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.
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C.R.P.No.374 of 2007
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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
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L.A.A. NO. OF 2004
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J U D G M E N T
Dated July, 2007.