Wakf Board's order cannot override traditional management norms without evidence of mismanagement.

Anil K. Narendran, J.

The 1^st respondent in O.A.No.10 of 2015 on the file of the Waqf Tribunal, Kozhikode, has filed this C.R.P(Wakf), invoking the provisions under Section 83 (9) of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 , challenging the order dated 21.04.2015 of the Kerala State Waqf Board in O.P.No.50 of 2007. By the order dated 30.11.2017, the Tribunal allowed O.A.No.10 of 2015, whereby the order dated 21.04.2015 of the Kerala State Waqf Board in O.P.No.50 of 2007 was set aside.

Paragraphs 15 to 19 of that order read thus;

“15. In the impugned order of the Wakf Board, it is stated that there is admission of the respondents that the first respondent is old lady who is incapable of day to day management of the wakf. But there is no such admission either in the counter statement filed by the respondents or in the evidence of RW1 that the mutawalli being an old lady is not capable of managing the wakf. So, the above said finding in the impugned order is factually incorrect.

16. Admittedly, the wakf has been in the management of the Arakkal Swaroopam from time immemorial, which is the established custom and usage. It is also conceded by all the parties that the eldest female member of the Sthani of the Arakkal Dynasty became the mutawalli of the mosque in question. The Wakf Board has not initiated any proceedings against the mutawalli hitherto for violating any of her functions. Moreover, it is seen from the documents that the mutawalli used to submit annual statement of accounts before the Wakf Board and those are accepted without any objection. The Wakf Board had no occasion to initiate penal provisions prescribed u/s.61 of the Wakf Act , which deals with the penalties for violation of the statutory duties imposed on the mutawalli. That aspect also proabalised the case of the applicants.

17. The next ground on which the Wakf Board had decided to frame the scheme is that the mutawalli used to collect donations and contributions from the mahal members and the public for the development and maintenance of the wakf. But, it is come out in the evidence that the mutawalli used to collect Rs.14,000/- as the rental income from 8 shop rooms. Moreover, the mutawalli used to receive periodical contributions from different beneficiaries. It is settled that “the participation by the public in the management of the mosque and subscriptions and donations is not inconsistent with the mutawalliship or the person in office. A member of the public, by completing the construction of the mosque and by making improvements in it, whether with his own funds or funds raised by public subscriptions, cannot disentitle the person who has the right to mutawalliship and himself becomes the mutawalli. Mohammedan Law permits anybody to do such acts of piety which the mutawalli cannot refuse" vide decision Ali Muhammed V. Muhammed Yousaf [AIR 1962 Orissa 111]. So, in the light of the above said factual position coupled with the legal proposition, the above said finding of the Wakf Board is legally unsustainable.

18. The next ground on which the Wakf Board proceeded to invoke Section 69 of the Wakf Act since it is a public wakf, the public participation is necessary for the proper administration of the wakf. But, as already found, no illegalities are found in the management of the present mutawalli. According to the Wakf Board, the mutawalli is acting as a dictator and hence the mutawalli is to be changed. The above said aspect is only an allegation levelled by the petitioners in the OP. There is no evidence to support the above said contention. Moreover, in order to make the management a collective one, the mutawalli has nominated some of the persons in the locality having knowledge in the relevant fields, so as to assist her in the management. This practice gets support from Mulla's Principles of Muhammedan Law, 19^th Edition at page 195 as follows: “a mutawalli has no power to transfer the office to another unless such