These two civil revision petitions are filed against the common order passed by the Wakf Tribunal, Ernakulam. C.R.P.644/2010 is filed against the common order passed in W.O.A.No.1/2001 and C.R.P.499/2006 is filed against the common order in W.O.A.No.6/2001.
2. The petitioner is a Jama Ath owning 16 cents of land. There is a mosque situated therein. There is an extensive area of 8 acres and 3 cents. It is known as Putharipadam Jama-ath and its burial ground (Mayyathankara).
3. The dispute essentially relates to the administration of the aforesaid 8 acres and 3 cents. The dispute had its origin in the year 1956. Apparently, it started when the Managing Committee of the petitioner auctioned about 2,000 numbers of teak wood trees standing in the compound of Putharipadam Mosque. Some of the inhabitants and beneficiaries of the said Mosque, it appears, objected to the auction by the petitioner committee. They approached the Executive First Class Magistrate, Palakkad seeking an injunction under Section 144 of the Criminal Procedure Code, restraining the committee from cutting and removing the trees. Injunction was granted initially, but later on, it was vacated. Thereafter, O.S.213/57 was filed in the Munsiff Court, Alathur, seeking a declaration that Putharipadam Mosque and the compound referred to above belonged to and are in the joint possession of the four amsoms we have referred to earlier and that the petitioner has no exclusive right, title, possession or management of the Mosque. The suit was instituted in a representative capacity. The said suit was decreed. In First Appeal, however, the judgment of the trial court was reversed. Against the said judgment, S.A.268/71 was filed. We think, it will not be inappropriate to extract the whole judgment.
“The second appeal arises out of a representative action instituted by the plaintiffs for a declaration that the plaint mosque and the land where it is situated belongs to the Muslim Community of four villages in and around that place and for a further declaration that the Pudikkoda Jumayath mosque of the defendants has no exclusive right of management of the mosque and its properties. While the trial court, when not granting the positive declaration in favour of the plaintiffs, negatived the right of the defendants; in appeal the suit was dismissed. The plaintiffs have come up in second appeal.
2. The basic dispute turns on the right of management of the Juma Masjid. But stemming out of that is the further dispute regarding the right of the second defendant to cut and remove the timber trees in the compound of the mosque auctioned away by the committee of the defendants and purchased by the 2nd defendant. There had been criminal proceedings antecedent to the civil suit and the civil case itself has had fluctuating fortunes in the two courts below. But it looks as if the primary authority competent to deal with this matter is the Kerala Wakf Board. Sec.15 of the Wakf Act, 1954, vests considerable powers of superintendence over all wakfs in the State in the Board. While comprehensive powers are conferred under Sec.15(1) to control the administration of Wakfs. Sub-section 2, particularly sub-clauses (c), (d) and (o) enable the Wakf Board to issue directions regarding the day-to-day administration and the disposal of the income. That is why whenever a suit is instituted relating to the title of Wakf properties the Court has been enjoined to issue notice to the Board. Notice has been given to the Board in this Court and counsel for the Board has entered appearance. In these circumstances, the most appropriate order to be passed in this case would be to direct the Board to decide the right of management and to settle the manner in which the management of the Wakf should take place. Wide powers are already vested in the Board ever to give interim directions. I mention this because trees have been auctioned and some of them have been cut and removed. I have granted an injunction against the defendants committing waste. But then the contention of the defendant is that unless trees are cut and removed they would be wasted and that the cutting and removal themselves do not amount to an act of waste. I think it proper to direct the Wakf Board to issue such interim directions as it thinks fit even in regard to the timber trees, if moved in that behalf by either party to this case.
3. In the result, I think it unnecessary to decide the dispute regarding the right of management as between the plaintiff and the defendants in this appeal. On the other hand, both sides have agreed that now that the Wakf Board has entered appearance the Board may be directed, in exercise of its functions under Sec.15 to decide the dispute regarding the management in this case and other allied matters. Apart from directing the Board to decide the right of management and to make provision for the proper administration of the Wakf, I also direct the Board to issue such interim directions as are necessary in its opinion to promote the interest of the Wakf, with special reference to the timber trees, if appropriately moved by either party, and of course, after hearing both sides. Subject to the above direction, I dismiss the appeal. There will be no order as to costs in any of the Courts below.
Carbon copies will be given to both sides and a copy of this judgment will be sent to the Wakf Board.
4. Thereafter, the matter engaged the attention of Kerala Wakf Board. Thereupon, a petition was filed by the appellants in the Second Appeal and two others, praying that a scheme of management may be settled for Putharipadam Mosque and its properties. The Wakf Board initially passed order dated 17.2.1973. The Board found that the petitioner Mosque and Putharipadam Mosque should be treated as independent mahals with the exception that Puthucode mahal will have the right to bury the dead bodies in the Putharipadam Mosque as they were doing till then. The Board further found that the Puthucode Mosque will continue to have that right and the Putharipadam Mosque will not be entitled to object to the same in any manner. It was found that Puthucode Mosque has a scheme which will continue to be in force as far as that mahal is concerned. It was found that a scheme will have to be settled for the administration of the Putharipadam Mosque and its properties and a draft scheme was directed to be published. The said order was however, challenged in two Writ Petitions (O.P.Nos.1452 and 2048 of 1973). O.P.1452/73 was filed by the respondents in the petition No.5/1971 and O.P.2048/73 was filed by the petitioners in the petition before the Wakf Board against the respondents impleading the Wakf Board as respondent No.6 therein. The said Writ Petitions were disposed of by a common judgment. Therein, this Court referred to the judgment of the learned Single Judge in the Second Appeal. The court found that there was no scope for ambiguity in the decision of the learned Single Judge in the Second Appeal. It was held as follows:
“4. I do not think that there is any scope for ambiguity in the decision of my learned brother Krishna Iyer J. The dispute between the parties was all along one of right of management of the Puthirippadom Mosque. Whether such right should be recognized in the Puthucode mosque alone or in the people of the four mahals inclusive of the Puthucode mahal was really in controversy. What this Court directed was to settle and determine the right of management and settle the manner in which the administration was to be conducted. The settlement of the manner cannot be done without determining the right to such management. Therefore in terms of the decision of this Court the Board was called upon to decide:
(i) Whether the plea of the 4 mahals that they had joint right to manage the Puthirippadom mosque should succeed or whether the right of management was to be found to be exclusively in one of them, namely, the Puthucode mosque.
(ii) How the further administration was to be done had to be settled in the light of such decision?
(iii) Any incidental and allied matters may have to be decided as the circumstances may necessitate. The parties actually wanted settlement of a scheme and since that was within the powers of the Board it could have granted it as a consequential relief.
(iv) Interim directions as to the disposal or removal of the teak wood trees and timber and such other matters that may be called for in order to safeguard the interests of the Puthirippadom mosque during the pendency of the dispute.
5. In the decision taken by the Board after the judgment of this Court there is no finding as to the right of management. There is no finding even that the members of the three mahals other than the Puthucode mahal were exercising acts of management at any time. A positive finding as to who is entitled to the right of management whether it is the Puthucode mahal alone or whether the mosques in the other three mahals representing the Muslim population in those mahals was necessary. The Board seems to proceed on the basis that the dead from all the four mahals are being buried in the Puthirippadom burial ground. May be or may not be. I say so because, on this, at the hearing, there is no agreement between counsel on both sides. Whatever it be, even assuming that this is the case this will not determine the right of management. Now will it obviate the necessity of a finding as to who is entitled to manage. Hence there is no determination of the question which was directed to be determined in exercise of the power under Section 15 of the Wakf Act by the Board.
7. In the connected original petition, O.P.No.2048 of 1973 the challenge is to the same order by the representatives of the three other mahals who claim that the order is bad for another reason, as to the disposal of the amount in deposit realized as the result of the sale of the teak wood trees. In regard to this the Wakf Board directed that 60% has to be spent for the purpose of the Puthirippadom mosque and 40% for the Puthucode mosque, for it is observed that both the mosques required renovation. May be that is a fact. But one fails to see how the funds of the Puthirippadom mosque can be utilized for the Puthucode mosque even assuming that Muthawallis of the Puthirippadom mosque are the Muthawallis of the Puthucode mosque also. The question is one of right of management of the Puthirippadom mosque. I am not finally finding or pronouncing on this matter. The direction under challenge has necessarily to be set aside and therefore the main order has also to be set aside. If the Puthucode mosque has only the right of management of the Puthirippadom mosque, it goes without saying that such right cannot enable to seek diversion of a part or whole of the funds of the Puthirippadom mosque. That must be made available for the Puthirippadom mosque and for that mosque alone. To that extent the O.P.No.2048 of 1973 must be sustained. Any way I am not quashing the direction separately, for I am quashing the entire order.
