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2023 DIGILAW 869 (KER)

Secretary v. Muhammed Rasheed

2023-11-06

AMIT RAWAL, C.S.SUDHA

body2023
JUDGMENT : Amit Rawal, J. The present civil revision petition is filed on behalf of the Secretary, Kazhuthallor Mahallu Kuttipuram, Malappuram against the order dated 11/03/2022 passed by the Wakf Tribunal, Kozhikode in W.O.A.53/2019. The facts in brief for adjudication of the controversy are as under: 2. In 2016, jurisdiction of the Kerala State Wakf Board was invoked by submission of an application by Muhammed Koya Thangal Ba-Alavi on behalf of the legal heirs of the deceased Achipra Thangal Ba-Alavi, alleging that 50% of the amount received from the tomb was for benefit of the legal heirs as per the agreement executed in 1970 which was stopped by the Divisional Officer of the Board and requested for resumption. One P.S.Muhammed Rasheed moved an application on 22/08/2015 and on the basis of the enquiry it was revealed that 50% of the amount received from the tomb was liable to be paid to the legal heirs of Achipra Thangal Ba-Alavi without the order of the Board, but on the basis of the interdiction by the Divisional officer, payment was stopped. A compromise deed was executed between Mahallu i.e. the petitioner herein who was arrayed as the second respondent before the Wakf Board, and Sri. Sayyid Muhammedali Shihab Thangal and Sri.Sayyid V.P. Muhammed Koya Thangal on behalf of the family members. On the basis of that the matter was placed before the Board. Board issued the notice to P.S.Muhammed Rasheed, the then Secretary for the period 2000-2006 and to Mr.Muhammed Koya Thangal. Mr.Muhammed Koya Thangal appeared through counsel. Matter was taken by the Board, but in the meantime Achipra Thangal Ba-Alavi had died. Two applications for impleading his legal heirs for the release of 50% amount being deposited in the Bank were submitted. On perusal of the file it was found that the waqf is registered with the Board showing 'C.P.Alavi' as Muthvalli and the rule of succession was “by custom”. There was a compromise between the Mahallu Khasi on behalf of the mahallu and legal heir of the deceased. In this view of the matter Board passed the following order: “1. The Committee is directed to distribute the amount at the rate of 50% to the legal heirs of the deceased Achipra Thangal Ba-Alavi after deducting expenses and other statutory dues. 2. Divisional Officer, Manjeri is directed to depute a suitable person as executive officer to the above Waqf. 3. The Committee is directed to distribute the amount at the rate of 50% to the legal heirs of the deceased Achipra Thangal Ba-Alavi after deducting expenses and other statutory dues. 2. Divisional Officer, Manjeri is directed to depute a suitable person as executive officer to the above Waqf. 3. The parties are directed to open the boxes in the presence of the executive officer being appointed under this order and the executive officer shall be on overall control of the boxes kept in the Wakf. He shall also ascertain as to whether any boxes other than which belongs to the waqf is being placed in the premises and in such case shall take action against such persons who keeps the boxes in the waqf premises. 4. The parties are directed to open a Bank account jointly with the Executive Officer appointed to the above waqf. 5. The Divisional Officer is further directed to audit the accounts of the waqf for the previous 5 years and file the audit report before the Board. 6. The Executive officer is directed to submit a detailed report before the Board within 1 month and is further directed to submit report quarterly before the Board.” 3. The aforementioned order was assailed by 2nd respondent namely, Sri. P.S.Mohammed Rasheed before the Board on various grounds. The Tribunal found that on the basis of the application filed by the Kerala State Wakf Board dated 22/08/2015 represented by the then Secretary of the petitioner, i.e. the jama-ath an enquiry was conducted by the Wakf Board. Report dated 13/03/2016 on the basis of the enquiry was filed. It is pertinent to mention Sri.P.S.Muhammed Rasheed did not take part in the enquiry proceedings. Muhammed Koya Thangal, as noticed above, had died and 12th respondent was selected as the next 'Sthani' of the family. It was found that the forefather of the 2nd respondent, one Muhammed Koya Thangal Ba-Alavi died on 14/04/1950. A Thakhiya was build on the side of the Kuttipuram-Thrissur public road which had never been under the control of the State Wakf Board. Family decided to share the monthly income from Jaram with petitioner Kazhuthallur Juma-ath Committee. It was also found that Jaram was not under the control and supervision of the Wakf and the collections were as per the compromise earlier agreed to be at the rate of 1/3rd but later half. Family decided to share the monthly income from Jaram with petitioner Kazhuthallur Juma-ath Committee. It was also found that Jaram was not under the control and supervision of the Wakf and the collections were as per the compromise earlier agreed to be at the rate of 1/3rd but later half. The said amount ordered by the Board was upheld. 4. Intriguingly the present petition has been filed on behalf of the Secretary, Kazhuthallor Mahallu Kuttipuram, Malappuram, who was arrayed as respondent no.1 before the Tribunal on various grounds, and not by Muhammed Rasheed. We asked the learned counsel appearing on behalf of the petitioner that how could a revision petition instead of challenging the order of the Board by the Secretary have been filed as Muhammed Rasheed remained the Secretary for the period 2000-2006 whereas the dispute was of the subsequent period. In this regard attention of this court was drawn to the proviso of Section 83(9) of the Wakf Act, the same reads as under: “(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal: PROVIDED that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may conform, reverse or modify such determination or pass such other order as it may think fit.” 5. It is evident that the aforesaid provision will be applicable only if the court finds its own motion or on the application of the Board or any person aggrieved. The scope of the revision petition cannot be enlarged by using the expression 'any person', particularly when that person, when aggrieved of the order of the court, remained silent and did not challenge it before the Tribunal. The scope of the revision petition cannot be enlarged by using the expression 'any person', particularly when that person, when aggrieved of the order of the court, remained silent and did not challenge it before the Tribunal. Provisions of Sub section 2 of Section 83 are required to be extracted, it reads as under: “(2) Any mutawalli person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf.” Thus, person interested was Muhammed Rasheed who assailed order of Board before tribunal, but not secretary of Mahallu. In this view of the matter, we do not deem it appropriate to go to the merits of the grounds taken in the revision petition and hold petition to be not maintainable, accordingly dismissed.