W.A.No.

2001 of 2022 1
2023:KER:5680

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 19TH DAY OF JANUARY 2023 / 29TH POUSHA, 1944
WA NO. 2001 OF 2022
AGAINST THE ORDER IN WP(C) 36063/2022 OF HIGH COURT OF KERALA
APPELLANT/PETITIONERS:

1 NASSIR MANAYIL
AGED 58 YEARS
S/O ABDULLA,
MANAYIL HOUSE, SOUTH VELIYATHUNAD P.O.,
VIA ALUVA, ERNAKULAM , PIN - 683511
2 T.M. ABDUL SALAM
AGED 56 YEARS
S/O MUHAMMED,
THYKOODATH HOUSE,
VAZHAKKALA, THRIKKAKARA P.O., KOCHI
PIN - 682021
BY ADVS.
C.K.SHERIN
T.U.ZIYAD

RESPONDENTS/RESPONDENTS:

1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY
GOVT. SECRETARIAT, THIRUVANANTHAPURAM
PIN - 695001
2 THE SECRETARY TO GOVERNMENT
DEPARTMENT OF REVENUE (F),
(IN CHARGE OF WAKFS), GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE DISTRICT COLLECTOR
ERNAKULAM, KAKKANAD, PIN – 682030
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4 THE TAHSILDAR
LAND RECORDS, KOCHI TALUK, PIN - 682001
5 THE VILLAGE OFFICER
KUZHUPILLY VILLAGE, KUZHUPILLY, VYPIN, ERNAKULAM,
PIN - 682501
6 THE VILLAGE OFFICER
PALLIPURAM VILLAGE, PALLIPURAM, VYPIN, ERNAKULAM,
PIN - 682515
7 KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
V.I.P. ROAD, KALOOR, KOCHI
PIN - 682017
8 THE MUTHAVALLY
MUHAMMED SIDDIK SAIT WAKF, REG. NO. 9980/RA,
FAROOK COLLEGE MANAGING COMMITTEE
REPRESENTED BY ITS SECRETARY,
FAROOK, KOZHIKODE
PIN - 673632

BY ADVS.
JAMSHEED HAFIZ, STANDING COUNSEL – WAKF BOARD
SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2023,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 19th day of January, 2023

S.MANIKUMAR, CJ.

Before the writ court, in W.P.© No.36063/2022, petitioners/appellants has sought

for the following reliefs:

(i) To call for the records leading to Exhibit P9 and quash the same by issuing a
writ of certiorari;
(ii) To issue a writ of mandamus or any other appropriate writ, order or tax from
the unauthorised occupants of the property covered by wakf deed registered as
2115/1950 of Edapally SRO and included in the Muhammed Siddik Sait Wakf with
Reg. No. 9980/RA;
(iii) To declare that acceptance of land tax from the unauthorised occupants of the
property covered by wakf deed registered as 2115/1950 of Edapally SRO and
included in the Muhammed Siddik Sait Wakf with Reg. No. 9980/RA are illegal
since Kerala State Wakf Board has already initiated proceedings to recover the
Wakf property;
(iv) To dispense with the filing of translation of vernacular documents.
(v) To issue any such other appropriate writ, order or direction, as this Hon'ble
Court deem fit and proper considering the facts and circumstances of the case in
the interest of justice;

2. Short facts leading to the filing of the writ appeal are as follows:

2.1 .According to the appellants, in 2008, the Government of Kerala appointed a

Commission of Inquiry under the Commissions of Inquiry Act, 1952. The Enquiry
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Commission conducted a detailed inquiry into the functioning of the Kerala State Wakf

Board and the transfer of Wakf properties etc. and Government of Kerata accepted the

said report. The 15th report of the Enquiry Commission specifically refers to the property

in question and found that the property in question is a wakf property and

recommended action. Further, from all reports of all the authorities, it is categorically

found that the property in question is purely a wakf property and proceedings are

already initiated by the Kerala State Wakf Board to recover the said wakf properties after

the directions in this regard issued by Government.

2.2 It is also submitted that the Goverment of Kerala also issued orders in 2014

and 2017 making it clear that all recommendations of the Enquiry Commission have

been implemented and actions are taken therein, which is evident from the judgment

dated 24.11.2016 in WP(C) No. 26893 of 2012 of a Division Bench of this Court. The

said writ petition was filed by the appellants, who are the president and secretary of a

registered organisation constituted to protect all the Wakfs in Kerala. The appelants are

also the beneficiaries of the wakf properties in question as the same is dedicated to the

community at large.

2.3 According to the appellants, admittedly, wakf property is a property

permanently dedicated to the Almighty and the same cannot be alienated or transferred

detrimental to the dedication of Wakf, who creates a wakf deed. In the meanwhile, as

per Exhibit P9 communication dated 7.10.2022 issued by the Tahsildar, Land Records,

Kochi Taluk, Kochi – the 4th respondent to the Village Officer, Kuzhuppilly, Pallipuram,
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Ernakulam – the 6th respondent, based on a report of the District Collector, Ernakulam –

the 2nd respondent, to accept the land tax from the unauthorised occupants. It is in this

background alleging that Exhibit P9 direction of the 4th respondent is illegal, arbitrary

and against the decision of the Government and it also violates the settled position of

law, the writ petition was filed.

