P. NAZEER ETC. versus SALAFI TRUST & ANR. ETC. on 30 March 2022

1. Aggrieved by a common Judgment delivered by the High Courtof Kerala in two Civil Revision Petitions filed under the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995, reversing the judgmentof the Waqf Tribunal and decreeing the suit of the respondents in entirety,but dismissing their own suit, the appellants have come up with the abovecivil appeals.

2. We have heard Shri R. Basant, learned senior counsel appearingfor the appellants and Shri V. Giri, learned senior counsel appearing forthe private contesting respondents.

3. The sole appellant in one of the above appeals by name ShriP. Nazeer was the defendant in a suit O.S No.10 of 2004 filed by therespondents 1 and 2 herein, on the file of Waqf Tribunal, Kollam. Thethree appellants in the other civil appeal were the plaintiffs in O.S No.9of 2004 filed on the file of very same Waqf Tribunal, Kollam. Since theappeals on hand arose out of cross-suits between the same parties andalso since the subject matter of the dispute relates to the right to A

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Amanagement and administration of a mosque and its properties, it will beeasy to appreciate the facts, if presented in a tabular column:

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G4. It is necessary to bring on record, before proceeding further,that document No.2 in respect of which the appellants herein sought adeclaration of nullity, in their own suit O.S No.9 of 2004, was a certificateissued by the Chief Executive Officer of Kerala Waqf Board dated24.03.2004 in favour of Salafi Trust. The said certificate reads as follows:

P. NAZEER ETC. v. SALAFI TRUST & ANR. ETC.

[V. RAMASUBRAMANIAN, J.]

“This is to certify that the Salafi Trust, Mattanchery, Cochin-2 inKochi Taluk, Ernakulam District, Kerala State and its propertieshaving 17 cents comprised in Survey No.527/4 within the limit ofAmbalappuzha Taluk Alappuzha District have been registeredbefore the Kerala Waqf board as required under Section 36 ofthe Waqf Act, 1995 being its registration No.6406/RA. As perrecords of this office, Shri A.K. Babu is the present secretary ofthe above Trust.”

5. In other words the appellants in the second civil appeal beforeus, namely, (i) Salafi Juma Masjid Mahal Committee; (ii) its PresidentK.M. Syed; and (iii) its Secretary P. Nazeer, sought two sets of reliefsfrom the Waqf Tribunal. They were (i) to declare the certificate dated24.03.2004 issued by the Chief Executive Officer of the Kerala WaqfBoard in favour of Salafi Trust as null and void; and (ii) for a permanentinjunction restraining the defendants from interfering with theirmanagement and administration of the mosque and its properties. Thoughthe Tribunal granted the relief of injunction, the Tribunal refused therelief of declaration. However, these three appellants did not choose tochallenge the Judgment of the Waqf Tribunal rejecting the relief ofdeclaration.

6. Similarly the respondents 1 and 2 herein sought two sets ofreliefs from the Tribunal, namely, (i) for a declaration that the secondrespondent A.K. Babu is the Secretary of the first respondent-Trustnamely Salafi Trust; and (ii) for a permanent injunction restraining ShriP.Nazeer, the Secretary of the Mahal Committee from interfering withtheir right of management of the mosque. Though the Tribunal grantedthe relief of declaration, it did not grant the relief of injunction.

7. Therefore, (i) Salafi Trust; and (ii) its Secretary A.K. Babufiled two civil revision petitions before the High Court of Kerala underthe proviso to Sub-section (9) of Section 83 of the Waqf Act, 1995. TheHigh Court allowed both the civil revision petitions, dismissing O.S No.9of 2004 in entirety and decreeing O.S No.10 of 2004, as prayed for.Therefore, the group which we may conveniently refer to as ‘MahalCommittee’ has come up with the above civil appeals.