8. I make it clear that I interfere only because the relevant question is not determined. Otherwise the Board’s decision would have necessarily been respected for, on facts, the Wakf Board must be the ultimate authority to decide. No interference by this Court as if sitting to appreciate the correctness of the decision would be warranted. Ext.P6 in O.P.No.1452 of 1973 is hence quashed. The Board will go into the matter afresh and decide on the materials available before it as to whether the right of management is in the Muslim residents of the four Mahals or whether it is exclusively that of the Puthucode mosque. Based upon such decision consequential matters such as settlement of administration including settlement of a scheme will be made. It goes without saying that interim directions as to the utilization of the funds now in deposit for protecting the interests of the Puthirippadom mosque may be made by the Wakf Board in case the parties move the Board for that purpose. It is agreed that there is no more material to be adduced as evidence in the case.”
5. It is pursuant to the same that the Wakf Board proceeded to pass order dated 9.4.1977. We will refer back to the said order as much turns on its effect and whether it continues to govern the parties as against the subsequent order which has been passed by the Board on 15.3.1997.
6. The order of the Wakf Board dated 9.4.1977, it appears, was subject matter of challenge in O.P.2864/77. The said Writ Petition was filed by the President of the Puthucode Jumayath Mosque and certain others. The court interalia held as follows:
“2. Pursuant to the direction as aforesaid given by this Court as per Ext.P4 judgment, the Board passed Ext.P5 order dt.9.4.1977, which is impugned. There is a definite finding entered in that order by he 6th respondent-Board. In Ext.P5 order the 6th respondent-Board taking into account the evidence furnished by the revenue records and other documentary evidence came to the conclusion that “the first question formulated by the High Court, viz., whether the plea of the four Mahals that they have joint right to manage the Puthiripadam Mosque should succeed has to be answered in their favour. It cannot be said that there is no determination of the question as was the case on the earlier occasion when Ext.P3 order was examined by this Court.
3. I am not prepared to accept the contention on behalf of the petitioners that by Ext.P4 this Court directed not to consider the evidence furnished by the fact that the property was used as a burial ground by all the 4 mahals, for this Court only said that assuming that it is so that will not determine the right of the Management. The dispute is more than 20 years old. I do not think that I am called upon to reappraise or reappreciate the evidence and come to a different conclusion. It is only necessary to point out that the decision as aforesaid by the 6th respondent cannot be said to be not supported by any material at all, nor am I prepared to say that the order is vitiated by errors of law apparent on the face of the record.”
Even though a Writ Appeal was filed as W.A.345/77, the same was unsuccessful. The judgment in the Writ Appeal is dated 16.1.1978. Thereafter, O.S.253/1978 was filed before the Sub Court, Palakkad. The suit was filed by the persons who filed O.P.2864/77. Therein, the plaintiffs sought for setting aside the order dated 9.4.1977. The suit was dismissed, holding that it is not maintainable. In appeal (A.S.339/1981) this Court confirmed the said finding. This Court took the view that against the determination in respect of the matters falling under Section 15 of the erstwhile Wakf Act (the corresponding provision being contained in Section 32 in the present Wakf Act), the right was to challenge it before the Tribunal. The learned Judge interalia held as follows:
“From Ext.A1 it is clear that no scheme is settled. Despite the fact that Ext.A1 stated the Puthiripadam Mosque alone will have the right to utilize the amount in deposit for its purpose; it stated the amounts in deposit and further income has to be utilized as per the decision of the committee to be constituted under Scheme. That means, the manner of utilization is to be decided by the Committee. Since the direction as to the utilization of Income has nexus with the constitution of the Committee as per the scheme, and the scheme, as noted, is yet to be settled, Ext.A1 in the circumstance being preliminary to settlement of scheme cannot be challenged under Section 15(3) of the Act. In this connection it is necessary to note that, the power of the Board to issue interim directions pending the proceedings is noticed in Exts.B1 and B2. In the circumstance when the settlement of a scheme is pending under Section 15 of the Act a suit of this nature is not maintainable under Section 15 (3) of the Act. In the decision in Kerala Wakf Board’s case (1987(1) KLT 313) arose under Section 42 of the Act. The decision has no application to the facts of this case. The decision in Isabella Johnson’s case (AIR 1991 SC 993) held that a court which has no jurisdiction cannot be conferred with jurisdiction by applying the principle of res judicata. As has noted, the Board has jurisdiction to determine matters that fall under Section 15 of the Act; then a challenge against such determination on any ground is possible only as provided under Section 15(3) of the Act. The said decision also has no application in the present circumstances. The suit is not maintainable. Thus it is clear that the appeal is liable to be dismissed.”
The said judgment was pronounced on 10.10.1991. Thus, much time was spent, challenging the order dated 9.4.1977, both before the High Court and Civil Court, as already discussed. In fact, in the order dated 9.4.1977, the decision as such is contained in the following passage:
“In the result, in modification of this Board’s earlier order, it is decided that the Puthiripadam Mosque and its properties are a separate entity to be managed independently by constituting a committee to be elected from among the Muslim inhabitants of the four amsoms mentioned above under the scheme to be finalized as aforesaid and that the Puthucode Mahal as such shall not have any right of management of the said Wakf. The right to have the burial of dead bodies from all the four Mahals will continue as herebefore without resistance. The Puthiripadam Mosque will alone have the right to have the amounts in deposit utilized for its purpose as also for improving upon its properties subject to sanction to be obtained in that behalf from the Wakf Board. The parties are directed to bear their costs.
7. The Board had in fact in the said order directed that a draft scheme will be prepared and duly published within a month of the order. The scheme was to embrace the beneficiaries of the Wakf and its properties consisting of Muslims in all the four amsoms. The right of management was to be vested in a committee to be elected from among the members of the four amsoms. The draft scheme was to be finalized after hearing the objections, if any, from the members of the four amsoms concerned. Apparently, in view of the litigations spread over both in the civil court and the writ count, nothing much transpired immediately. After nearly two decades, the Wakf Board passed yet another order dated 15.3.1997, which is the cause of the present lis. The said order reads as follows:
“Various evidences and enquiry report reveals that the Puthiripadam Mayyathankara was under the jurisdiction and control of Pudukkod Jama-ath for more than three hundred years. The Pudukkod Jama-ath are having all the records even prior to the case which arose during the year 1956. The persons claiming under the Puthiripadam Jama-ath are not seen in the picture even during the dispute during the year 1952 and 1956. They have came to the picture only during the year 1971 by impleading in the proceedings. It shows that during the year 1956 and 1957 while the case was going on, the control and administration of the Puthiripadam Mayyathankara was under the Pudukode Jama-ath. Even though the Puthiripadam Jama-ath have remitted the amount for some time, there is a specific order dtd.14.6.1994 of the Tahsildar permitting the Pudukkode Jama-ath to remit the land tax with regard to the Puthirippadam Mayyathamkara.
Out of the 14 plaintiffs in the suit during the year 1956 only one person is remaining alive, Navoor Meera Rawther. One of the parties in the proceedings the people of Marad Theruvu had withdrawn from the case upholding the right of the management of Pudukod Jama-ath. Besides, the Pudukkod Jama-ath is keeping the accounts with regard to the plantation of Teak trees in the Mayyathamkara and they are also having the accounts in connection with the property.
On an over all assessment of the records and evidences in this case, it is revealed that the Puthirippadam Mayyathamkara Pally is under the Pudukkod Mahal. However, Juma prayers are going on in the Puthirippadam Mosque. The neighbouring Muslim inhabitants are participating in the Juma prayers and it is going on un-interruptedly. There is a dispute as to whether the Juma prayers in the Puthirippadam Juma-ath Palli, had been started with the prior permission of the Pudukkod Juma-ath. The said dispute is not relevant in the case.
The Pudukkod Juma-ath will be continued to be in the possession and control of the Mayyathamkara on condition that representation will be given in the Pudukkod Mahal committee for the Muslim inhabitants of nearby localities.
The administration and control of the Puthirippadam Jama-ath Mosque will be based on the Committee of the Puthirippadam Jama-ath independently and they will administer in the mahal independently and the Muslim inhabitants of the mahal will have the right for burial at the Mayyathamkara. For the purpose of implementation of the above decision, both the parties are directed to submit a draft scheme for the effective implementation of the order while admitting the draft scheme. Both parties are directed to consider the interest of the Muslim inhabitants of the above locality whether or not they are having separate mosque or juma prayers.”
