KOZHIKARAVEETTIL SEYD ALAVI Vs. EXECUTIVE COMMITTEE

JUDGEMENT

(1.) THE prayers sought for in the writ petition filed under Article 226 of the Constitution of India are the following:

(2.) BRIEFLY put, the case of the petitioner is as follows: Petitioner's father late Sainudheen Thangal came from Malappuram and settled down in Poomala which was a hidden remote place at that time and he had established a Thykavu during his life time. He spent his whole time in the Thykavu and also by virtue of some magical touch healing was made to people mainly those who lost their mental faculty balance. The Thykavu stood in 40 cents of property and about 3 acres and 40 cents was fully possessed and enjoyed by the petitioner's father during his life time and thereafter the petitioner. In the said 3 acres and 40 cents of property there was certain plantations caused by the petitioner's father. In addition to the 3 acres and 80 cents stated above there is 2 acres of property more which was in the custody and which was belonging to the petitioner's father. So far as 3 acres and 80 cents of property were concerned, actually 40 cents of property can be taken as a wakf property. However some people in the area with an eye to grab the said property had approached the Wakf Board stating that 3 acres and 80 cents of property is a wakf property and that a scheme should be framed for management of the same. Such a petition was filed by five persons as petition No.10 of 1987 and at that time there was another group who wanted to protect the interest of the petitioner and his family being successor of late Sainudheen Thangal. So they moved an idea to have the management of the Thykavu under a Trust constituted by them. But, in fact the property that was intended to be taken for management was the 40 cents which was intended to be the Thykavu property. So the petitioner had raised objection regarding the framing of a scheme. But however the 5th respondent held that the Trust is having no right or authority over the wakf and the property belongs to the general Muslim inhabitants in the area and that a scheme should be framed for the administration of the wakf. It was accordingly the Board passed Ext.P1 order. However the said order was not implemented by the Board also. It appears that without making proper parties a writ petition was filed before this Court by the 2nd respondent alleging that the Board has not initiated further action in the matter and thereafter the Board issued notice to the petitioner also stating that a draft scheme was submitted by the 4th respondent and any objection in the said draft scheme should be filed. The petitioner filed Ext.P2 objection mainly stating that the Board has no power to act upon the draft scheme submitted by a third party. Thereafter Ext.P3 order was passed by the Board wherein the 4th respondent and Abdu were stated as President and Secretary of Poomala Thykavu Bharana Samithi. In the said order it is stated that the administration of the wakf will be carried out in accordance of the provisions of Ext.P4 scheme. The said order was challenged by the petitioner by filing W.O.A.No.5 of 2012 and Ext.P5 interim order of stay of further proceedings was obtained in I.A.No.29 of 2012. The said order of stay continued till 10.09.2012. But the Wakf Tribunal dismissed the W.O.A.No.5 of 2012 for default and the petitioner had filed application to set aside the said order as I.A.No.243 of 2012 and the said interim application is now posted for objection and hearing to 14.05.2013. In the said proceedings as 13th respondent the Wakf Board filed Ext.P6 counter statement. However taking into account the dismissal of the appeal for default and in spite of filing application to restore the same to file Ext.P7 notice was published stating that in respect of five acres and 75 cents of property the Board on 26.02.2013 authorized the Paripalana Samithi to collect usufructus from the cashew trees. Since the main matter was not restored, petitioner in whose possession the property has filed W.O.A.No.1 of 2013 and sought for stay of the same. The Tribunal deliberately postponed the interim application and till this date no order was passed and the same is posted to 14.06.2013. By that time the sale was conducted and the right was purchased by a third party. Now curiously enough Ext.P8 notice is also issued stating that the auction will be conducted in respect of 180 trees standing in the property. In the said notice it is stated that the sale is going to be held on the basis of order passed by the Wakf Board as per B2- 7712/C.R. dated 15.05.2013. The petitioner who was also a party in the entire proceedings in the so called formation of the scheme was not given any notice of any such proceedings nor even heard on such proceeding and he came across the said notice only on 03.06.2013 and immediately he filed Ext.P9 application to obtain copies of the said proceedings, etc. Accordingly under the guise of exercise of power by the Wakf Board dispossession of the property is going to be effected and that too without giving any opportunity to the petitioner to raise objection against such act. Hence this writ petition.

(3.) WE notice that substantially the prayer is against Ext.P8 notice. Ext.P8 notice is issued by a private body. Therefore, a writ of certiorari as such may not lie. But, then the learned counsel for the petitioner would submit that he has challenged Ext.P3 order before the Wakf Tribunal and he obtained an order of stay also. Subsequently the Wakf Tribunal dismissed the appeal for default. He has filed an application for restoration of the appeal accompanied by an application for condonation of delay of 22 days. It is submitted that the said matter was heard by the Wakf Tribunal and it is taken up for orders and is posted to 03.07.2013.