8. The case of the appellants before the Waqf Tribunal was: (i)that Salafi Juma Masjid is a public waqf registered with the Kerala WaqfBoard; (ii) that though the mosque was constructed in a vacant plot AB

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Agiven by Salafi Trust, the management and the administration of thewaqf was with the Mahal Committee; (iii) that as per the law relating towaqfs, the person who manages the waqf is the Mutawalli; (iv) thatupon a complaint lodged by the appellant Shri P. Nazeer on behalf of theMahal Committee, an enquiry was held by the Waqf Board; (v) thatthough the Enquiry Officer recorded a finding that the management andBadministration of Salafi Masjid was with the Mahal Committee of whichP. Nazeer was the Secretary, the Chief Executive Officer of the WaqfBoard wrongfully issued the certificate dated 24.03.2004; and (vi) that,therefore, the said certificate should be declared as null and void and apermanent injunction should be issued restraining Salafi Trust and itsCmen from interfering with the management and administration of themosque.

9. Interestingly, the Waqf Tribunal refused to declare the Certificatedated 24.03.2004 as void, on the ground that undisputedly, Salafi Trustgot the waqf registered under Section 36 of the Waqf Act and thatDadmittedly Mr. A.K. Babu was the Secretary of the Trust. But the reliefof injunction was granted by the Waqf Tribunal on the ground that themanagement and administration of the mosque and its properties waswith the Mahal Committee.

10. In the revision, the High Court found (i) that Mahal CommitteeEis not a registered entity and hence not entitled to file a suit; (ii) that thesuit was not even filed in a representative capacity after following theprocedure prescribed under Order 1 Rule 8 CPC; (iii) that though thechallenge was to the management and administration of a mosque andits immovable properties, there was no schedule of property attached tothe plaint in O.S No.9 of 2004; and (iv) that as per the evidence onFrecord, it was the Salafi Trust which was in management andadministration of the mosque and its properties. On the basis of thesefindings, the High Court decreed the suit filed by the respondents inentirety and dismissed the suit filed by the appellants in full.

11. Assailing the order of the High Court, Shri R. Basant, learnedGsenior counsel contended that the High Court exceeded its revisionaljurisdiction and decided the lis as though it was a regular appeal. Relyingupon the Constitution Bench decision of this Court in HindustanPetroleum Corporation Limited vs. Dilbahar Singh,[1] the learned seniorcounsel contended that wherever the statute employed the expressionsH1 (2014) 9 SCC 78

“appeal” and “revision”, the expression “revision” is meant to conveythe idea of a much narrower jurisdiction. Sub-section (9) of Section 83of the Waqf Act declares that no appeal shall lie against any decisiongiven by the Waqf Tribunal. Therefore, the learned senior counselcontended that the proviso to Sub-section (9) which confers a revisionaljurisdiction upon the High Court, is meant to confer a jurisdiction narrowerthan the jurisdiction of an appellate Court. In the case on hand, accordingto the learned senior counsel for the appellants, the High Court appreciatedthe evidence independently and recorded findings on questions whichwere not even framed as issues by the Tribunal and that, therefore, theimpugned order of the High Court is completely contrary to law.

12. While we agree with the learned senior counsel for theappellants that the revisional jurisdiction conferred by the proviso to Sub-section (9) of Section 83 is narrower than the jurisdiction that could havebeen conferred upon an appellate court, we do not think that the impugnedorder of the High Court suffers from the vice sought to be attributed bythe learned senior counsel for the appellants.

13. Admittedly, the Mahal Committee which is appellant No.1 inone of the two appeals on hand, was plaintiff No.1 in O.S No.9 of 2004.In the plaint in O.S No.9 of 2004, there was not even a whisper aboutthe corporate status of the Mahal Committee. In the written statementfiled by Salafi Trust, they raised a specific contention that plaintiff No.1was not a legal entity and that it is an illegal association of certainindividuals and that there was not even a pleading as to whether therewere any bye-laws and as to how plaintiffs No.2 and 3 became thePresident and Secretary respectively.

