision of the Tribunal.”
9. However, apart from recapitulating the background it may not be necessary for me to dwell further on these realms. The question is whether the respondents are within their rights to clip the wings of the petitioner by compelling an adjudication purely on the regions they suggest/dictate. Immediately after the judgment was delivered in the Civil Revision Petition, it appears that the petitioner had placed some of his affairs for consideration and decision by the Wakf Board. Even during the months of June and July, there is sufficient indication to see that in addition to the fight in the court, the parties had exchanged blows leading to police case. The petitioner had addressed the Wakf Board on 20.6.2002, as evidenced by Ext. P5, requesting that he may be issued with a certificate as the Mutawalli of the Wakf, since his father had died on 13.6.2002. He had also made reference to Ext. P4 letter dated 19.1.2002 addressed by his father to the Board about the change that had been brought about.
10. It is seen that earlier a definite step was not being taken by the Wakf Board, as according to the petitioner, their initial stand adopted in the pending suit was unhelpful. I may also notice that the respondents, by Ext. R2(b) had also indicated that Ext. P4 had been replied by the Wakf Board, advising him that it may not be possible to issue a certificate in view of the pendency of O.S. No. 764 of 1992.
11. As referred to earlier, on 27.7.2002 the petitioner had filed an application before the Wakf Board and obtained Ext. P7 interim order. Aggrieved by this order, the respondents had approached the Government and the Government had obliged them by issuing Ext. P1 (which has been extracted earlier in full). The learned senior counsel contends that it was within the rights of the Government to issue orders in the
nature of Ext. P1. This was because the petitioner had acted without bona fides, and misled the Wakf Board, and the Board refused to retrace their mistaken steps, and omitted to notice the judgment in the Civil Revision Petition. It is averred in the counter affidavit as following:
“…….The points in issue included the rights put forward by the petitioner’s father and
others. The decision of this Hon’ble Court has placed the matters in dispute before the Court
of the Munsiff. In this state of affairs it is wrong on the part of the petitioner to seek relief of the
kind prayed for by him.”
This is in supplement to the earlier averment that:
“…..The petitioner’s father having chosen to seek an adjudication regarding his imaginary
and fanciful right in the Court of the Munsiff was not entitled to run away from the pleadings
put forward by him.”
Therefore, when the Wakf Board ignored the order of the High Court, according to the respondents, they had no other recourse than to approach the Government.
12. As I could see, the learned Judge had remanded the matter on the assumption that what had been pending before the Munsiff Court was suit for injunction and since the Wakf Tribunal, according to him, could not have granted a relief, as had been applied for. As the parties have no dispute about the finding, I have been spared of expressing any opinion about this proposition. But, it is not only a suit for injunction simpliciter that is pending, as could be gatherable from the averments in the counter affidavit, just now referred to, and also as could be seen from the observations of the learned Judge, whereunder it had been directed that on an^ such issues the opinion of the Tribunal, if necessary, was to be solicited.
13. In this context, I have to hold that the preliminary argument of the respondent cannot be countenanced. The challenge is picturized as an abuse of the process of Court. It definitely is not. The petitioner could not have permitted Ext. P1 to remain, as it adversely affected him. Nor could he have participated in the adjudication before the Government, as it would have amounted an acquiescence. Either way he was forced to challenge the order, and it was within his civil rights.
14. The respondents apparently have also overlooked another aspect. The petitioner’s right for getting himself impleaded or getting himself transposed as plaintiff in the civil proceedings, as at present, may not be a smooth sail for him. The civil court has yet to take a decision on such claim, after a detailed procedure which had been prescribed because of the judgment in the C.R.P. His rights may be upheld, or there is chance of the claims being rebuffed. Further, in view of the finality of the decision, in the Civil Revision Petition, for the time being it has to be however assumed that only
the issue of injunction is left for adjudication of the civil court. If that be so, it is also difficult to concur with the contentions of the respondents that the petitioner had erred in approaching the Wakf Board when the respondents challenge the very right of the petitioner to function as Mutawalli, in respect of the Wakf properties. The petitioner claims such right on the plea that it is a private Wakf and he has been installed duly to discharge the duties of Mutawalli. Such claims can be authoritatively decided only as prescribed by the Wakf Act, as rightly observed by the learned Judge in the C.R.P. I have no doubt in my mind that as far as these issues are concerned Section 85 has introduced a ban of jurisdiction of civil courts. This also prompts me to overrule the objections of the respondents.