8. There is no dispute that as against the said order, O.P.No.14040/1997 was filed by two persons, who, it appears, had got themselves impleaded in the proceedings before the Wakf Board. The Writ Petition was against the said order. The prayers in the Writ Petition, and the judgment read as follows:
“(i) Call for the records leading to Ext.P7 and quash the same by issuing a writ of certiorari;
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to frame a scheme for management of Putharippadam Mosque in accordance with the findings and directions contained in Ext.P3 order and Ext.P4 judgment without delay.”
“There was a dispute regarding right of management of Putaripadam Juma Mosque from 1956 onwards. Finally by Ext.P1 judgment in S.A.No.268 of 1971 on agreement of parties it was directed to the Wakf Board to decide the question regarding right of management and other allied matters. The Wakf Board was also directed to issue such interim directions as are necessary in its opinion to promote the interests of the Wakf, with special reference to the timber trees etc. Since no further orders were passed, some persons approached this Court by filing O.P.Nos.1452 and 2048 of 1973. By Ext.P2 judgment in O.P.Nos.1452 and 2048 of 1973 it was held that Wakf Board will be the ultimate authority to decide the matter. It was found that there was no determination regarding who is entitled to manage the property under Section 15 of the Wakf Act by the Board. It is also directed that interim directions as to the utilization of the funds now in deposit for protecting the interests of the Puthirippadam mosque may be made by the Wakf Board in case the parties move the Board for that purpose. Further it was directed that the Board will go into the matter afresh and decide on the materials available before it as to whether the right of management is in the Muslim residents of the four Mahals or whether it is exclusively that of the Puthucode Mosque. Based upon such decision consequential matters such as settlement of administration including settlement of a scheme will be made. Thereafter, Ext.P3 order was passed in Petition No.5 of 1971. In Ext.P3 order it was held as follows:
“It is decided that the Puthiripadam Mosque and its properties are a separate entity to be managed independently by constituting a committee to be elected from among the Muslim inhabitants of the four amsoms mentioned above under the scheme to be finalized as aforesaid and that the Puthucode Mahal as such shall not have any right of management of the said Wakf. The right to have the burial of dead bodies from all the four Mahals will continue as here before without resistance. The Puthiripadam Mosque will alone have the right to have the amounts in deposit utilized for its purposes as also for improving upon its properties subject to sanction to be obtained in that behalf from the Wakf Board.”
The challenge to Ext.P3 order was not sustained when O.P.No.2864 of 1977 was filed. The writ appeal was also dismissed. Thereafter a suit was filed. The suit was also dismissed. By Ext.R2(a) judgment in A.S.No.339 of 1981 the appeal was dismissed. It was held that Board has jurisdiction to determine the matters with its full powers under Section 15 of the Act and it can be challenged only on any ground that is provided under Section 15(3) of the Act. It was also found that the order was only a preliminary order and a scheme has to be framed. Ext.P3 order is dated 9.4.1977. Thereafter there were drastic changes happened. Each Mahal had now its own burial ground. In 1993 petitioners got themselves impleaded as parties in the proceedings. But it appears that parties in Ext.P3 who are living had came to an understanding and the other three Mahals had relinquished their scheme. Since no draft scheme was filed by any of the parties, the Wakf Board itself framed a draft scheme and called for objections. Objections were filed by some of the parties. Meanwhile for the best interest of the muslim community therein Wakf Board decided in its power to conduct an enquiry and a member of the Board conducted an enquiry and suggested two opinions:
“(i) To handover the right of management of Putharipadam to Puthocode jama-ath on condition that Juma prayers conducted in Putheripadam Jama-ath shall not be disturbed and the local Mahal’s without having Juma prayers should be included in the Puthocode Jama-ath and representation will be given to them in Puthucode Jama-ath administration.
(ii) Putharipadam Mosque and some property should be allotted to Putharipadam and management of the Putharipadam Mosque be done independently. Balance property of Putharipadam Mayyathankara shall be handed over to Puthukode Jama-ath.
Taking into account all the subsequent developments and request made by the three mahals and the report of the Wakf Board member after conducting enquiry, Ext.P7 order was passed. It was held in Ext.P7 order that the administration and control of the Puthirippadam Jama-ath mosque will be based on the committee of the Puthrippadam Jama-ath independently and they will administer in the Mahal Independently and the Muslim inhabitants of the mahal will have the right for burial at Mayyathamkara. It was also stated that Pudukkod Juma-ath will be continued to be in the possession and control of the Mayyathamkara on condition that representation will be given in the Pudukkod Mahal Committee for the Muslim inhabitants of nearby localities.
2. On going through Ext.P7 order it can be seen that it is also interim in nature. All parties were directed to consider the interests of Muslim inhabitants in the above locality, whether or not they are having separate mosque or juma prayers. The final scheme is not framed. On going through Ext.P7 it can be seen that it is passed only for the interest of the muslim community in the place. However, a scheme should be framed. Petitioners are also free to raise all their objections in the proposed scheme or petitioners and other parties can also submit draft scheme. Petitioners have already submitted Ext.P6 scheme. After considering the objections of all the parties concerned, a scheme should be framed as expeditiously as possible in any event, within three months from today. The scheme to be finalized can be challenged by any of the interested parties as provided under the provisions of the Wakf Act and petitioners also will be free to raise all their contentions, untrammeled by the findings and observations in Ext.P7 and in this judgment.
With the above observations, the Original Petition is dismissed.”
9. A Writ Appeal filed by the writ petitioners against the said judgment was unsuccessful. O.P.606/98 was filed challenging Exts.P10, P13 and P14 in the said Original Petition. Ext.P10 appears to be a proceeding issued by the Wakf Board dated 6.12.1997, wherein it published a draft scheme on the basis of order dated 15.3.1997. By Ext.P13 in the said case, an officer of the Board was appointed as a Returning Officer to conduct elections to the managing committee of Putharipadam Mosque. The said Original Petition was disposed of by the writ court, relegating the parties to approach the Tribunal, constituted under Section 83 of the Wakf Act, 1995. Thereupon, the parties apparently filed O.A.1/01 before the Wakf Tribunal, praying that there was no power with the Board to review, and the order dated 9.4.1977 is to be implemented. Thereafter, petition No.43/2000 was filed before the Wakf Board, praying that the amounts which were lying on the deposit with the Board may not be received by the Secretary, Puthucode Jama-ath. Petition No.15/01 was filed by two beneficiaries of Putharipadam Mosque for an order to finalise the scheme for administration of Putharipadam Jama-ath and its properties, pursuant to order dated 9.4.1977 and on the basis of the draft scheme published by the Wakf Board dated 14.8.1995. Both these petitions were heard together along with enquiry proceedings No.B2S/7/01. 14 points were raised. The Board, by order dated 11.9.2001 recalled the order dated 15.3.1997 and cancelled the orders dated 19.8.1997 and 14.3.1998 settling the scheme for administration of the Putharipadam Jama-ath and ordered that a scheme for administration of Putharipadam Mosque and its properties will be framed in accordance with order dated 9.4.1977. It is to be observed that order dated 19.8.1997 and 4.3.1998 were orders of the Board apparently proceeding further on the basis of the order dated 15.3.1997.
10. The said common order came to be challenged by the petitioners by filing O.A.6/2001. There was another proceeding as W.O.A.1/02 filed by two persons of Putharipadam Mosque. They were originally petitioners in petition No.5/1971. The Wakf Tribunal considered O.A.1/01, O.A.6/01 and W.O.A.1/02 and passed the common order dated 7.3.2006, which is the subject matter of the present revision petitions. The order passed in W.O.A.1/02 was challenged, but after the death of the appellant, the matter was not proceeded with further and therefore, we must proceed on the basis that the said order has become final. These two revision petitions being filed under Section 83(9) of the Wakf Act, 1995, we are called upon to decide the correctness, legality and propriety of the order passed by the Wakf Tribunal in O.A.1/01 and O.A.6/01.
11. We heard Sri Babu karukapadath, learned counsel for the petitioners, and Sri T.H. Abdul Aziz and Sri P.K. Muhammed, for contesting respondents besides Sri A.A. Abul Hassan, who appears for the Wakf Board.
12. Sri Babu Karukapadath, learned counsel for the petitioner would submit that the order of the Tribunal is clearly unsustainable. He would submit that while it is true that in the circumstances leading upto the judgment of this Court in the Second Appeal, which we have adverted to, the parties were relegated to approach the Wakf Board and there is power with the Wakf Board to frame schemes, it is completely erroneous to say that the Board’s hands are tied or that it is helpless, if it finds that it must modify a scheme. He would submit that the Board and the Tribunal had proceeded with the matter on the basis that Wakf Board does not possess the power to review its own order. He would immediately invite our attention to Section 69 of the Wakf Act and submit that Section 69(4) clearly provides for power with the Board to modify the scheme either before or after framing of the scheme. Therefore, once erroneous premise is removed, the entire foundation for the impugned order would collapse, he submits.
