IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32658 of 2007(S)
1. M.A.MUHAMMED KUNJU,
1. BIJU, S/O. SAINUDEEN,
2. MUHAMMED KUNJU E.Y.,
3. KAMARUDEEN PILLAI, S/O.ABDULLA RAWTHER,
4. M. MUHAMMED BASHIR,
5. THE KERALA STATE WAKF BOARD,
6. THE GOVERNMENT OF KERALA,
7. UNION OF INDIA,
For Petitioner :SRI.S.ABDUL RAZZAK
For Respondent :SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
---------------------------------------------------------------- W.P.(C)NO. 32658 OF 2007
---------------------------------------------------------------- Dated this the 4th day of April, 2008
The Writ Petition is filed with the following prayers: "i) To issue a writ of certiorari or other
appropriate writ, direction or order, calling for
the records leading to Exht.P1 to P3 and P5 and
quashing the same.
ii) To declare that the general power of the
Wakf Tribunal under Section 83 of the Wakf
Act is not derogatory to the specific powers of
the Wakf Board under Sections 69 to 71 of the
2. The petitioner is the President of Kollakadavu Juma-ath. Ext.P5 interim order passed by the Wakf Tribunal, Kollam is under challenge in this Writ Petition. As per Ext.P5 order, the Tribunal directed the parties to maintain status quo till the matter is heard on merits and appropriate decision taken on the application for interim injunction. The dispute is between the petitioner and respondents 1 and 2 who are the plaintiffs in O.S. No.20 of 2007 on the file of the Wakf Tribunal, Kollam. Ext.P2 is the plaint originally filed before the Munsiff's Court, Chengannur and W.P.(C)NO.32658/2007 2
subsequently returned by the court to be presented before the appropriate forum finding that the civil court has no jurisdiction. The same suit was thus filed before the Wakf Tribunal Kollam and numbered as O.S. No.20 of 2007.
3. Kollakadavu Juma-ath is a Wakf registered under the Wakf Act. The administration and management of the Juma-ath is vested in the Managing Committee elected as per the bye laws of the Juma-ath. In Ext.P2 suit it is stated that the President and certain other office bearers of the Juma-ath constituted an election committee with the 4th respondent as its convener and in July 2007 published election conditions for conducting election of the Juma-ath altering the basic structures of the committee. Many changes were introduced in the election process totally discarding the real and original bye law and the proposed amendment of the original bye law was neither placed before the general body nor approved by it. It is also alleged in the suit that the constitution of the election committee and appointment of the 4th respondent as the convener are illegal and that they have no right to conduct the election in violation of the bye law. It is also averred that the President or other office bearers of the Juma-ath have no right to publish election notification against the provisions of the 1957 by law which is in force or to conduct election W.P.(C)NO.32658/2007 3
in accordance with the said election notification. According to the plaintiffs, the proposed election is illegal and void since it is against the bye law and was published against the provisions of the bye law and, therefore, the conduct of the defendants is illegal and has to be declared as null and void. Subsequently, the same plaintiffs filed another petition before the Wakf Board as W.O.S. No.92 of 2007 reiterating the same averments. It is also stated in paragraph 6 of Ext.P6 that the illegality committed by the defendants in acting against the bye law has resulted in causing hindrance to the smooth administration of the Wakf and that steps are taken by the defendants to conduct the election illegally and against the terms of the bye law and that the said conduct is also causing hindrance to the welfare and unity of the members of the Juma-ath. In short, the grievance of respondents 1 and 2 is that the affairs of the Wakf in question are being mismanaged by the committee in power and,therefore, the Wakf was not functioning properly and hence requires interference.
