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Judges : M.RAMACHANDRAN
Mohammed Ibrahim - Appellant
Versus
State of Kerala - Respondent
Case No : O.P. No. 23833 of 2002
Decided On : 09/25/2002
Advocates Appeared :
T.H. Abdul Azeez; For Petitioner Viju Thomas; T. Sethumadhavan; For Respondents
Wakf Act –Sections 32, 85, 96, 97 –Jurisdiction –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 –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 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 –Held, Court Cannot 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 S. 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 –The power is only to give special or general directions to the Board for the performance of its functions –That is not the case here – Therefore, Court has 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, Court has 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 –Petition allowed
1. Considering a petition filed by the petitioner under S.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 parte 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
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