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2024 Supreme(Online)(KER) 40601
HIGH COURT OF KERALA
AMIT RAWAL, Easwaran S., JJ
SAITHOONA ISLAMIC CENTRE AND JUMA MASJID – Appellant
Versus
N.K. ASHRAF – Respondent
CRP(WAKF) 12/2021
T.SETHUMADHAVAN (SR.), SMT.PREETHI. P.V., SRI.M.V.BALAGOPAL, T.H.ABDUL AZEEZ, K.P.MAJEED, SHRI.T.K.SAIDALIKUTTY, SMT.MAYA CHANDRAN, MOHAMMED SADIQUE.T.A, SRI JAMSHEED HAFIZ
The mandatory requirement of five petitioners under Section 69(1) of the Kerala Waqf Act is critical; withdrawal of some petitioners invalidates the application.
Headnote:(A) Kerala Waqf Act, 1995 - Sections 32, 47, 50, 63, 69, and 70 - Application for framing a scheme dismissed by Waqf Board - Tribunal allowed appeal and remanded matter back to Waqf Board - Revision petition against Tribunal's order - Requirement of minimum five persons under Section 69(1) not satisfied due to withdrawal of some petitioners - Tribunal misconstrued the scope of the statement of withdrawal - Order of Tribunal set aside. (Paras 1, 10, 11)
(B) Waqf Administration - The mandatory requirement of a minimum of five persons to initiate action under Section 69(1) is critical for the validity of the application. (Paras 9, 10)
Facts of the case:
The original application was dismissed by the Waqf Board due to the existence of a byelaw. The Tribunal allowed the appeal and remanded the matter, despite some petitioners withdrawing from the proceedings.
Findings of Court:
The Tribunal's order was set aside as the requirement of Section 69 was not fulfilled due to the withdrawal of certain petitioners.
Issues: The main issue was whether the Tribunal erred in considering the appeal after some petitioners withdrew from the original proceedings.
Ratio Decidendi: The court held that the mandatory requirement under Section 69(1) was not satisfied when some petitioners withdrew, rendering the Tribunal's order invalid.
Result: Revision petition allowed; order of the Waqf Tribunal set aside.
O R D E R
Easwaran S.,J.
Respondents 1 to 3 along with another four persons (respondent Nos.5 to 8 herein) approached the Wakf Board in OP No.14/2016, an application filed under Sections 32 , 47, 50, 63, 69 read with Section 70 of the Kerala Waqf Act, 1995 for framing a scheme. By order dated 19.2.2019, the application was dismissed. Aggrieved by the same, three of the petitioners filed an appeal before the Tribunal under Section 69 (3) of the Waqf Act, 1995. The Tribunal allowed the appeal and set aside the order passed in OP No.14/2016 and remanded the matter back to the Waqf Board for finalisation of the scheme. It is aggrieved by the aforesaid order that respondents 2 to 5 in the appeal have approached this Court by way of this revision.
2. In the nature of the order that we are proposing to pass, a detailed narration of the facts may not be required.
3. The Waqf in question was registered as 7292/RA showing one Sri.Muhammed Sajid as the mutawalli. The first document is the waqf deed executed by Sri.Sabir Muhammed on 25.5.2004 in favour of the President, Secretary and Treasurer of Saithoona Masjid Committee. In the said document, Sri.Sabir Muhammed, the waqif, had dedicated the property to the Masjid Committee. Later Sri.Sajid Muhammed on 25.10.2005 also executed a waqf deed in favour of the President, Secretary and Treasurer of Saithoona Masjid Committee by relinquishing all his rights. The wife of Sri.Sajid Muhammed also executed a waqf deed on 25.10.2005 covering six cents of land situated on the southern side of the ten cents, where the Mosque is situated. Therefore, the Masjid Committee was managing the property as muthawalli. On 21.11.2005, the property was registered by the Waqf Board. While so, an application was filed before the Waqf Board in the year 2016 contending that the Committee was not conducting the affairs of the mosque properly and that the accounts were not properly audited. The Waqf Board appointed an auditor who gave a report stating that there were some errors in the audit and accordingly directed them to rectify the same. It is pertinent to mention that at the time of filing of the original application before the Waqf Board, there were seven petitioners. This satisfied the mandate under Section 69 (1) of the Waqf Act, 1995. The Waqf Board did not deem it fit to entertain the said application, especially since there was already a byelaw in existence. Accordingly, the Board dismissed the application. While preferring the appeal, all these seven petitioners did not join the cause and only three of them filed the appeal. Interestingly, before the Tribunal, the other petitioners, who did not join the appellants before the Tribunal, filed a statement in the appeal stating that they be permitted to withdraw from the appeal as well as from the original proceedings before the Waqf Board. Pertinently, such an application was also filed before the Waqf Board, but however, the same was not taken into consideration. Notwithstanding the said statement, the Tribunal formed an opinion that the appeal being the continuation of the original proceedings, it is immaterial that four persons have backed out of the litigation and accordingly, proceeded to consider the case on merits and set aside the order of the Waqf Board and remanded the matter back to the Waqf Board for framing the scheme. Hence, the revision petition.
4. Heard Sri.T.Sethumadhavan, the learned Senior Counsel assisted by Sri.Pramodh Kumar M. appearing for the revision petitioners and Sri.T.H.Abdul Azeez assisted by Sri.K.P.Majeed appearing for respondents 1 to 3 and Sri.Jamsheed Hafiz, the learned Standing Counsel appearing for the 4th respondent Waqf Board.
5. The learned Senior Counsel Sri.T.Sethumadhavan primarily contended that the Tribunal ought not to have gone into the merits of the case, especially since the very substratum of the application under Section 69 (1) got eroded as soon as respondents 6 to 9 filed a statement expressing their willing