13. He would submit that the situation prevailing at the time when order dated 9.4.1977 was passed, was no longer present after a period of nearly 20 years, when order dated 15.3.1997 was passed. According to him, at the time when order dated 9.3.1977 was passed, the position was that there was 8 acres and 3 cents being controlled of course, by the petitioner committee and the further position was that the mahals did not have graveyards of their own. In other words, all the Muslims in all the four amsoms were making use of the graveyard contained in the 8 acres 3 cents of Putharipadam Jama-ath and its properties. Later on, all the amsoms acquired burial grounds of their own. It was this changed scenario which was reflected in the concern of the Board when it passed the order dated 15.3.1997. More over, it is pointed that of the original petitioners who filed petition No.5/1971, three died and the remaining two also wanted the order on the lines of order dated 15.3.1997 to be passed. That apart, there were submissions made by all the other mahals that the order on the lines of the order dated 15.3.1997 may be passed, he pointed out. He would submit that it is accordingly that order dated 15.3.1997 was passed. The said order was challenged before this Court in a Writ Petition. We have already extracted the prayers sought for in the said Writ Petition. The petitioners were unsuccessful in persuading the court to grant the reliefs. The resultant position was that the order dated 15.3.1997 survived the attack in the proceeding before this court. The further prayer to frame a scheme in terms of order dated 9.4.1977 also was not granted. When the prayer sought for is not granted, it must be treated as refused. Therefore, it is order dated 15.3.1997, which will govern the field. If that is so, he would contend that it is open neither to the Board nor to the Tribunal to hold that order dated 9.4.1977 will hold the filed.
14. Further, learned counsel for petitioners would contend that both the Board and the Tribunal have not considered the position flowing from Section 69 of the Act.
15. Per contra, learned counsel for the contesting respondents would submit that the circumstances leading upto the passing of order dated 9.4.1977 is not to be overlooked. The parties were canvassing their rival claims as to the title to manage the property before the Wakf Board, which is competent to decide such matters. It passed an order dated 9.4.1977 and as already noted, it was challenged in a proceedings before this Court. The challenge was unsuccessful. The parties went to the civil court. There also, it was held that civil court has no jurisdiction and the suit is not maintainable. It is after nearly 20 years that the order dated 15.3.1997 comes like a bolt from the blue. A mere perusal of the order would show that there was no reasoning and there was no basis for arriving at the conclusions and the observations which are contained in the said order, runs the argument. As far as the judgment of this Court in O.P.14040/1997 is concerned, they would submit that a careful perusal of the judgment would not advance the case of the petitioners as it was found that the order dated 15.3.1997 was interim and further what is more it is ordered that the matter must be decided uninfluenced by anything contained in the said order or even in the order of this court. They would re-iterate that the Wakf Board when it acts in the proceeding in question must be treated to be acting in a quasi-judicial manner. They would contend that the quasi-judicial body does not have power to review its decision. A quasi-judicial body has power to review its decision only if the power of review is specifically conferred on it. There is no power of review in the Wakf Act conferred upon the Wakf Tribunal, it is contended. They would invite our attention to the order dated 9.4.1977 to point out that it is a well considered order. Reference was made to the materials placed before it and the lis between the parties was decided as was contemplated by this Court in the Second Appeal and also in the judgment in O.P.Nos.1452 and 2048 of 1973.
16. Before we proceed to consider the question, it would be necessary to refer to the order dated 9.4.1977 as the said order is the first order among the two, which specifically deals with the question at hand.
17. In the order dated 9.4.1977, the Board, after referring to the history of the matter including the order passed earlier by it and the directions of this Court in two writ petitions, proceeded to consider the matter as follows:
“As stated earlier, the dispute which falls to be decided in this petition as per the directions of the High Court is regarding the right of management of the Puthiripadam Mosque. The four points to be considered in that respect as formulated in the decision in the O.Ps. Based upon the judgment in this Second Appeal are:-
(i) Whether the plea of the four Mahals that they have joint right to manage the Puthiripadam Mosque is to succeed or whether management was to be found to be exclusively in one of them viz., Puthocode Mosque?
(ii) How the future administration was to be done?
(iii) Any incidents and allied matters that may have to be decided as the circumstances may necessitate. The parties actually wanted settlement of a scheme and since that was within the powers of the Board it could have granted it as a consequential relief.
(iv) Interim directions as to the disposal of removal of the teak wood trees and timber and such other matters that may be called for in order to safeguard the interests of the Puthiripadam Mosque during the pendency of the dispute.
According to the petitioners the Puthiripadam Mosque and its compound belong to the Muslims of the four Amsoms, viz., Puthocode, Kannambara, Cannanore Pattola and Manjapra amsoms in Alathur Taluk, that the beneficiaries of the aforesaid Mosque and its compound are the Muslim inhabitants of the above four Amsoms, that the Puthiripadam Mosque came into existence long before the Puthocode Mosque was founded, that from the very inception of the Puthiripadam Mosque it was managed by the Karnavans of the four amsoms referred to above. Their prayer is to representatives from all the four Mahals mentioned above including the petitioners and the respondents. The respondents would on the other hand contend that the Puthucode Mosque was the first to come into being that the Puthiripadam Mosque property was given to Puthucode Mahal for using it as a burial ground that the Puthucode Jama-ath constructed a Mosque for the convenience of the persons who assembled there for the burial of the dead, that the Puthucode Mosque had been administrating the affairs of the Puthiripadam Mosque and its compound, that the Puthucode Mosque had been administrating the affairs of the Puthiripadam Mosque and its compound, that the Puthucode Jama-ath had exclusive possession and enjoyment of the Puthiripadam Mosque and its properties, that the Puthiripadam Mosque and its properties are only on adjunct of the Puthucode Mosque, that there is already a scheme of management adopted by the Puthucode Mosque which is in force and that therefore there is no necessity to settle a scheme for the management of the Puthiripadam Mosque and the compound. On deputation by the Board, its Secretary has visited both the Mosques. He has reported that there are Juma prayers in both the Mosques. It is also reported by him that the distance between the two Mosques is about 1 mile. There is no burial ground for the Puthucode Mosque. The Puthucode Mosque is situated in a property measuring 16 cents in Puthucode Amsom. The properties surrounding the Puthiripadam Mosque is 8 acres 3 cents in extent in Cannanore Pattola amsom. The burial ground in Puthiripadam Mosque is used by all the Muslims inhabiting Puthucode, Cannanore Pattola and Manjapra amsoms. It is clear from the above that the members of the Puthucode Jama-ath are also using the burial ground attached to the Puthiripadam Mosque. With regard to the origin of the two Mosques there is conflicting evidence. The deposition of DW1 in O.S13/1957 shows that Puthucode Pally came into existence in the year 1902.
On the basis of the documentary evidence produced on either side this Board had found that the Puthiripadam Mosque and its properties came into existence earlier than the Puthucode Mosque. It was further found by this Board that the Juma-Mosques have sprung in the four amsom referred to above subsequent to the founding of Puthiripadam and Puthucode Mosques. It was also found that even though such independent Juma Mosques, have came into existence, the Muslims of the four amsoms are using the Puthiripadam compound as their burial ground. The Board has found that the Puthucode Mosque and Puthiripadam Mosque should be treated as independent Mahals with the exception that the Puthucode will have their right to bury their dead in Puthiripadam Mosque compound as they were doing till now. It was further found that Puthucode has a scheme of its own which will continue in force as far as that Mahal is concerned. The Puthucode Mahal was registered in the officer of the Wakf Board under register No.2871/R4. The Hon’ble High Court has specifically found in the judgment in the two original petitions referred to above that a positive finding as to who is entitled to the right of management, whether it is the Puthucode Mahal alone or whether the Mosque in the other three Mahals, representing the Muslim population in those Mahals was necessary. The fourt further found that the burial of the dead from all the four Mahals in the Puthiripadam burial ground is not material and that the same will not determine the right of management nor will it obviate the necessity of a finding as to who is entitled to management, therefore, a positive finding as regards the right of management had to be made in this case.
