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Wakf
Act 1995, Ss. 69, 70
& 83 - Whether the
mismanagement
relates to conduct
of election,
administration of
Wakf fund or other
misdeeds, it is the
function and duty of
Wakf Board at first
instance to set
right things - Wakf
Tribunal can only
sit in appeal and
decide legality of
orders passed by
Wakf Board.
Summary:
The
Writ Petition is
filed against an
interim order passed
by Wakf Tribunal.
Suit was filed
before Wakf Tribunal
complaining of
mismanagement
relating to conduct
of elections,
administration of
Wakf fund and other
misdeeds. Wakf
Tribunal passed an
order of status
quo. Same is
challenged. Court
held that whether
such mismanagement
relates to conduct
of election,
administration of
Wakf fund or other
misdeeds, it is the
function and duty
@page-KLT834#
of Wakf Board at
first instance to
set right things and
issue appropriate
orders for proper
administration of
Wakf. Wakf Tribunal
under S.67(4) sit in
appeal and decide
legality or
otherwise of orders
passed by Wakf
Board.
Held:
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. The
Wakf Tribunal is
constituted for the
purpose mentioned in
S. 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 S. 67
read with S.32 of
the Act. S.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. It is true
that S. 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 provided in
the Act itself, that
is, the Wakf
Tribunal and not by
the civil courts in
the State. 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
maladministration
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,
Ss.32 and 67 of the
Act deal with the
said specific power.
S.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.
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. S. 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. Ss.
67(2) and 70 of the
Act empower the Wakf
Board to take action
for malfunctioning
and mismanagement
of the affairs of
the Wakf. The same
Act and the same
provision, namely,
S. 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.
(paras. 6,8,9,12
& 13)
@page-KLT835#
2008 (1) KLT 957;
2003 (3) KLT 32,
2007 (3) KLT 800 &
2006 (4) KLT SN 80
(C.No.111) SC =
(2006) 10 SCC
696;
Referred to
S. Abdul Razzak
For Petitioner
P.A. Abdul Jabbar,
Babu Karukapadath,
M.A. Vaheeda Babu,
M.P.M. Aslam &
Abraham K. John
For Respondents
JUDGMENT
Harun-Ul-Rashid, J.
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 Ext.P1 to P3 and
P5 and quashing the
same.
ii) To declare
that the general
power of the Wakf
Tribunal under S. 83
of the Wakf Act is
not derogatory to
the specific powers
of the Wakf Board
under Sections 69 to
71 of the Wakf Act.”
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 subsequently
returned by the
courtto 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 bye law
which is in force or
to conduct election
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
@page-KLT836#
Board as W.O.S.
No.92 of 2007
reiterating the same
averments. It is
also stated in para
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. S. 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 management of
Wakf properties. S.
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-s. 4
of S. 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 S. 67 of the
Act, the Managing
Committee 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 if 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 Ss.
32 and 67 of the Act
relate to
administration and
management of Wakf
property. Sub-s. 2
of S. 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
@page-KLT837#
the bye law and
proceeding to manage
the affairs of the
Wakf by resorting to
conduct an illegal
election.
8. The Wakf Tribunal
is constituted for
the purpose
mentioned in S. 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 S. 67
read with S. 32 of
the Act. S. 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. TheSupreme
Court in M.P.
Wakf Board v. Subhan
Shah
2006 (4) KLT SN 80
(C.No.111) SC =
(2006)10 SCC 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) KLT 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 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 (4)
KLT SN 80 (C.No.111)
SC = (2006)10 SCC
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) KLT 32
and Madeena
Masjid v. Kerala
Jama Ath Islami
Hind, 2007 (3)
KLT 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 S. 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 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 Haji
v. Cheriyakoya
(2003 (3) KLT 32)
was followed in the
decision reported in
Madeena Masjid v.
Kerala Jama Ath
Islami Hind
(2007(3) KLT 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 S.
83 of the Act or
whether the civil
court has got any
jurisdiction over
the matter. This
Court held that a
joint reading of Ss.
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
@page-KLT838#
relating to any Wakf
and Wakf property or
other matters which
are to be determined
by theTribunal
constituted under S.
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 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 statute, 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 SCC 355
held that
distinction must be
made between the
decree passed by a
court which has no
territorialor
pecuniary
jurisdiction in the
light of S. 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
maladministration
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,
Ss.32 and 67 of the
Act deal with the
said specific power.
S. 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 is that the
affairs of the Wakf
were being
mismanaged by the
then committee
members. The
committee is duty
bound to apply and
@page-KLT839#
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. S. 67(1)
of the Actalso
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. Ss.
67(2) and 70 of the
Act empower the Wakf
Board to take action
for malfunctioning
and mismanagement
of the affairs of
the Wakf. The same
Act and the same
provision, namely,
S. 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
malfunctioning 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
maladministered, the
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.
@page-KLT840#
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
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 S. 67(2) of
the Act.
17. Pursuant to the
order dated
20.11.2007, the
Returning Officer
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
maladministration 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 Write Petition
is disposed of as
above.
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