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Muthawalli vs Kerala Jama Ath Islami Hind on 5 July, 2007

Kerala High Court
Muthawalli vs Kerala Jama Ath Islami Hind on 5 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 374 of 2007()


1. MUTHAWALLI, MADEENA MASJID, PULLEPPADY
                      ...  Petitioner

                        Vs



1. KERALA JAMA ATH ISLAMI HIND,
                       ...       Respondent

2. BASHEER MUHIYIDHEEN, S/O MOIDU MOULAVI,

                For Petitioner  :SRI.T.KRISHNAN UNNI

                For Respondent  :SRI.T.H.ABDUL AZEEZ

The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :05/07/2007

 O R D E R
                                                                         C.R.

      KURIAN JOSEPH &  T.R.RAMACHANDRAN NAIR,  JJ.

                 ----------------------------------------------

                         C.R.P.No.374  of 2007

                 ----------------------------------------------

                        Dated  5th   July,  2007.


                                 O R D E R

Kurian Joseph, J.

Whether a suit or other legal proceedings can be

maintained on behalf of an unregistered Wakf for enforcement of

any of its rights before the Wakf Tribunal, is the crucial question

arising for consideration in this case. Petitioner is the plaintiff in

W.O.S.18/07 on the file of the Wakf Tribunal, Ernakulam. The

defendants are the respondents herein. The suit is one for

permanent prohibitory injunction. Petitioner is the Chairman of a

Trust managing Madeena Mazjid, Pullepady. One Abdul Sathar

Moulavi was appointed by the Muthavalli as Imam and Khathib of

the Mosque as per the Wakf deed. However, the first respondent

organization and the second respondent claimed that the second

respondent is the Imam and Khathib of the Mosque, as usually

nominated by the first respondent organization. On their attempt

to interfere with the control and management of the affairs of the

Mosque the suit was filed. Along with the suit, I.A.74/07 was filed

for temporary injunction. The suit and the application were

CRP NO.374/07 2

contested by the respondents. The application was disposed of

by the order under revision dated 14.5.2007 of the Wakf Tribunal

holding that the suit itself is not maintainable, in view of the bar

under Section 87 of the Wakf Act, 1995, since the Wakf is not

registered with the Wakf Board under Section 36 of the Wakf Act.

Consequently, the application was also held to be not

maintainable. However, partial relief was granted in favour of the

second respondent to continue as the Imam of the Mosque till the

disposal of the suit. It is the main contention of the revision

petitioner that the suit is one filed by the mutawalli of Madeena

Mazjid and the same is maintainable under Section 83(2) of the

Wakf Act, 1995. It is also contended that the bar provided under

Section 87 of the Act will not apply for maintaining a suit before

the Wakf Tribunal since the same is applicable only to the civil

court.

2. In order to appreciate the contentions taken by the

parties, it is necessary to refer to three relevant portions, (i)

Section 83 (1) and (2), (ii) Section 85 and (iii), Section 87 of the

Wakf Act, which read as follows :-

8

3. Constitution of Tribunals, etc.-

(1) The State Government shall, by notification in the Official

Gazette, constitute as many Tribunals as it may think fit, for the

CRP NO.374/07 3

determination of any dispute, question or other matter relating

to a wakf or wakf or wakf property under this Act and define the

local limits and jurisdiction under this Act of each of such

Tribunals.

(2) Any mutawalli, person interested in a wakf or any other

person aggrieved by an order made under this Act, or rules

made thereunder, may make an application within the time

specified in this Act or where no such time has been specified,

within such time as may be prescribed, to the Tribunal for the

determination of any dispute, question or other matter relating

to the wakf.”

“85.Bar of jurisdiction of civil courts:- No suit or other legal

proceeding shall lie in any civil court in respect of any dispute,

question or other matter relating to any wakf, wakf property or

other matter which is required by or under this Act to be

determined by a Tribunal.”

87. Bar to the enforcement of right on behalf of unreggistered

wakfs:-

(1) Notwithstanding anything contained in any other law for the

time being in force, no suit, appeal or other legal proceeding for

the enforcement of any right on behalf of any wakf which has

not been registered in accordance with the provisions of this

Act, shall be instituted or commenced or heard, tried or decided

by any court after the commencement of this Act, or where any

such suit, appeal or other legal proceeding had been instituted

or commenced before such commencement, no such suit,

appeal or other legal proceeding shall be continued, heard, tried

or decided by any court after such commencement unless such

wakf has been registered, in accordance with the provisions of

this Act.

(2) The provisions of sub-section (1) shall apply as far as may

be, to the claim for set off or any other claim made on behalf of

any wakf which has not been registered in accordance with the

provisions of this Act.”

As far as the jurisdiction of the Tribunal is concerned, the law is

well settled by a bench decision of this Court in Pookoya Haji v.

Cheriyakoya (2003(3) KLT 32) that “The words any dispute,

question or other matters relating to Wakf or Wakf property

CRP NO.374/07 4

under S.85 are wide enough to take in within its sweep not only

matters which are specifically conferred on the Tribunal by the

various provisions of the Act but also any dispute, question or any

other matter relating to any Wakf or Wakf property since those

powers have also been conferred on the Tribunal by the Wakf Act

itself. On examining the scheme of the Act and various

provisions we are of the view that the intention of the Legislature

is to resolve all disputes by one machinery and forum provided in

the Act itself, that is, the Wakf Tribunal and not by the Civil

Courts in the State”.