The large volume of documentary evidence has been considered in detail by the Board and it was on the basis of the documentary evidence that the independent existence and functioning of the Puthocode Mosque and the Puthiripadam Mosque was found for. We think that the considerations for arriving at a decision as regards the right of management is the same as are now available in the case having regard to the evidence on record. The origin of the Mosque is also a relevant consideration for deciding upon the independent status of both the mosques. In this aspect the evidence as borne out by records is conflicting. The deposition of DW1 in O.S.13/1957 marked as P13 is relied upon to show that the Puthucode Pally came into existence in the year 19i02 and that it was elevated to a Juma Mosque in 1919. The evidence let in by the plaintiff is however contra. The respondents rely upon affidavits and account books produced by them. We consider it safer to rely upon documentary evidence rather than testimony of witnesses of affidavits produced in this case. Ext.P1 is a registration copy of a mortgage deed dated 24.7.1835 executed by Thekkillam Tharawad Karanavan in favour of Hariharan alias Perumal Pattar. In the said document the western boundary of the item No.6 in the schedule is shown as the Puthiripadam Mosque and its properties. This would show that the Puthiripadam Mosque and its properties were in existence in 1883 or even prior to that. The petitioners have got a case that the property in which the Puthiripadam Mosque is situated itself belonged in Janmam to Thekkillath Illam and it was granted to Puthiripadam Mosque for the purpose of using it as a burial ground. Ext.P5 is relied upon in this context. This is an affidavit of one Narayanaunni, a member of the Illam. He has stated that the Puthiripadam Mayyathankara Palli compound was granted to the Puthiripadam Mosque by Valie Koppunni Narayanan who was the Manager of the family for the benefits of the Muslims of the Cannanore Pattola, Puthucode, Manjapra and Kannambra amsoms. Ext.p2 is a certificate copy of the revenue settlement abstract for the year 1902 in respect of the Puthucode Mosque.it shoes that the Puthucode Palli have only 16 cents of land in which the present Jama-ath Mosque is situated. The respondents would however rely on Ext.P11 and P12. Ext.P11 is the patta of the Puthucode Mosque. The patta is dated 1893. Ext.P12 is the patta of the Puthiripadam Mosque. This is of the year 1902. Ext.P2 shoes that the Puthiripadam Mosque and its properties measured an extent of 8 acres and 3 cents in 1902. The only inference that can be drawn from the above documentary evidence is that the Puthiripadam Mosque and its properties came into existence earlier than the Puthucode Mosque. This would show that the Puthiripadam Mosque was functioning as a separate entity. The documentary evidence referred to above clearly evidences a separate entity in Puthiripadam Mosque and its properties. The Puthucode Mosque is also separately registered in the Wakf Board. There is no evidence to show that the properties, 8 acres and 3 cents on which the Puthiripadam Mosque is situated belongs to Puthucode Mosque as contended for by the respondents. On the other hand the evidence on record points to the fact that the properties belong exclusively to the Puthiripadam Mosque. The further contentions of the respondents that the Puthucode Jama-ath was exclusively in possession and management of Puthiripadam Mosque and its properties is also not supported by any evidence at all. The fact that the Puthiripadam Mosque properties is utilized as burial ground for the dead bodies from Puthucode Mahal will not creat any right in respect of the properties in favour of the Puthucode Mosque. The decision can also be based on the grant referred to above. The grant has been found in the favour of the Puthiripadam Mosque on the basis of the unimpeachable documentary evidence referred to above. The possession and enjoyment has to follow on that basis. The grant is in favour of Puthiripadam Mosque. The fact that dead bodies from all the four Mahals are being buried in the Puthiripadam mosque compound is indicative of the fact that the Muslim inhabitants of all the four Mahals are the beneficiaries of the Wakf and that all those persons are interested in the Wakf. Therefore, the first question formulated by the Hon’ble High Court viz., whether the plea of the four Mahals that they have joint right to manage the Puthiripadam Mosque is to succeed has to be answered in their favour. We, therefore, find that Muslim inhabitants of the four amsoms referred to above have the joint right of management. This takes us to the further question as to show the administration of the Puthiripadam Mosque is to be conducted. The decision in this question also has been relegated by the Hon’ble High Court to this Board. This Board think that it will be in the best interest of the Wakf to settle a scheme for the administration of the Puthiripadam Mosque and its properties. A draft scheme will be prepared and duly published within a month from the date of the order. The scheme will um brace the beneficiaries of the wakf and its properties consisting of Muslims inhabiting the Puthucode, Kannambra, Kannanore Pattola and Manjapra amsoms in Alathur Taluk. The right of management will be vested in a committee to be elected from among the members of the four amsoms under the scheme to be settled. The draft scheme will be finalised after hearing the objection, if any, from the members of all the four Mahals concerned. This Board makes it clear that Puthucode Mosque as such has no right of management, but the members of that Mahal also are the beneficiaries of the Puthiripadam Mosque and its properties.”
As already extracted above, the Board considered the question as to whether who had the right to manage Putharipadam Mosque and whether Putharipadam Mosque properties is to be managed exclusively by Puthucode Mosque, represented by the petitioners herein. It is thereafter that, after referring to the documentary evidence and obviously after hearing the counsel who are appearing, that independent existence and functioning of the Puthiripadam Mosque and Puthucode Mosque were found. It was in particular noted that the origin of the Mosque is also a relevant consideration for deciding upon the independent status of both the Mosques. The deposition of DW1 in O.S.13/57 would show that the petitioner Mosque came into existence in the year 1902 and thereafter, it was elevated to a Juma Mosque in 1919. Thereafter, reference is made to Ext.P1, which is a registration copy of the mortgage deed dated 24.7.1885 executed by the Thekkillam Tharawad Karanavan in favour of one Hariharan. In the said document, the western boundary of item no.6 in the schedule is shown as Putharipadam Mosque and its properties. The Board, thereafter held that Putharipadam Mosque and its properties were in existence in 1885. Reference is made to the affidavit of one Narayanaunni, who has stated that Putharipadam Mayyathankara Palli compound was granted to the Putharipadam Mosque by Valiya Koppunni Narayanan who was the manager of the family for the benefits of the Muslims of the four amsoms. Further reference is made to the settlement abstract in the year 1902 in respect of the Puthocode Mosque to show that Puthocode Palli was having 16 cents in which the present Jama-ath Mosque is situated. Reference is made to Exts.P11 and P12, which are the patta of Puthucode Mosque. It is interalia found that the documentary evidence clearly gives a separate entity in Putharipadam Mosque and its properties and there was no evidence to show that the properties, 8 acres and 3 cents on which Putharipadam Mosque is situated, belonged to Puthucode Mosque. Thereafter, it is also noted that the fact that the dead bodies from all the mahals are being buried in the Putharipadam Mosque compound indicated the fact that the Muslim inhabitants of all the four mahals are the beneficiaries of the wakf and that all those persons are interested in the wakf. It was found that the Muslim inhabitants of all the four amsoms have joint right of management and it is in the best interests of the wakf Board to settle a scheme for Putharipadam Mosque.
18. In the background of the history leading upto the passing of the order, this is a case where we must understand the order dated 9.4.1977 as a finding rendered by the Wakf Board on the specific question as to who is entitled to manage the Putharipadam Mosque and its properties. Repelling the claim of the petitioners that Puthucode Mosque had the exclusive right to manage, it was found that the people of all the four amsoms are entitled to participate in the management of the Mosque. As already noted, this was on the basis of the available material before the Wakf Board. We should also not be unmindful that the said order came to be passed in the back ground of the judgment in the Second Appeal and what is more, the order passed by this Court in the Writ Petitions challenging the earlier order passed by the Board.
19. A reading of all these orders leave us no doubt that the Board was called upon to decide the lis between the parties as to whether the Puthucode Mosque had exclusive right to manage the Mosque and its properties or whether the right of management would be claimed by the Muslim inhabitants of all the amsoms. There is an answer given by the Board on the basis of the materials before this Court. It is this order which is sought to be overridden by order dated 15.3.1997 passed nearly 20 years thereafter. No doubt, learned counsel for the petitioner has a version that it was in the changed circumstances that the Board took a fresh look at the fact situation viz., acquiring of burial grounds by all the amsoms and the vanishing of the need which existed at the time of passing of order dated 9.4.1977 for considering the issue in the context of there being no burial grounds for the other amsoms.
20. Sri Babu Karukapadath would also impress upon us the fact that Puthucode Mosque is situated in an extent of 16 cents and the Putharipadam Mosque and properties (8 acres and 3 cents is located hardly 1.5. Km. away from their property) were always in the control of Puthucode mahal. He would also contend that the prayer in the petition was to allow them also to administer along with the Puthucode Mosque, thereby admitting that Puthucode Jama-ath was administering. With the vanishing of the need which led to order dated 9.4.1977 and the changed stand adopted by two of the original petitioners who filed petition No.5/1971 and the submissions made by the other mahals, the order dated 15.3.1997 was fully justified, runs the argument.
