THAYYIL KUNHIMOHAMMED HAJI Vs. DARUL HUDA ISLAMIC ACADEMY

JUDGEMENT

(1.) Give unto God what belongs to Him and leave man to enjoy what belongs to him. If this balance is tilted, peace on earth is disturbed. Once a Wakf is duly created, the property belongs to God and the enjoyment is to be restricted to the dedicated purposes. There being a restriction on enjoyment of property, progeny is tempted or prompted to probe as to whether there is a valid Wakf at all. Which is the forum to first look into the matter is the crucial question arising for consideration in this case.

(2.) The petitioners are respondents 2, 5 and 8 in AS No. 10/2001 on the file of the Wakf Tribunal, Kozhikode. The matter was pursued before the Tribunal by respondents 1 and 2 aggrieved by the suo motu steps of the Board to register 17 cents of property in Re survey No. 230/2 in Kozhikode district, which is popularly known as Mampram Makkam. The suit was initially dismissed by the Tribunal holding that respondents 1 and 2 are not entitled to maintain an appeal before the Tribunal against the decision taken by the Wakf Board to register Mampram Makkam as Wakf property. The matter was taken up before this Court in CRP No. 672/2002 and OP No. 17924/2002. This Court disposed of the civil revision petition and the writ petition by common order dated 29/08/2002 holding that the finding of the Tribunal that the revision petitioner is not competent to file an appeal before the Wakf Tribunal is not correct in view of S.83 of the Wakf Act. Therefore, this Court held that "...... it is only just and proper to set aside the judgment of the Wakf Tribunal and remand the case to the lower Court for fresh consideration". It was also observed that "admittedly, before taking a decision in respect of Mampram Makkam, no notice was issued either to the petitioner in CRP No. 672 of 2002 or to the petitioner in OP No. 17924 of 2002. So the Wakf Board was not justified in suo motu registering Mampram Makkam as Wakf without giving notice to the interested parties and without complying the procedure provided in the Wakf Act." Therefore, in the writ petition this Court issued a direction to the Wakf Tribunal "...... to consider AS No. 10 of 2001 on merit after giving an opportunity to the parties in the CRP and in the OP to substantiate their case."

(3.) The Tribunal, after an elaborate discussion of the facts and evidence, came to the conclusion that the Wakf Board has not properly exercised its jurisdiction in the matter of registration. It was noted that the affected parties had not been given an opportunity to place their contentions before the Board as to whether the disputed property is Wakf or not and hence the suo motu registration without such an opportunity was illegal and consequently remitted the matter to the board for fresh consideration.