4. Section 32 of the Wakf Act, 1995 (hereinafter referred to as "the Act") deals with the powers and functions of the Wakf Board and confers power on the Wakf Board to administer, manage, control, supervise the Wakf and to regulate the powers of mutawalli in so far as it relates to the W.P.(C)NO.32658/2007 4
management of Wakf properties. Section 67 of the Act confers supervisory power on the Wakf Board in relation to such Wakfs which are managed by a committee. Under this section, the committee is required to function under the direction, control and supervision of the Board and it shall abide by such directions of the Board. The Wakf Board is also empowered to supersede such committee if it is satisfied that such committee is not functioning properly or that it is being mismanaged or it is necessary to do so in the interest of the Wakf. Sub-section 4 of Section 67 of the Act enables any person aggrieved by the order of the Wakf Board to appeal to the Tribunal within sixty days from the date of such order. Under Section 67 of the Act, the Managing Committed is required ; to function under the direction, control and supervision of the Wakf Board. Such committee also shall abide by the other directions issued by the Board for effective management. In respect of any scheme made by the committee for the management of the Wakf, the Wakf Board is empowered to modify such scheme it it is satisfied that that such scheme made by the committee is inconsistent with any provision of the Act or any Rule made thereunder or with the directions of the Wakf Board and , therefore, the Wakf Board can modify such scheme to bring it in conformity with the directions of the Wakf or of the provisions of the Act or any Rule made thereunder.
5. The powers of the Wakf Board stipulated under Sections 32 and 67 of the Act relate to administration and management of Wakf property. Sub-section 2 of Section 67 of the Act states that notwithstanding anything contained in this Act and in the deed of the Wakf, the Board may, if it is satisfied that the Managing Committee is not functioning properly and satisfactorily or that the Wakf is being mismanaged and that in the interest of its proper management, it is necessary to do so, by an order, supersede such committee and on such supersession, any direction of the Wakf, in so far as it relates to the constitution of the committee, shall cease to have any force.
6. From the provisions quoted above, it is abundantly clear that the power of administration, management and control of a Wakf shall vest in the Wakf Board and that a duty is cast on the Board to exercise its powers , if the Board finds that the committee is mismanaging the affairs of the Wakf and if necessary, to supersede such committees.
7. In this case, the allegation in Exts.P2 and P6 is that the present committee is acting against the interest of the Wakf. The allegation is that they are violating the provisions of the bye law and proceeding to W.P.(C)NO.32658/2007 6
manage the affairs of the Wakf by resorting to conduct an illegal election.
8. The Wakf Tribunal is constituted for the purpose mentioned in Section 83 of the Act. It is an adjudicatory Body The power to initiate action against a committee for mismanagement is a power specifically assigned to the Wakf Board under Section 67 read with Section 32 of the Act. Section 32 of the Act provides for powers and functions of the Board. Where a statute creates different authorities to exercise their respective functions thereunder, each of such authority must exercise the functions within the four corners of the statute. The Supreme Court in M.P. Wakf Board v. Subhan Shah (2006)10 S.C.C. 696 had considered the powers and jurisdiction of the statutory authorities under the Wakf Act and held that different authorities are created by the same statute to exercise their respective functions within the four corners of the statute. The Supreme Court further held that the Tribunal could not usurp the jurisdiction of the Board in the matter of framing of scheme or managing the affairs of the Wakf. This Court in the decision reported in Kunhimohammed Haji v. Darul Huda Islamic Academy, 2008(1) K.L.T. 957 examined similar provisions in the Wakf Act and held that the function of registration of a property as Wakf property, being that of the W.P.(C)NO.32658/2007 7
Board and since it is the duty of the Board in the process to decide a question as to whether a property is Wakf or not, it is for the Board to consider and decide the question at the first instance. The Tribunal can be called upon only to adjudicate on and after the decision taken by the Board on the disputed question. This Court rendered the said decision in the light of the decision of the Supreme Court reported in M.P. Wakf Board v. Subhan Shah (2006)10 S.C.C. 696 .
9. Learned counsel appearing for the respondents brought to our notice the decisions of this Court reported in Pookoya Haji v. Cheriyakoya, 2003(3)K.L.T. 32 and Madeena Masjid v. Kerala Jama Ath Islami Hind, 2007(3) K.L.T. 800 to contend that the jurisdiction of the Tribunal is wide enough to determine any dispute or question or other matter relating to Wakf or Wakf property. It is true that Section 83 of the Act is wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act, but also any dispute, question or any other matter relating to any Wakf or Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act itself and that on examining the scheme of the Act and various provisions, it is clear that the intention of the Legislature is to resolve all disputes by one machinery and forum W.P.(C)NO.32658/2007 8
provided in the Act itself, that is, the Wakf Tribunal and not by the civil courts in the State. The principles stated by the Division Bench in Pookoya Haju v. Cheriyakoya, 2003(3)K.L.T. 32 was followed in the decision reported in Madeena Masjid v. Kerala Jama Ath Islami Hind, 2007(3) K.L.T. 800. The question before this Court in the aforesaid cases was whether on a dispute on Wakf property, the exclusive jurisdiction is on the Wakf Tribunal constituted under Section 83 of the Act or whether the civil court has got any jurisdiction over the matter. This Court held that that a joint reading of Sections 83, 85 and 87 of the Act would clearly show that the civil court has no jurisdiction to adjudicate on any dispute, question or other matter relating to any Wakf and Wakf property or other matters which are to be determined by the Tribunal constituted under Section 83 of the Act.