21. The order dated 15.3.1997 starts with the finding which is a little startling to us as it says that various evidences and enquiry report reveals that the Puthiripadam Mayyathankara was under the jurisdiction and control of Puthocode Jama-ath for the past 300 years. We are not shown any material having been referred to in the order. Thereafter, the Wakf Board has proceeded to say that the Puthucode Jama-ath will be continued to be in the possession and control of the Mayyathankara on condition that representation will be given in the Puthocode Mahal committee for the Muslim inhabitants of nearby localities. Thereafter, for implementation of the above decision, parties were directed to submit a draft scheme. It is true that this order was challenged before this Court. We have already referred to the relevant portions of the order. It is undoubtedly true that while Section 11 of the Civil Procedure Code will not apply to writ proceedings, the general principles of res judicata will be applicable even in writ jurisdiction as general principles of res judicata have their origin in the well settled principle that man shall not be vexed on a matter twice. Thus when the prayer sought for in a Writ Petition is not granted, it must be held that it is turned down. The prayer in the Writ Petition was to quash the order dated 15.3.1997 and further to proceed in accordance with order dated 9.4.1977. We can take it that the said prayer was refused as it is not seen expressly granted. But, the question is whether that should be the end of our enquiry. What does the judgment of the learned Single Judge do? Does it uphold the order dated 15.3.1997 in the sense that it is ordered that it shall be the basis for further proceedings? We would think that there are at least two indications which tend to support the respondents in this case. Firstly, the learned Single Judge found that the order dated 15.3.1997 is an interim order. Secondly, the learned Single Judge found that when the matter goes back, the petitioners therein would be free to raise all the contentions untrammeled by the findings and observations in Ext.P7 and in the judgment. It is noted that the petitioners had submitted Ext.P6 scheme. The Court also directed that the petitioners are free to raise all their objections in the proposed scheme and petitioners and other parties can also submit a draft scheme. The scheme to be finalised could be challenged by any of the parties.
22. Therefore, we would think that in the light of the nature of the observations contained in the judgment, it could not be said that the parties would be estopped from contending for the position that order dated 9.4.1977 has not lost its finality or that proceedings need not be carried on, on the basis of the same. There is another dimension to the whole issue and that is the question whether the Board has power to review. We must in this context, refer to the findings of the Board in petition Nos.15/2001 and 43/2000. The Board formulated the following issues:
“1. Whether the order dated 9.4.77 of the Wakf Board is still in force and whether the said order is reviewed, cancelled or superseded by order dated 15.3.97?
2. Who is the Muthawalli of Putharipadam Jama-ath and who is entitled to administer the said Wakf?
3. Whether Puthukodu Jama-ath has acquired any vested right to administer Putharipadam Mosque and its properties by virtue of the order of the Wakf Board dated 15.3.97?
4. Whether the scheme prepared by the Board as per orders dated 19.08.97 and 04.03.98 of the Board is in accordance with the directions of the Hon’ble High Court of Kerala?
5. Whether the orders dated 15.3.97, 19.08.97 and 04.03.98 are within the powers of the Board and whether the said orders are null and void?
6. Whether the Board has power to review its own orders?
7. Whether the orders dated 15.3.97, 19.08.97 and 04.03.98 are liable to be recalled or cancelled?
8. Whether the Board has power to transfer property belonging to one Wakf to another Wakf?
9. Is Puthukodu Jama-ath entitled to receive the amount in deposit and whether the petitioners are entitled to get an order restraining them from receiving the same?
10. Is there any damage caused to Kabar or trees as alleged?
11. Was the amount released to Puthukodu Jama-ath misappropriated by them?
12. Is the receipt issued by the Board towards payment of contribution paid in respect of the Putharipadam Jama-ath mosque liable to be cancelled?
13. Is the petitioner entitled to direction to K.S.E.B. to change the name of cusumer?
14. Is taking over of the administration of the Putharipadam Jama-ath mosque or appointment of a receiver for administration of the said Jama-ath necessary or justified?”
The Board held as follows:
“32. It is on record to show that while proceedings to settle a scheme based on the order dated 9.4.77 of the Board was under way, based on report of a member the Board made the order dated 15.3.97. It can be seen from the order dated 15.3.97 that the said order was not issued in supersession of order dated 9.4.77. It is not an order reviewing the earlier order dated 9.4.77 since the Board has no power of review under the Wakf Act. Moreover order dated 15.3.97 does not specifically or implicitly cancel or modify the order dated 9.4.77. In the circumstances, it has to be held that the order dated 9.4.77 of the Board continued to be in force despite the order dated 15.3.97.
33. The question then arises when order dated 9.4.77 and order dated 15.3.97 are in conflict, which should prevail. It can be seen that order dated 9.4.77 is an elaborate order made based on the records and materials placed before it by the Board as directed by the Hon’ble High Court of Kerala. Order dated 15.3.97 does not specifically refer to any of the documentary or oral evidence referred to in the order dated 9.4.77 based on which the said order was made. Order dated 15.3.97 does not give any reason for taking a different stand in contrast to the findings in order dated 9.4.77. Order dated 15.3.97 is therefore is not a speaking order. The record did not show when the Board received the report of the member and when it considered the same. More over no opportunity was given to the parties to the proceedings for hearing on the matter. If the Board wanted to re-consider the matter in the light of the report, it ought to have given an opportunity of being heard. Moreover, order dated 15.3.97 does not lay down any definite finding as to who is entitled to manage or administer Putharipadam mosque and its properties as directed by the Hon’ble High Court of Kerala. As such, order dated 15.3.97 cannot be said to be in accordance with the direction of the Hon’ble High Court of Kerala and cannot be said to have decided the matter keeping in mind the purpose for which the dispute was relegated to the Board by the Hon’ble High Court of Kerala. In the circumstances, it has to be held that the order dated 9.4.77 is still in force and overrides order dated 15.3.97, which is an order beyond the power or authority of the Board.
34. Point No.2: In view of the documentary and other evidences which was elaborately considered by the Board in its order dated 9.4.77 and in view of the fact that Putharipadam Mosque is in existence prior to the coming into existence of Puthukodu Mosque, the argument that Putharipadam Mosque is under Puthukodu Mahal and the said Mahal Committee is entitled to manage Putharipadam Mosque and its properties cannot be accepted. Since the preponderance of evidence in the case indicates that Putharipadam Mosque is a separate independent Wakf of which Muslim inhabitants of Kannannur Pattola Kannambra, Puthukode, and Manjapra are beneficiaries, it has to be held that Putharipadam Mosque and its properties are to be managed by a committee elected from among Muslim inhabitants of the aforesaid four amsoms.
35. Point No.3: The Board has already found that the order dated 9.4.77 overrides the order dated 15.3.97. The order dated 15.3.97 cannot be given effect to since it is in conflict with order dated 9.4.77 and for other reasons stated above. Since both the orders cannot stand together and since the Board has no power to review its own order, the order dated 15.3.97, which is in conflict with order dated 9.4.77 has to be held to be beyond the power or authority of the Board and has to be treated as non-est. In the circumstances, Puthukode Juma-ath has not acquired any vested right to administer Putharipadam mosque and its properties by virtue of order dated 15.3.97 of the Board.”
The said order has been upheld by the tribunal.
23. We must at this juncture consider the question as to what is the nature of the proceedings before the Wakf Board. Learned counsel for the petitioner would submits that the proceedings before the Wakf Board is administrative in nature. Learned counsel for the respondent would contend that the proceedings before the Wakf Board is quasi judicial. There can be no dispute for the proposition that if a decision is taken by a quasi judicial body, then it has no power to review its own decision, unless the power of review is specifically conferred on it (See the decision of the Apex Court in Kalabharati Advertising v. Hemant Vimalnath Narichania and Others (2010) 9 SCC 437). Therefore, the question is whether we should accept the argument of the learned counsel for the petitioner that the matter must be viewed in the light of the provisions of Section 69 of the Act. Section 32 of the Wakf Act reads as follows:
“32. Powers and function of the Board.-(1) Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such Wakfs were created or intended:
Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the Wakf, the purposes of the Wakf and any usage or custom of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs.
Explanation.- For the removal of doubts, it is hereby declared that in this sub-section, ‘Wakf’ includes a Wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act.