3. Under Section 83(2), (1)any mutawally or (2)

person interested in a Wakf or (3) any person aggrieved by an

order made under this Act is entitled to make an application to

the Tribunal for the determination of any dispute, question or

other matter relating to the Wakf. For thus approaching the Wakf

Tribunal there is no precondition regarding the registration of the

Wakf in question; the only jurisdictional factor is that the

application by any of the three enumerated categories should be

for the determination of any dispute, question or other matters

relating to Wakf. In this context, it is also profitable to note that

the “person interested in a wakf” is given a wide interpretation in

CRP NO.374/07 5

the Act itself, which reads as follows :-

3(k) “person interested in a wakf”, means any person who is

entitled to receive any pecuniary or other benefits from the

wakf and includes-

(i) any person who has a right to worship or to perform any

religious rite in a mosque, idgah, imambara, dargah, khangah,

maqbara, graveyard or any other religious institutions

connected with the wakf or to participate in any religious or

charitable institution under the wakf;

(ii) the wakf and any descendant of the wakf and the

mutawalli”

4. A close look at Section 87 would indicate that

notwithstanding anything contained in any other law for the time

being in force (and notwithstanding anything contained in the

Wakf Act) no suit or appeal or other legal proceeding for the

enforcement of any right on behalf of any Wakf shall be instituted

or commenced or heard, tried or decided by any court, if the

Wakf is not registered with the Wakf Board under Section 36 of

the Act, after the commencement of the Wakf Act. The second

limb of the provision clearly stipulates that no such suit, appeal or

legal proceeding instituted prior to the commencement of the Act

shall be continued by any court unless the Wakf has been

registered in accordance with the provisions of this Act. It is

significant to note that the Wakf Act, 1995 has used both

expressions, “Court” and “Tribunal” in many places. For

example, under Section 90(1) it is provided that “In every suit or

CRP NO.374/07 6

proceeding relating to a title or possession of a Wakf property or

the right of mutawalli or beneficiary, the court or Tribunal shall

issue notice to the Board at the cost of the party instituting such

suit or proceeding”. If the provisions are given a purposive

interpretation, it is clear that in respect of the rights of a Wakf

which are not enumerated under Section 83(1) and (2), a suit is

still maintainable before the civil court, in case the Wakf is

registered. Whether registered or not, for determination of any

dispute, question or any other matter relating to any Wakf or

Wakf property, the exclusive jurisdiction is on the Wakf Tribunal

constituted under Section 83 of the Act and not on the civil court.

The bar under Section 87 applies only to the civil court and not to

the Tribunal. A joint reading of Sections 83, 85 and 87 would

clearly show that the civil court has no jurisdiction to adjudicate

on any dispute, question or other matter relating to any Wakf and

Wakf property, or other matters which are to be determined by

the Tribunal constituted under Section 83 of the Act. However,

under Section 87, an additional privilege is granted to registered

Wakfs to institute a suit or appeal or other legal proceedings

before the civil court for the enforcement of any right on behalf of

such Wakf which is not related to the Wakf.

CRP NO.374/07 7

5. In the instant case, the Wakf Tribunal also has not

taken note of the fact that the plaintiff is styled as the mutawalli

of Madeena Mazjid. Under Section 83(2) any mutawalli is entitled

to make an application before the Tribunal for the determination

of any dispute, question or other matters relating to the Wakf.

Since the suit is one instituted by a person claiming to be the

mutawalli of a Wakf and since the questions apparently are

relating to the Wakf, for the only reason that the Wakf is not

registered with the Wakf Board under Section 36 of the Wakf Act,

it cannot be said that the suit is not maintainable before the Wakf

Tribunal. The bar under Section 87 will not apply to the instant

case. The suit is plainly maintainable before the Wakf Tribunal

under Section 83 read with Section 85 of the Wakf Act.

6. In the result, the order in I.A.74/07 in W.O.S.18/07

of the Wakf Tribunal, Ernakulam is set aside. During the

pendency of the revision petition, regarding Juma prayer in

Madeena Mazjid on Fridays, this Court has ordered that the Juma

prayer will be led by Shri.Abdul Sathar Moulavi. Kutuba (sermon)

during the Juma prayers will be delivered by the second

respondent herein. The said interim arrangement will continue

till the disposal of the suit. There will be a direction to the Wakf

CRP NO.374/07 8

Tribunal to dispose of the suit expeditiously.

7. In respect of several matters, it has come to the

notice of this Court that the Wakf Board is not made a party

either before this Court or the Tribunal. In view of the clear

mandate under Section 90 of the Act, in every suit or proceeding

relating to title or possession of a Wakf property or the right of

mutawalli or beneficiary, the court or Tribunal shall make the

Wakf Board a party, at the cost of the party instituting such suit

or proceedings. There will be a direction to the Wakf Tribunals in

the State to issue notice to the Wakf Board at the cost of the

party instituting the suit or proceedings, in case the same relates

to title or possession of a Wakf property or the right of the

mutawalli or beneficiary, if the Board is not already on the party

array. A copy of this judgment will be sent to all the Wakf

Tribunals in the State.

KURIAN JOSEPH, JUDGE.

T.R.RAMACHANDRAN NAIR, JUDGE.

tgs

CRP NO.374/07 9

KURIAN JOSEPH &

T.R.RAMACHANDRAN NAIR, JJ

———————————————-

L.A.A. NO. OF 2004

———————————————-

J U D G M E N T

Dated July, 2007.

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