14. Unfortunately, the Waqf Tribunal, in paragraph 17 of itsJudgment held that plaintiff No.1 is a legal entity, entitled to sue and besued. This was solely on the ground that plaintiff No.1 (Mahal Committee)was one of the Sakha units affiliated to a registered society by nameKerala Naduvathil Mujahideen (‘KNM’ for short).

15. The aforesaid finding is completely contrary to law. A societyregistered under the Societies Registration Act is entitled to sue and besued, only in terms of its bye-laws. The bye-laws may authorise thePresident or Secretary or any other office bearer to institute or defend asuit for and on behalf of the society. Under section 6 of the SocietiesRegistration Act, 1860, “every society registered under the Act may A

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Asue or be sued in the name of President, Chairman, or PrincipalSecretary, or trustees, as shall be determined by the rules andregulations of the society and, in default of such determination, inthe name of such person as shall be appointed by the governingbody for the occasion”. Even the Travancore-Cochin Literary, Scientificand Charitable Societies Registration Act, 1955, which is applicable toBparts of Kerala carries a similar provision in section 9. Therefore, unlessthe plaintiff in a suit which claims to be a society, demonstrates that it isa registered entity and that the person who signed and verified thepleadings was authorised by the bye-laws to do so, the suit cannot beentertained. The fact that the plaintiff in a suit happens to be a local unitCor a Sakha unit of a registered society is of no consequence, unless thebye-laws support the institution of such a suit.

16. The Waqf Tribunal committed a gross illegality, first in notframing an issue about the status of the Mahal Committee and then inrecording a finding as though the local unit of a registered society whichDis in enjoyment of affiliated status, was entitled to sue. Such an illegalitycommitted by the Tribunal was liable to be corrected by the High Courtunder its revisional jurisdiction and hence the fulcrum of the argument ofthe learned senior counsel for the appellants, has to fall to the ground.

17. As a matter of fact, the Mahal Committee did not file anyErevision against the rejection by the Waqf Tribunal of the relief ofdeclaration regarding the certificate dated 24.03.2004 issued by the ChiefExecutive Officer of the Kerala State Waqf Board. In the plaint filed bythe Mahal Committee in OS No.9 of 2004, they assailed the certificate,on the ground that the said certificate completely repudiated the findingsof the Enquiry Officer that the Mahal Committee was in managementFand administration of the Masjid. In other words the appellants hereinunderstood, and rightly so, that the certificate dated 24.03.2004 soughtto dislodge their claim to be in management and administration of themosque. Therefore, the rejection by the Waqf Tribunal, of the prayer fordeclaring the said certificate to be null and void was fatal to their claim.GYet the appellants did not choose to file a revision. Today they cannottake umbrage under the fact that in any case, the Tribunal found them tobe in management and administration of the waqf.

18. Though the High Court did not put against the appellants, theirfailure to file a revision, we think it is a crucial fact which cannot beoverlooked. This is for the reason that the document dated 24.03.2004 isH

P. NAZEER ETC. v. SALAFI TRUST & ANR. ETC.[V. RAMASUBRAMANIAN, J.]

a certificate of registration issued under Section 36 of the Waqf Act,1995. Once it is admitted that it was the first respondent namely theSalafi Trust who got the mosque registered as a waqf under Section 36of the Act and once it is admitted by the appellants in paragraph 2 oftheir plaint in OS No.9 of 2004 that the mosque was constructed in avacant plot demised by Salafi Trust, it was not open to them to go againstthe statutory prescriptions and claim to be the Mutawalli.

19. Though Shri R. Basant, learned senior counsel for the appellantsalso invited our attention to certain other aspects in the impugnedjudgment, we do not think that we need to go into each of these issueswhen we are convinced that the High Court exercised its revisionaljurisdiction correctly and justly.

20. Therefore the appeals are dismissed. There shall be no orderto costs.

Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals dismissed.

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