(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-
(a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every Wakf;
(b) to ensure that the income and other property of Wakfs are applied to the objects and for the purposes for which such Wakfs were intended or created;
(c) to give directions for the administration of Wakfs;
(d) to settle schemes of management for a Wakf;
Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;
(e) to direct-
(i) the utilization of the surplus income of a Wakf consistent with the objects of Wakf;
(ii) in what manner the income of a Wakf, the objects of which are not evident from any written instrument, shall be utilized;
(iii) in any case where any object of Wakf has ceased to exist or has become incapable of achievement, that so much of the income of the Wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community;
Provided that no direction shall be given under this Clause without giving the parties affected, an opportunity of being heard.
Explanation:- For the purposes of this clause, the powers of the Board shall b exercised-
(i) in the case of a Sunni Wakf, by the Sunni members of the Board only; and
(ii) in the case of a Shia Wakf, by the Shia members of the Board only;
Provided that where having regard to the number of the Sunni or Shia members in the board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause;
(f) to scrutinize and approve the budgets submitted by mutawallis and to arrange for auditing of account of Wakfs;
(g) to appoint and remove mutawallis in accordance with the provisions of this Act.
(h) to take measures for the recovery of lost properties of any Wakf;
(i) to institute and defend suits and proceedings relating to Wakfs;
(ii) to sanction any transfer of immovable property of a Wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act:
Provided that no such sanction shall be given unless at atleast two-thirds of the members of the Board vote in favour of such transaction;
(k) to administer the Wakf Fund;
(l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the Wakf property as the Board may, from time to time require;
(m) to inspect, or cause inspection of , Wakf properties, accounts, records or deeds and documents relating thereto;
(n) to investigate and determine the nature and extent of Wakf and Wakf property, and to cause, whenever necessary, a survey of such Wakf property;
(o) generally do all such acts as may be necessary for the control, maintenance and administration of Wakfs.
(3) Where the Board has settled any scheme of management under clause (d) or given any direction under clause (e) of sub-section (2), any person interested in the Wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final.
(4) Where the Board is satisfied that any Wakf land, which is a Wakf property, offers a feasible potential for development as a shopping centre, market, housing flats and the like, it may serve upon the mutawalli of the concerned Wakf a notice requiring him within such time, but not less than sixty days, as may be specified in the notice, to convey its decision whether he is willing to execute the development works specified in the notice.
(5) On consideration of the reply, if any, received to the notice issued under sub-section (4), the Board, if it is satisfied that the mutawalli is not willing or is not capable of executing the works required to be executed in terms of the notice, it may, with the prior approval of the Government, take over the property, clear it of any building or structure thereon, which, in the opinion of the Board is necessary for execution of the work and execute such works from Wakf funds or from the finances which may be raised on the security of the properties of the Wakf concerned, and control and manage the properties till such time as all expenses incurred by the Board under this Section, together with interest thereon, the expenditure on maintenance of such works and other legitimate changes incurred on the property are recovered from the income derived from the property;
Provided that the Board shall compensate annually the mutawalli of the concerned Wakf to the extent of the average annual net income derived from the property during the three years immediately preceding the taking over of the property by the Board.
(6) After all the expenses as enumerated in sub-section (5) have been recouped from the income of the developed properties, the developed properties shall be handed over to mutawalli of the concerned Wakf.”
Section 69 of the Wakf Act reads as follows:
“69. Power of Board to frame scheme for administration of Wakf.-(1) Whenever the Board is satisfied, whether on its own motion or on the application of not less than five persons interested in any Wakf, that it is necessary or desirable to frame a scheme for the proper administration of the Wakf, it may by an order frame such scheme for the administration of the Wakf, after consultation with the mutawalli or the applicant in the prescribed manner.
(2) A scheme framed under sub-section (1) may provide for the removal of the mutawalli of the Wakf holding office as such immediately before the date on which the scheme comes into force:
Provided that where any such scheme provides for the removal of any hereditary mutawalli, the scheme shall also provide for the appointment of the person next in hereditary succession of the mutawalli so removed, as one of the members of the committee appointed for the proper administration of the wakf.
(3) Every order made under sub-section (2) shall be published in the prescribed manner, and, on such publication shall be final and binding on the mutawalli and all persons interested in the Wakf:
Provided that any person aggrieved by an order made under this section may, within sixty days from the date of the order, prefer an appeal to the Tribunal and after hearing such appeal, the Tribunal may confirm, reverse or modify the order;
Provided further that the Tribunal shall have no power to stay the operation of the order made under this section.
(4) The Board may, at any time by an order, whether made before or after the scheme has come into force, cancel or modify the scheme.
(5) Pending the framing of the scheme for the proper administration of the Wakf, the Board may appoint a suitable person to perform all or any of the functions of the mutawalli thereof and to exercise the powers, and perform the duties, of such mutawalli.”
24. Section 32(2)(c) provides for power with the Board to frame Schemes. The power to frame Scheme is specifically enumerated in Section 69. The power includes as correctly pointed out by the learned counsel for the petitioner, to even remove a hereditary Mutawalli. Equally correct is the argument of the learned counsel for the petitioner that the Board may at any time by an order, whether made before or after the scheme has come into force, cancel or modify the scheme. The question, however, is whether the order dated 9.4.1977 can be said to be an order by which the Board has framed a scheme. The order dated 9.4.1977 came to be passed, as already noted, in the aftermath of the Judgment of this Court in the Second Appeal wherein the parties were relegated to the Wakf Board for decision on their rival claims as to who should manage the Putharipadam Mosque and its properties. This was pointedly the specific issue which was the bone of the contention between the parties. It is undoubtedly true that the petitioners in Petition No.5/71 had prayed for framing of a Scheme, but the order dated 9.4.1977 has dealt with the right to manage, administer the Putharipadam Jama-ath Mosque and its properties. It is after the Wakf Board decided the said lis between the parties, the Board finds that it was necessary to frame a scheme. Therefore, there are two parts to the said order. Firstly, the Board has decided the issue as to who is entitled to manage the Putharipadam Mosque. Thereafter, in keeping the prayer in the Petition No.5/71, the Wakf Board also ordered the making of the draft scheme, calling for publication and for finalizing the scheme. As far as the part of the order by which the Board decided the question as to who was entitled to manage, whether the Puthukode Jama-ath has the exclusive right to manage or whether all the Amsoms have the right to participate in the administration of the Mosque, they are all questions which are anterior and leading upto the decision as to the desirability for a scheme. The portion of the order dated 9.4.1977 which dealt with those issues cannot be treated as an order framing the scheme within the meaning of Section 69 of the Act. We are reinforced in this connection also by the observation made by the learned Single Judge who disposed of AS.No.339/89 which we have already extracted, that is to say, the learned Judge also understood the order as preliminary to the settlement of a scheme, in s Suit to frame a scheme. In a Civil Court, at the first stage, the Court would if it is so invited, decide the question as to whether circumstances exist for the framing of the scheme. It is thereafter that a court would pass a final decree framing of the scheme. The scheme would be appended to the decree. The said scheme, of course, can be modified by filing a suit if circumstances exist. Therefore, we would think that the order dated 9.4.1977 must be treated as an order passed in exercise of its powers under Section 15 of the erstwhile Wakf Act and Section 32, the present version. When the statutory authority is given the power to frame a scheme, we would think that it must also be endowed with the authority to decide the issue of right to manage between the two rival factions. As to what shall be the final scheme, as a matter of course, should be decided with reference to various inputs including the right to management inhering in the parties. No doubt, no right, even if it be of a hereditary Mutawalli can be sacrosanct and while it may merit being considered as a relevant factor, once the Board considers the question from the point of view of the interests of the Wakf and its beneficiaries, it is the interests which will be paramount.
25. Now we will pass on the concerned question whether the proceedings are quasi judicial proceedings. Section 32, undoubtedly, provides for general superintendence of the wakfs in the Board and it is to exercise its powers so that the wakfs under its superintendence are properly maintained, controlled and administered. Then sub-section (2) provides for specific enumeration of the functions. The Board can give directions. It can settle schemes and there are a host of other things it can do. We may, in particular, cull out two of them. Sub-clause (g) provides powers to appoint and remove mutawallis in accordance with the provisions of the Act. Sub-clause (o) apparently a residuary clause, declares it to be the function of the Board to generally do all acts as are necessary for the control, maintenance and administration of the wakfs. Just as understood by the learned Judge who decided the Second Appeal and understood by the parties also, it is our understanding also, that the issue relating to who is entitled to administer the properties in question, is one which could be decided by the Wakf Board. In fact, there is no serious dispute about this aspect for the learned counsel for the petitioner. The question arises in the context of the facts of this case, in particular, whether the nature of the decision is one which is quasi judicial. In Administrative Law (Tenth Edition) by H.W.R. Wade and C.F. Forsyth, the learned Authors would state as follows:
“A judicial decision is made according to rules. An administrative decision is made according to administrative policy. A Judge attempts to find what is the correct solution according to legal rules and principles. An administrator attempts to find what is the most expedient and desirable solution in the public interest. It is true, of course, that many decisions of the courts can be said to be made on grounds of legal policy and that the courts sometimes have to choose between alternative solutions with little else than the public interest to guide them. There will always be grey areas. Nevertheless, the mental exercises of Judge and administrator are fundamentally different. The Judge’s approach is objective, guided by his idea of the law. The administrator’s approach is empirical, guided by expediency. Under this analysis, based on the nature of the functions, many so-called administrative tribunals, such as social security and employment tribunals, have judicial rather than administrative functions, since their sole task is to find facts and apply law objectively.