10. Learned counsel for the petitioner contended that the Wakf Tribunal lacks inherent jurisdiction to entertain and pass orders in the suit of the like nature. According to him, any order passed by a court without jurisdiction would be coram non judice, being a nullity and therefore should not be given effect to. According to the learned counsel, jurisdiction as to subject matter stands on a different footing to that of territorial and pecuniary jurisdiction. It is argued that since the Tribunal W.P.(C)NO.32658/2007 9
has no jurisdiction to try the case, the interim order passed by the court is a nullity.
11. It is a settled position that so far as territorial and pecuniary jurisdiction are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is also well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally different. If the court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by the statue, any orders or judgments passed by such a court having no jurisdiction is a nullity. The Supreme Court in the decision reported in Hasham Abbas Sayyad v. Usman Abbas Sayyad (2007)2 S.C.C. 355 held that distinction must be made between the decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 C.P.C. and a decree passed by the court having no jurisdiction in regard to the subject matter of the suit. The Supreme Court held that whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily, the second category of the cases would be interfered with.
12. It is settled principle that wherever jurisdiction is conferred on an authority under a special statute and such jurisdiction is conferred upon certain specific terms, those terms should be complied with in order to create a jurisdiction and if they are not complied with, the jurisdiction does not arise. The original power to manage, administer and control the affairs of each and every Wakf, going by the statute is unambiguously conferred on the Wakf Board. The Wakf Board alone shall have the power to correct mal administration and mismanagement and it is empowered to issue suitable directions including the power of supersession. Under the provisions, the Wakf Board is also empowered to issue appropriate directions for the effective and smooth functioning of the Wakf. The provisions, namely, Sections 32 and 67 of the Act deal with the said specific power. Section 70 of the Act empowers the Wakf Board to initiate enquiry regarding the administration of the Wakf. Under the said section, if there is complaint regarding the administration of the Wakf, the Wakf Board can initiate enquiry and on being satisfied that there are reasonable grounds for believing that the affairs of the Wakf are being mismanaged, it shall take such action as it deems fit.
13. Going by the averments in Ext.P2 suit, we find that the grievance of the plaintiffs in that suit who are respondents 1 and 2 herein W.P.(C)NO.32658/2007 11
is that the affairs of the Wakf were being mismanaged by the then committee members . The committee is duty bound to apply and follow the provisions of the bye law for the effective management of the Wakf. If they are not doing the same and resorting to activities which go directly against the tenor and spirit of the bye law, certainly that is a case of mismanagement of the affairs of the Wakf. Whether such mismanagement relates to the conduct of election, administration of the Wakf fund, the conduct of members and office bearers not befitting to their position and other hosts of misdeeds, it is the function and duty of the Wakf Board at first instance to set right things and issue appropriate orders for the proper and benevolent administration of the Wakf. If any such circumstance arises, any person interested in the Wakf can approach the Wakf Board for appropriate direction. In this case also there is a specific averment in Ext.P6 that the conduct and functioning of the committee is in violation of the provisions of the bye law and that there are instances where the affairs of the Wakf are being mismanaged and therefore the aggrieved persons have to approach the Wakf Board. Section 67(1) of the Act also unambiguously point out that the committee shall function under the direction, control and supervision of the Wakf Board and abide by such directions as the Board may issue from time to time. Sections 67(2) and 70 of the Act empower the Wakf Board to take action for mal functioning W.P.(C)NO.32658/2007 12
and mismanagement of the affairs of the Wakf. The same Act and the same provision, namely, Section 67(4) specifically confers jurisdiction on the Wakf Tribunal to sit in appeal and decide the legality or otherwise of the orders passed by the Wakf Board.