15, The powers and functions of the Board as laid down by Section 32 of the Act are comprehensive. Board can give directions for the administration of Wakfs; it can decide on the issues about the appointment and removal of mutawallis in accordance with the provisions of the Act and also generally do 11 such acts as may be necessary for the control, maintenance and administration of Wakfs. The respondents have not gone to the extent of contending that the petitioner’s father was an usurper. Petitioner claims right through him. If a dispute is there, it is capable of adjudication only by the machinery prescribed by the Wakf Act. I am only pointing out that if the petitioner was advised to move the Wakf Board on the matters in issue, it was not only prudent, but unexceptionable. When his rights stand threatened, he is expected to act and he has acted. Therefore, the contention of the respondents that he has to await indefinitely, is an argument purely self serving and may only result in giving milage to them.
16. The judgment of the learned single Judge cannot be understood as authorising the civil court to decide anything which comes within the jurisdiction of the Wakf Board and the Tribunal. Therefore, I hold that the proceedings initiated at the instance of the petitioner before the Wakf Board was valid and proper and the Board had jurisdiction to enquire and examine the same. The pendency of the suit would not have prevented the petitioner or interfered with his rights to move in this direction, or disabled the Board from deciding any matters on which they had the exclusive jurisdiction. Even if we strain the definition of the term ‘Mutawalli’, it is difficult to visualise the Committee represented by the respondents as Mutawalli, but I am not finally pronouncing on that question, though urged by the parties in these proceedings.
17. Now, we have to advert to the challenge that has been specifically posed in this Original Petition. Sri. Abdul Azeez submits that Ext. P1 passed by the Government was without jurisdiction. Though Section 97 of the Act had been adverted to by the learned counsel for the respondents as defence, the difficulty in application of the above said section will come to mind even by a mere reading of the section which is extracted herein below:
“97. Directions by State Government – Subject to any directions issued by the Central Government under Section 96, the State Government may, from time to time, give to the Board such
general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with such directions”.
The power is only to give special pr general directions to the Board for the performance of its functions. That is not the case here. Likewise, Section 66 which deals with powers of appointment and removal of mutawalli at times can be exercised by the State Government. But, this contingency also has not arisen here. Therefore, I have to take serious note of the allegation of the petitioner that the respondent had without justification taken up the issue to the Government, who had no competence to entertain the matter. The Rule of law has to prevail, and the jurisdiction of authorities are well defined. In the matter at hand, Government cannot therefore usurp powers which they do not possess. Therefore, I have to hold that Ext, P1 has been issued in an arbitrary manner and in exercise of the imaginary powers. The Joint Secretary of the Revenue Department could not have passed Ext. P1 order so as to interdict the proceedings of the Wakf Board. The Board had received a petition which had been duly filed before them and had chosen to number it as valid proceedings. Ext. P1 shows that the Government proposes to dispose of the petition that had been filed by the third respondent. It is not clear as to what was the petition, or under what legal provision that had been made. Such a petition is clearly misconceived and ought to , have been rejected as not entertainable. It had also been overlooked that the affected persons were not even made parties to the proceedings while soliciting interim orders.
18. Consequently, I set aside Ext. P1. Proceedings before the Wakf Board had been validly commenced and they deserve to be decided in accordance with law. The Government is directed to close the files which has been opened at the instance of the third respondent, leading to Ext. P1 and advice the parties accordingly.
The Original Petition is allowed to the above extent. Parties are directed to bear their respective costs.