A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. A typical example is a minister deciding whether or not to confirm a compulsory purchase order or to allow a planning appeal after a public inquiry. The decision itself is administrative, dictated by policy and expediency. But the procedure is subject to the principles of natural justice, which require the minister to act fairly towards the objectors and not (for example) to take fresh evidence without disclosing it to them. A quasi judicial decision is therefore an administrative decision which is subject to some measure of judicial procedure.”
In State of H.P. v. Raja Mahendra Pal and Others ((1999) 4 SCC 43), the Apex Court was dealing with the question as to when the authority can be said to be discharging quasi judicial functions.
The Court held as follows:
“8. Quasi-judicial acts are such acts which mandate an Officer the duty of looking into certain facts not in a way which it specially directs but after a discretion, in its nature judicial. The exercise of power by such tribunal or authority contemplates the adjudication of rival claims of the persons by an act of the mind or judgment upon the proposed course of official action as to an object of the corporate power, for the consequences of which the official will not be liable, although his act was not well judged. A quasi-judicial function has been termed to be one which stands midway a judicial and an administrative function. The primary test is as to whether the authority alleged to be a quasi-judicial one, has any express statutory duty to act judicially in arriving at the decision in question. If the reply is in the affirmative the authority would be deemed to be quasi-judicial, and if the reply is in the negative, it would not be, the dictionary meaning of the word “quasi” if “not exactly”.
9. It follows, therefore, that an authority is described as quasi-judicial when it has some of the attributes or trappings of judicial functions, but not all. This Court in Province of Bombay v. Khushaldas S. Advani dealt with the actions of the statutory body and laid down tests for ascertaining whether the action taken by such a body was a quasi-judicial act or an administrative act. The Court approved the celebrated definition of the quasi-judicial body given by Atkin, L.J., as he then was in R. v. Electricity Commrs. In which it was held:
“Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”
The aforesaid definition was accepted as correct in R. v. London County Council and many subsequent cases both in England and in India. Again this Court in Radeshyam Khare v. State of M.P. relying upon its earlier decision held:
“It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statue is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin. L.J.”
Relying on paras 114 and 115 of Halsbury’s Laws of England, 3rd Edn., Vol. 11 at pp.55-58 and citing the case of R. v. Manchester Legal Aid Committee, learned counsel for the appellants contends that where a statute requires decision to be arrived at purely from the point of view of policy or expediency the authority is under no duty to act judicially. He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially. As stated in para 115 of Halsbury’s Laws of England, Vol.11 at p.57 the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions. The principles deducible from the various judicial decisions considered by this Court in Khushaldas S. Advani at p.725 (of SCR): (at p.260 of AIR) were thus formulated, namely-
‘(i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statue which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statue to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.”
26. Therefore, applying the said principles, if we appreciate the powers, we would think that there was a definite lis between the parties, that is, between Puthukode Amsom and members drawn from other Amsoms as to whether Puthukode Amsom has got the exclusive right to administer or whether members from other Amsoms, who are to join in the administration of the Putharipadam Mosque. This was a question to be decided on the basis of the materials which were made available to the Board. By no stretch of imagination, could it be said that it was a decision which could be taken with the freedom which is possessed by an administrator per se in the exercise of his administrative power pursuant to policy carved out in public interest. The Board was enjoined upon to decide the issue on the basis of the materials before it. As held by the Apex Court in the decision in Kalabharati Advertising v. Hemant Vimalnath Narichania and Others ((1999) 4 SCC 43), and authority when it decides a dispute made by one party which is opposed by other party and determines the rights of the parties, there is a lis and unless there is something to the contrary in the Statute, a duty to act judicially can be inferred and the act becomes that of a quasi judicial body. There are various functions under Section 32 of the Act. We must not be understood to hold that al the functions mentioned in Section 32 are to be treated as quasi judicial. But, at any rate, when a scheme is being framed and anterior to the actual framing of the scheme, it would appear it becomes necessary as it happened in this case to decide the title of the contesting parties to administer the wakf and its properties, then that decision has to be treated as a quasi judicial one. In fact, the proviso to Section 32(d) provides that the settlement of the scheme must be preceded by compliance with the principles of natural justice. It is also an indication of the element of duty to act judicially. Clearly, the decision dated 9.4.1977 was an order which decided the rights of the parties. It had a chequered history dating back to 1956 which we have already adverted to. Therefore, we would think that the said order dated 9.4.1977 deciding the dispute with reference to the materials and after hearing the parties must be treated as the product of a quasi judicial functioning by the Wakf Board. We would be reinforced in our finding if we also refer to the power of the Board to remove Mutawallis. Certainly, it can be nobody’s case that a Mutawalli can be removed without complying with the principles of natural justice. In fact, it speaks about the removal as per the provisions of the Act. Section 64 in fact specifically deals with the power of removal. Sub-section (3) of Section 64 taboos any action being taken unless the Board holds an enquiry and a decision is taken by a majority of 2/3rds of the Members of the Board. It is inconceivable to think that the Board when it acts in the exercise of its powers to remove a Mutawalli can be dubbed as acting in a bare administrative capacity. So also, the respondents may not be unjustified in attempting to seek shelter under the omnibus clause in Section 32(2)(o) as it has the power to do all acts for the administration of the wakfs. There may be many acts which may be done by the Board which may be administrative in nature. But, when the Board is called upon to decide a lis as to who is entitled to administer the wakf and it is also to be done on the basis of the materials made available to it, after hearing the parties and its decision has far reaching repercussions on the rights of the parties, we would think that such a decision could be characterized as a quasi judicial function. By Section 69(4) the Board has power to modify the scheme, whether before or after it has come into force. As we have already noted, the order dated 9.4.1977 dealt with the issue as to who was entitled to manage the Putharipadam Mosque and its properties. Thereafter, it was ordered that the scheme be framed. We would think that the order deciding the rights of the parties, is not one which can be modified on the strength of Section 69(4). Section 69(4) speaks about the canceling or modifying the scheme. The order by which the rights were decided, namely order dated 9.4.1977, cannot be treated as a scheme. The scheme would naturally follow the said decision. In fact, nobody has a case that a scheme should not be framed. What is in dispute is what should be the nature of the scheme. Further, we must also notice that in the order dated 15.3.1997 also, the Board has directed that the Puthukode Mahal will continue to manage, but with participation from all the other Muslims in the localities. We have already noticed that the order dated 15.3.1997 is totally unsupportable by any reasoning which would stand scrutiny. No materials as such are placed before us as could have persuaded the Board to take the decision which it did. There is yet another angle from which the issue may be looked into. A decision to be resjudicata, must be pronounced by a body competent to decide the issue. If there is no power of review with the Board to review the order dated 9.4.1977 in regard to the right to manage Putharipadam Mosque and its properties, then the order dated 15.3.1997 can be viewed as an order passed by a body which is not competent to pass such an order. Therefore, we would think that the order dated 9.4.1977 in so far as it purports to decide the rights of the parties in regard to the administration of the Putharipadam Mosque, cannot be said to be overridden by order dated 15.3.1997. By order dated 9.4.1977, the Board has recognized the rights of all members of the four Amsoms on the basis of the materials before it to administer the Putharipadam Mosque and its properties. We repel the argument of the learned counsel for the petitioner that the order was based on the fact that all Members of the different Amsoms were burying the dead in the burial ground of Putharipadam Mosque. As already noted, there were other materials in the form of documentary evidence of some antiquity. In the circumstances of the case, we feel that the petitioner has failed to establish a case for interference under Section 83(9) of the Act.
27. Learned counsel for the petitioner would submit that if this Court is not inclined to interfere in the matter, it may be indicated that when the final scheme is framed, domination must be provided for to the petitioner, having regard to the history. We do not think that any such direction could be warranted on the basis of the facts of this case.
The Revision Petitions are dismissed.