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2023 Supreme(Online)(KER) 1084
HIGH COURT OF KERALA
AMIT RAWAL, C.S. Sudha, JJ
K.T.AKBAR ALI – Appellant
Versus
AKBAR – Respondent
CRP(WAKF) 35/2020
R.Ramadas, Sri.T.Sivadasan, Sreejith CK, Shri.T.K.Saidalikutty, SC, Wakf Board, Sri Jamsheed Hafiz SC Wakf
The court established that strict compliance with the Wakf Act's provisions is essential for any application relating to waqf management and scheme formulation.
Headnote:
Wakf - Revision Petition - Wakf Act Section 69 - The court examined the validity of applications for waqf scheme framing under Section 69, emphasizing the need for legitimate interested persons and substantial evidence to support claims of mismanagement.
Fact of the Case:
Respondents invoked the jurisdiction of the Wakf Board alleging mismanagement by the Muthawalli. The Board rejected their claim, leading to an appeal that was later allowed by the Tribunal, prompting the Muthawalli to seek a Civil Revision Petition.
Finding of the Court:
The court found that the Tribunal's order ignored critical requirements of the Wakf Act, particularly concerning the qualifications of interested persons, leading to a legally flawed decision.
Issues: Whether the applicants met the necessary qualifications under Section 69 of the Wakf Act to frame a scheme and whether the Tribunal acted within its legal jurisdiction.
Ratio Decidendi: The decision underscored the importance of strict adherence to the Wakf Act's requirements in recognizing interested parties and highlighted that inadequate evidence could lead to dismissal of the application for scheme framing.
Final Decision: The order of the Tribunal was set aside, and the Board's decision was upheld, allowing the petition.
JUDGMENT
Amit Rawal, J.
1. The present Civil Revision Petition (Wakf) is directed against the judgment dated 30.07.2020 of the Tribunal rendered in W.A.S.No.4/2019 preferred against the order dated
07.11.2016 in O.P.No.199/2014.
2. Succinctly the facts in brief are that the party respondent Nos.1 to 5 had invoked the jurisdiction of the Board under the provisions of Section 69 of the Wakf Act, 1995 , for framing a scheme on the ground that as per the audit report of 1973 the Muthawalli- petitioner who was arrayed as respondent in the aforementioned OP, was mis-managing the affairs of the Jama-ath which was registered with Wakf in 1961. Board after giving opportunity to the parties vide order dated 07.11.2016 rejected the claim. Against the aforementioned order, preferred appeal W.A.S.No.4/2019 which has been allowed. It is in this background, present C.R.P.(Wakf) on behalf of the petitioner/Muthawalli, who was appointed not as hereditary but by virtue of custom in 1971, is before us.
3. Sri.T.Sivadasan, learned counsel representing the petitioner submitted that for the purpose of framing scheme there has to be a joint application by minimum five interested persons as per section 69 of the Act. The 5th person was not even resident of that area nor a devotee of the Jama-ath as no document with regard to the monthly subscription being paid as a devotee of Jama-ath had been placed on record. The aforementioned application was not backed by any fresh document except some old audit report of 1973 which would have been effaced by lapse of time.
4. In the previous round only a draft scheme was prepared but was never notified. In these circumstances, if at all some persons actually were interested it could have been by fresh set of persons or even the same one with fresh material.
5. Per contra, learned counsel representing the party respondents supported the impugned order and submitted that order of the Tribunal is perfectly legal and justiciable in law for, the audit report has not been set aside and remained valid. The previous application for framing of the scheme had made much headway which leads upto framing of draft scheme but thereafter was not followed and could not be notified. Realising such defect, doors of the Wakf were knocked in O.P.No.199/2014.
6. On the other hand, Sri.Jamsheed Hafiz appearing on behalf of the Wakf Board supported the argument made by Sri.T.Sivadasan and also the order of the Wakf Board rejecting the prayer of the party respondent for framing of the scheme on the ground that out of five persons, one person was not falling within the explanation 'interested' as he was resident of a different Jama-ath and no document had been placed on record to show that he had been paying monthly subscription to the concerned Jama-ath.
7. We have heard the learned counsel for the parties and apprised the paper book.
8. Provisions of sub-section (1) of Section 69 envisage the following requirements for entertaining an application for framing of the scheme. Sub-section (1) of the Wakf Board Act reads as follows:
69. Power of Board to frame scheme for administration of waqf.—(1) Where the Board is satisfied after an enquiry, whether on its own motion or on the application of not less than five persons interested in any waqf, to frame a scheme for the proper administration of the waqf, it may, by an order, frame such scheme for the administration of the waqf, after giving reasonable opportunity and after consultation with the mutawalli or others in the prescribed manner.”
9. Since it was not a case of suo motu Wakf had to deal with the application strictly in compliance of the provisions of Wakf Act. The 5th person an applicant before the Wakf Board namely Sri.Salim had not been able to place on record any material to prima facie establish that he falls under the category of interested persons for, as per the practice and procedure every devotee is paying monthly subscription to particular Jama-ath. It is in that fashion and
