IMPORTANT POINT
The court established that beneficiaries can directly approach the Wakf Tribunal if the mutawalli neglects their duties regarding encroachments on Wakf property.

JUDGMENT :

Easwaran S., J.

Plaintiffs in O.S.No.1 of 2010 on the file of the Wakf Tribunal, Kollam are the petitioners before this Court in Civil Revision Petition.

2. Facts in brief for disposal of the present Revision Petition are as follows:

Petitioners are the members and beneficiaries of the first defendant Edava Muslim Jama-ath, a Wakf registered with the Wakf Board. Defendant Nos.2 to 4, the office bearers of the Managing Committee of the Wakf, being also the Muthawalli of the Wakf, colluded with defendant Nos.5 to 12, who are the local politicians, and permitted an alleged Edava Road Vikasana Samithi to encroach upon a considerable portion of the Wakf property and unauthorisedly utilized portions of the Masjid, Khabersthan, lands and other structures for alleged purposes of widening of the Edava– Kappil Road passing through the eastern side of the Wakf property. The suit was instituted under Section 94(2) of the Wakf Act read with Section 92 of the Code of Civil Procedure. The defendant Nos.1 to 4 filed a joint written statement contending among others that it is the Wakf Board who is vested with the powers of removal of encroachment and suit filed by the plaintiffs under Section 94 (2) of the Wakf Act is not maintainable. Defendant Nos.5 to 12 also appeared and filed a joint written statement stating that the suit filed before the Wakf Tribunal is not maintainable. On behalf of the plaintiff, Exts.A1 to A13 were marked and PW1 to PW3 were examined. Exts.C1 to C4 were marked as court exhibits. On the basis of the pleadings, the Tribunal framed the following issues:

“1. Whether the suit is maintainable?

2. Whether the court fee paid on the plaint is proper?

3. Whether the suit is bad for misjoinder of parties and non-joinder of necessary parties?

4. Whether the mandatory injunction sought for in the plaint is allowable ?

5. Whether the permanent prohibitory injunction sought for in the plaint is allowable?

6. Whether the prayer for recovery compensation of Rs.3,42,000/-from the defendants sought for in the plaint is allowable ?

7. Reliefs and costs.”

3. After considering the rival pleadings, the Tribunal came to conclusion that the suit filed by the plaintiffs invoking Section 94(2) of the Wakf Act was not maintainable and accordingly dismissed the suit giving liberty to the applicants – plaintiffs to move before the Wakf Board. Aggrieved by the dismissal of the suit, the plaintiffs have filed the present Revision Petition.

4. We have heard Sri.P.B.Subramanyan, learned counsel appearing for the Revision Petitioners and Sri.Jamsheed Hafiz, learned Standing Counsel appearing for respondent No.13.

5. As per the office report dated 04.09.2024, the service on the respondents is complete, however, there is no appearance for the respondents today when the matter was taken up for consideration by this Court. Sri.P.B.Subramanyan, learned counsel appearing for the revision petitioners submitted that the Tribunal erred egregiously in dismissing the suit as not on maintainable before the Tribunal. Learned counsel submitted that the power of the Wakf Board to remove the encroachments is contained under Section 54 of the Wakf Act. On receipt of a complaint regarding the encroachment of the Wakf property, it is incumbent upon the Chief Executive Officer to cause an enquiry into such complaint and thereafter pass suitable orders in this regard. Section 54(4) was subsequently amended by the Parliament with effect from 01.11.2013 entitling the Chief Executive Officer to move before the Tribunal and the Tribunal upon receipt of such application, shall pass an order directing that the encroachment from the Wakf property to be removed. Therefore, according to the learned counsel for the petitioners, the Chief Executive Officer, after the 2013 amendment, is no longer vested with the powers to remove the encroachment and he can only move before the Tribunal for suitable orders. It is the specific case of the petitioners that the Managing Committee of the