MUHAMMAD HUSSAIN Vs. CHIEF EXECUTIVE OFFICER

JUDGEMENT

(1.) The petitioners are approaching this Court aggrieved by Ext.P3 order passed by the 2nd respondent Board and the consequential order passed by the 1st respondent as per Ext.P4.

(2.) The respondents 4 to 8 herein had filed Ext.P2 petition before the 2nd respondent Board seeking relief to the extent of framing a scheme for the administration of the "Ali Haji Mosque and Ali Haji Makham and Burial Ground". The application was supported by a detailed affidavit in which the competence of the petitioners herein and other persons cited as respondents in Ext.P2, to administer the waqf in question was challenged. Inter alia, allegations about mismanagement of the waqf was raised, pointing out various incidents of maladministration. Further, one of the main contention raised was that, there exists no scheme for administration of the waqf in question. The 2 nd respondent Board, on adjudication of the matter with notice to the parties, had arrived at a conclusion that the waqf in question is a public waqf and is not a family waqf and that there exists no written bye-laws for administration. From the materials available, it was also found that, there exists mismanagement from the side of the respondents before the Waqf Board. Hence the Board found that it is highly necessary to take over the waqf by the Board by permitting the representation of the 'Mutawalli Family' and local people from the locality. The Board observed that waqf has got very valuable properties and buildings, but only a meager income is derived out of those properties. Hence the Board directed the 1st respondent to appoint a competent person as 'Interim Mutawalli' to trace out the properties of the waqf and to take steps to recover the properties as per the Rules. Further it was observed by the Board that, it is a fit case for framing a scheme under Section 69 of the Waqf Act, 1995 and therefore the Divisional Officer of the 2nd respondent Board at Kannur was directed to prepare a draft scheme for management of the waqf in question. Consequent to Ext.P3 order passed by the Board on 9th July, 2019, the 1st respondent had issued Ext.P4 proceedings appointing the 3rd respondent herein as Interim Mutawalli. Ext.P6 is a letter issued by the Interim Mutawalli to the 1st petitioner herein to handover all the records relating to administration of the waqf to the said Interim Mutawalli.

(3.) The petitioners are challenging Exts.P3 P4 and P6 on various grounds. One of the main contention raised is that going by Section 32(2)(g) of the Act, the power to appoint a Mutawalli is vested only with the Board and the Board has no right in delegating such power to the Chief Executive Officer. It is further contended that, there existed no circumstances as contemplated under Section 63 of the Act necessitating appointment of an Interim Mutawalli. It is also contended that Ext.P2 petition itself was not maintainable before the Waqf Board due to non impleadment of the waqf itself as a party. Incidentally other contentions are also raised.