Secretary, Odakkadu Mahallu Juma Ath Committee v. Padikkalakkandy Sainaba
2024-09-06
AMIT RAWAL, EASWARAN S.
body2024
DigiLaw.ai
JUDGMENT : Amit Rawal, J. The present petition is directed against the judgment of the Waqf tribunal rendered in O.A. No.9 of 2006 dated 30.09.2010 whereby, the order of the Waqf Board dated 21.7.1998 holding an enquiry proceedings in E.P. No.1000 of 1996 has been set aside. 2. Succinctly, the facts in brief are as follows: The petitioner, claiming to be the member of the Jama ath, submitted a complaint under Section 52 of the Kerala Waqf Act to the Waqf Board for prohibitory injunction and reclaiming the land from the possession of the respondents therein, who alleged to have acquired certain rights by way of certain documents. It was alleged that they are the members of the committee of the Jama ath and adjacent to that property, there is a burial ground on a land measuring13.89 Acres having Resurvey No.64/1A and 64/2 of the Paduvilayi Village under Patta Nos.52 and 53. Notice of the aforementioned application was given to the respondents who opposed the locus standi much less submitted that the registration is not in favour of the applicant, that is the petitioner, but of Koyilod Mahallu Juma-ath, therefore, no other person would have a right. 3. The Waqf Board framed the following issues: (i) Whether the petitioner has any locus standi to file the petition. (ii) Whether the petitioner is a beneficiary. (iii) Whether the entire property having an extent of 13.89 Acres comprised in Re Survey No.64/IA and 64/2 is wakf property. (iv) Whether the Registration of the property before the Wakf Board as per No.6087/RA is lesser than the original extent. 4. After analysis of the report of the inspection conducted by the member of the Board, it was found that registration No.6087/RA was in favour of the petitioner herein, the applicant before the Waqf Board and the land was being used as burial ground, but the respondents were found to be in possession of the land on the basis of purchase of the property and it was held that the status of the property was unauthorised, in that background ordered for taking the possession by authorizing the Chief Executive Officer to take necessary steps. 5.
5. The matter was taken up by the respondents before the tribunal in O.A. No.9 of 2006 interalia on the ground that the alleged inspection/enquiry conducted by one of the officers of the Board was at their back and without giving a copy thereof. In fact, they became the owners of the property by way of assignment deed and purchase certificate issued by the competent land owner, but despite that, the Waqf Board passed the order of ejectment treating the property to be Waqf. 6. The petitioners countered the aforementioned plea before the tribunal and averred that the purchase certificate much less the assignment deed was the result of fraud and collusion. Since the parties were at variance, the learned tribunal framed the following issues: 1) Whether the impugned order is sustainable in law? 2) Relief and costs? 7. Both the parties brought on record the following documents before the tribunal: Petitioners Exhibits : A1 5.10.1995 Representation filed by N.Muhammed Ali before the wakf board A2 12.2.1997 Counter filed before Wakf Board in EP1000/1996 A3 1.11.1997 Enquiry report by T Arifali A4 9.2.1998 Reply to enquiry report filed before Wakf Board in EP 1000/1996 A5 5.10.1977 Photocopy of purchase certificate A6 2.11.1977 do- do- A7 21.7.1998 Copy of order in EP 1000/1996 of Wakf Board A8 21.10.1998 Copy of order in CMP 35789/98 in OP20321/98 T of High Court of Kerala A9 22.12.2005 Order in OP20321/98 of -do- A10 31.8.1971 Copy of decree in OS365/67 of Kuthupramba Munsiff Court Third party exhibits: X1 22.9.2007 File produced by the Wakf Board. 8. The tribunal, on the basis of the aforementioned facts, found that the property was not entered in the register maintained by the Waqf board under Section 36 of the Act , thus, by relying upon the purchase certificate, assignment deed, and gift deed held that the Waqf Board had no jurisdiction to initiate proceedings under Section 52 of the Wakf Act for, the remedy was to approach the competent court of law i.e., the Civil Court. 9. Mr.
9. Mr. T.P Sajid, learned counsel appearing for the revision petitioner/member of the Odakkadu Juma-ath Committee, in support of the revision petition submitted that the order of the Waqf Board was based upon the enquiry report which found that the property was registered against the serial number and also based upon the decree Ext.A10 passed in the Original Suit No.365/67 of the Kuthuparamba Munisff Court, but the tribunal failed to touch the implication of the decree and therefore there is an abdication. The disputed land was a burial ground attached to the mosque, therefore, could not have been transferred by way of purchase certificate or assignment deed by the competent authority under the Land Reforms Act in favour of the respondents. 10. On the other hand, the learned counsel appearing on behalf of respondents 16 and 17 submitted that the property was being managed by the Koyilod Mahallu Juma-ath. 11. Mr. Jamsheed Hafiz, the learned counsel appearing on behalf of the Wakf Board did not deny that the property in dispute was not registered in the records of the Waqf property. The registration number in the Waqf Board was of some other property as no survey number was referred to therein. The Kerala Waqf Rules, 1996 empowers the Chief Executive Officer to take steps to recover the property on receipt of the report whereby the property of the Waqf Board, in contravention of the provisions of Section 51, had been transferred. It is in that aspect that steps were taken for the recovery of the property. 12. The learned counsel appearing on behalf of contesting respondents 10 to 14 pleaded no instructions. 13. We have heard the learned counsel for the parties, appraised the paper book and record. The documents placed on record before the tribunal i.e., purchase certificate dated 5.10.1977 and 2.11.1977 reveal that the respondents had acquired the status of ownership on the basis of the order passed by the competent authority under the Land Reforms Act. 14. Section 72(k) of the Land Reforms Act, 1963 entitles a person who is stated to be in long and settled possession for recovering the title by submitting an application in the prescribed format before the competent authority. Any certificate, if obtained, can be assailed either in appeal or in a competent court of law.
14. Section 72(k) of the Land Reforms Act, 1963 entitles a person who is stated to be in long and settled possession for recovering the title by submitting an application in the prescribed format before the competent authority. Any certificate, if obtained, can be assailed either in appeal or in a competent court of law. Once the petitioner had acquired knowledge that there was a purchase certificate, could have availed the remedy of the suit in a competent court of law for challenging the aforementioned documents as they carry a presumption of truth until and unless are set aside by the competent court of law. The reliance of registration No.6087/RA is of a lesser chunk of land and not with regard to 13.89 acres which is also being managed by Koyilod waqf mosque who has not approached at any point of time the waqf Board for claiming the possession as provided under Section 52 of the Act. The specific ground of the petitioner before the appellate court tantamount to assailing the certificates and the gift deeds to be vitiated by fraud, rightly so, in our considered view, the tribunal has rightly relegated the affected party to avail the remedy in a competent court of law. For the reasons aforementioned, we do not find any illegality and perversity. No ground for interference is made out. C.R.P is dismissed with liberty to challenge the order before the competent court of law in accordance with law.