14. The sum and substance of the material averments in Exts.P2 and P6 show that the grievance basically is regarding the mal functioning and mismanagement of the affairs of the Wakf. Whatever be the reliefs sought for in the suit, the contents of Exts.P2 and P6 will unmistakably point out that the basic question is whether the managing committee can disown and violate the provisions of the bye law and do things as it thinks fit which, under the terms of the bye law, they are not expected to do. The reliefs sought for in Ext.P2 are (i) to set aside the conditions published for the ensuing election as null and void since it violates the provisions of the bye law and (ii) for an order of injunction restraining the defendants from convening the general body after conducting the election in accordance with their whims and fancies. The prayer in Ext.P6 is to enquire into the affairs of the Wakf and to supersede the present committee and to stay all further proceedings of the ensuing election. If the Tribunal has no jurisdiction to decide the basic question as to whether the affairs of the Wakf are being mismanaged or mal administered, the W.P.(C)NO.32658/2007 13
body entrusted with the powers to pass appropriate orders is the Wakf Board. Therefore, the suit instituted before the Wakf Tribunal on the basis of the set of facts mentioned above is a matter to be considered by the Wakf Board at the first instance. Therefore, every order passed, interim or final, is without jurisdiction since the Tribunal lacks jurisdiction over the subject matter.
15. This Court by interim order dated 2.11.2007 permitted the election originally scheduled to be held on 4.11.2007 to go on and issued a further direction that the result shall not be declared. We also permitted the committee in power as of now to continue. By order dated 20.11.2007, we directed the Returning Officer to count the votes in accordance with law and file a report before this Court in a sealed cover without declaring the results. In the counter affidavit filed by the 4th respondent who is the convener of the new committee for Bye law amendment and conduct of election formed on 25.5.2007, it is stated that the bye law was amended as resolved by the General body meeting held on 14.9.2007. It is further stated in the counter affidavit that the election schedule thereunder was published on 25.9.2007 and the election as scheduled was held on 4.11.2007 pursuant to the interim order dated 2.11.2007. It is also reported by the 4th respondent that the Juma-ath has 1142 members alive W.P.(C)NO.32658/2007 14
with voting right and that to the best of his information 467 voters among them are NRI citizens and are out of Kerala and that out of 675 voters available 458 voted in the election held on 4.11.2007 and the turnout is 67.85%.
16. According to the petitioner who is the defendant in the suit, the sub-committee for Bye law amendment and conduct of election to constitute a new committee for management of the Wakf was formed on 27.5.2007. The 4th respondent is the convener of the committee and the Returning Officer. The sub-committee notified the proposals for amendment of the Bye law in early July, 2007 and the Bye law was amended by the General body meeting held on 14.9.2007. It is further stated by the petitioner that the election schedule thereunder was published on 25.9.2007 and the election as scheduled was held on 4.11.2007 pursuant to the interim order dated 2.11.2007. According to the petitioner, the facts and issues relate to constitution of a committee for the management of the Wakf and so the dispute in Ext.P2 is a matter for decision by the Wakf Board in exercise of the specific power under Section 67(2) of the Act.
17. Pursuant to the order dated 20.11.2007, the Returning Officer W.P.(C)NO.32658/2007 15
submitted a report declaring the results of the election. The returned candidates can take over charge from the erstwhile committee. In the result, Ext.P5 order passed by the Wakf Tribunal is quashed, for want of jurisdiction. Respondents 1 and 2 who are the plaintiffs in O.S. No.20 of 2007 or any persons aggrieved by the mal administration or mismanagement, if any, on the part of the existing committee are at liberty to approach the Wakf Board for appropriate reliefs and orders. They are also at liberty to complain before the Wakf Board about the alleged action of the erstwhile committee in proceeding with the conduct of election in violation of the provisions in the bye law for the conduct of election. The continuance of the new committee in office shall be subject to the result of orders, if any, passed by the Wakf Board as stated above. The aggrieved party shall, if so advised, move the Wakf Board within three weeks from today and the Wakf Board shall pass final orders within a period of three months thereafter.
The Writ Petition is disposed of as above.
(KURIAN JOSEPH, JUDGE)
KURIAN JOSEPH &
4TH APRIL, 2008