The application for mosque reconstruction was non-maintainable as it was improperly filed during the pendency of another suit, emphasizing statutory compliance under the Waqf Act.

ORDER

AMIT RAWAL, J.

The present revision petition is directed against the order dated 25.11.2023 in W.O.A. No.57 of 2022 of the Wakf Tribunal, Kozhikode which was filed against the order dated 12.10.2022 rendered in I.A. No.176 of 2022 in the pending O.P. No.239 of 2018 passed by the Waqf Board, Kozhikode.

2. The petitioner Mohammed Kutty, the former office bearer of the mahallu committee, along with four more persons had instituted O.P. No.239 of 2018 under Section 69 of the Waqf Act , 1995 for framing of the scheme to administer the Thalakkattoor Mahal Juma Masjid. During the pendency of the aforementioned suit before the Waqf Board, a subsequent cause of action arose regarding the demolition of some part of the mosque necessitating the petitioner/plaintiff to file another suit O.S. No.47 of 2022 before the Waqf Tribunal seeking restraint against the respondents therein from demolition of the mosque.

3. During the pendency of O.P. No.239 of 2018, respondent No.1, M.T. Haneefa Sakhafi, alleging to be the now office bearer, submitted I.A. No.176 of 2022 contending that the condition of the mosque is very dilapidated/deleterious and it required immediate reconstruction of the two blocks being one hundred and thirty (130) years old. The Chief Executive Officer, vide order dated 12.10.2022, while exercising the powers under Rule 98 of the Kerala Waqf Rules, allowed the aforementioned application whereby the Divisional Officer, Malappuram was directed to grant permission on the basis of the application after completing all legal formalities. It was also directed that the committee shall carry out the construction after completing all procedure as per law and the accounts shall be kept separately along with all supporting documents which shall be produced before the Board for auditing. The aforesaid order was assailed by two plaintiffs, Sri. Basheeer and Sri. Mohammed Kutty, in W.O.A. No.57 of 2022 but were not successful.

3. Sri. Mohamed Ravuf, the learned counsel appearing for the petitioner/plaintiff submitted that the Wakf Original Suit was actually renumbered as O.S. No.47 of 2022, whereas, originally, it was filed before the Munsiff Court as W.O.S No.209 of 2021 and there was an interim injunction with regard to the demolition of the Waqf property. Owing to the provisions of the Act, the matter was referred to the tribunal and the Original Suit was renumbered. The interim application, in the suit for framing of the scheme, was not maintainable, at the best it could have been submitted in the newly assigned pending W.O.S. No.47 of 2022. Even if the Divisional Officer of the Waqf Board had the power to entertain the application, it could not have been done without the indulgence of the tribunal owing to the pendency of the suit. In case the order under challenge is permitted to sustain, the suit pending would be rendered infructuous.

4. On the other hand, Sri. Firoz, learned counsel appearing on behalf of the contesting respondents in the Original Suit No.239 of 2018 contended that for framing the scheme under Section 69 , the condition precedent for any person who is interested is that the suit should be filed by five members. However, during the pendency of the suit, three members had already withdrawn and therefore the suit was not maintainable. The language of Rule 98 do not require any different interpretation as it empowers the Divisional Officer to entertain the request as and when the situation of such nature regarding the immediate reconstruction of the mosque warrants. In case the reconstruction of two blocks is not undertaken, it may result into any mishap owing to the footfall of the devotees and as well as the children who are also visiting for attending the classes in the Daras. The suit prima facie is not maintainable, therefore the revision petition would also not be maintainable and thus, same is liable to be dismissed for want of the conditions prescribed under of the Waqf Act .

5. Sri. Jamsheed Hafiz, the lea