3. Pending disposal of the said writ petition, the petitioners therein has sought for

the following interim relief:

"For the reasons stated in the foregoing paragraphs, it is respectfully

prayed that this Hon'ble Court may be pleased to stay Ext P9 order of the 4 th

respondent directing the 5th and 6th respondents not to accept land tax from the

persons who unauthorisedly occupy the Wakf property covered by wakf deed

registered as 2115/1950 of Edapally SRO and included in the Muhammed Siddik

Sait Wakf with Reg. No. 9980/RA, pending disposal of writ petition."

4. Adverting to the averments and the prayers sought for, vide interim order

dated 12th December, 2022, a learned Single Judge has passed the following order:

“ ORDER
This Court had on 10.11.2022 directed the parties to maintain status
quo. It is made clear that the above order will not in any way affect Revenue
Officers from issuing necessary Revenue Certificates or effecting mutation or
accepting tax with regard to the properties which are claimed to be Wakf
properties.
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Post after X'mas holiday, 2022.”

5. Being aggrieved, the instant writ appeal is filed with the following

grounds:.

“D. The learned single judge failed to appreciate the fact that the Kerala State Wakf
Board had already filed counter affidavits in WP(C) No. 12121/2022 confirming that
it is Wakf property. Exhibit. P1 Enquiry Commission report, as well as all the reports
of Wakf Board which was approved by the Government was also not taken into
consideration by the learned single

E. As per the commission report the government has already initiated proceedings to
recover the Wakf property from unauthorised occupants. Therefore by accepting tax
from the unauthorised occupants will confer a right on them. It is submitted that this
Hon'ble Court had in so many decisions held that the acceptance of tax is only a
fiscal exercise and that will not confer any right on the title of the property. That
pertains to the pendency of civil suits between the parties with regard to the title of
the property. But here the situation is different. It is very clearly stated in all the
reports that it is Wakf property. So the acceptance of tax from the unauthorised
occupants is clearly illegal, unfair and unjust. The persons now attempting to remit
tax are people who have no right over the property. Their status is only in the rank
of trespassers and permitting them to remit tax will indirectly confer on them the
semblance of a right which would otherwise give them a right which is otherwise
unavailable in law. The acceptance of tax will be construed as creating an otherwise
unavailable right over the property.
F. As per Rule 93 of Chapter X of Kerala Wakf Rules any transfer effected by a
Mutawally or any person of immovable property owned by a Wakf without the
previous permission of the board shall be invalid. Therefore, the direction to accept
land tax from the unauthorised occuptants of the Wakf property is against law, facts
and circumstances in this case.
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G. The impugned interim order is not a reasoned one, taking note not of the actual
facts and circumstances of the case, the impact nature and consequences was not at
all considered by the learned Single Judge while passing the impugned order."

6. A Hon'ble Division Bench, on 27/12/2022, while issuing notice before

admission, has directed the learned Government Pleader to take notice on

behalf of respondents 1 to 6. Learned counsel for respondent No.7 had also

taken notice and notice was issued to respondent No.8 by speed post. The

said order reads thus:

“Issue notice before admission. Learned GP takes notice for

respondents 1 to 6. Sri.Jamsheed Hafiz takes notice for the 7 th respondent.

Issue notice to R8 by speed post.

On a consideration of pleadings and materials on record, we find that

the appellants have made out a prima facie case for an interim order. Hence,

we stay the direction on Annexure -A5 order directing the Revenue Officers

from issuing necessary revenue certificates and effecting mutation for period

of one month.

Post after X'mas holidays.”

7. We have heard Mr.T.U.Ziyad – learned counsel for appellants, Mr.Jamsheed

Hafiz – learned Standing Counsel for the Wakf Board, Sri.Tek Chand.V. - learned Senior

Government Pleader, perused the pleadings and materials on record.

8. The learned counsel appearing on either side as above, consented that the

interim order dated 27.12.2022, taking care of the interest of the contesting parties as
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regards the right to title of the property and effecting mutation is confined only for a

period of one month, sought for the disposal of instant appeal by making the interim

order absolute. In view of the above, we are not adverting to the rival submissions in

the writ appeal.

9. Though, some other respondents have not been served, we are of the view

that they would not be seriously prejudiced by making the interim order absolute in the

above terms. The interim order dated 27.12.2022 in the appeal is made absolute.

Accordingly, writ appeal is disposed of with liberty of the parties to seek for early

hearing of the matter.

Sd/-
S.MANIKUMAR,
CHIEF JUSTICE

Sd/-
SHAJI P. CHALY,
smv JUDGE
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APPENDIX OF WA 2001/2022

PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE INTERIM ORDER IN WP(C) NO.
36063/2022 DATED 10.11.2022
Annexure A2 TRUE COPIES OF THE COUNTER AFFIDAVIT FILED BY
KERALA STATE WAKF BOARD IN WP(C) NO. 12121/2022
Annexure A3 TRUE COPIES OF THE STATEMENT FILED BY KERALA
STATE WAKF BOARD IN WP(C) NO. 12121/2022 ALONG
WITH TRANSLATION
Annexure A4 A TRUE COPY OF THE INTERIM ORDER PASSED IN
WP(C) NO. 12121/2022
Annexure A5 CERTIFIED COPY OF THE INTERIM ORDER IN WP(C)
36063/2022 DATED 12.12.2022