P. NAZEER VS SALAFI TRUST Case

P. NAZEER VS SALAFI TRUST Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE 
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.3132­3133 OF  2016
P. NAZEER ETC.                                …APPELLANT(S)
VERSUS
SALAFI TRUST & ANR. ETC.  …RESPONDENT(S)
J U D G M E N T
V.RAMASUBRAMANIAN, J.
1. Aggrieved by a common Judgment delivered by the High Court of
Kerala in two Civil Revision Petitions filed under the proviso to subsection (9) of Section 83 of the Waqf Act, 1995, reversing the judgment
of the Waqf Tribunal and decreeing the suit of the respondents in
entirety, but dismissing their own suit, the appellants have come up
with the above civil appeals.
1
2. We have heard Shri R. Basant, learned senior counsel appearing
for the appellants and Shri V. Giri, learned senior counsel appearing
for the private contesting respondents. 
3. The   sole   appellant   in   one   of   the   above   appeals   by   name
Shri P. Nazeer was the defendant in a suit O.S No.10 of 2004 filed by
the respondents 1 and 2 herein, on the file of Waqf Tribunal, Kollam.
The three appellants in the other civil appeal were the plaintiffs in O.S
No.9 of 2004 filed on the file of very same Waqf Tribunal, Kollam.
Since the appeals on hand arose out of cross­suits between the same
parties and also since the subject matter of the dispute relates to the
right   to   management   and   administration   of   a   mosque   and   its
properties, it will be easy to appreciate the facts, if presented in a
tabular column:
Suit No. Names   of   of
Plaintiffs
Names   of   of
defendants
Reliefs
sought
Reliefs
granted   by
Waqf
Tribunal
OS   No.9
of 2004
1.Salafi Juma
Masjid Mahal
Committee
2. K.M. Syed,
President
3.   P.   Nazeer,
Secretary
1. Salafi Trust
2. H.E. Ahmed
Thahir   Sait,
Vice President 
3.  A.K. Babu,
Secretary
4.  O.M. Khan,
Salabhavan
i) pass a 
decree 
declaring that 
the document 
No.2 issued by 
the 6th
Defendant is 
1.   The   relief   of
declaration   was
rejected.
2.     The   relief   of
permanent
injunction
granted
2
5. S. Rasheed,
Cashier
6.     The   CEO,
Kerala   Waqf
Board, 
7.     Kerala
Waqf Board
null and void.
ii) Issue   a
decree   of
permanent
prohibitory
injunction
restraining the
Defendants
No.1 to 4 their
men,   agents
and supporters
from
interfering into
or   obstructing
the
management
and
administration
of   plaint
schedule
mosque and its
institutions   by
the   Plaintiff
Committee.
restraining
defendants 1 to 4
from   interfering
with   the
management and
administration   of
the   plaint
schedule   waqf
and   its
institutions.
OS No.10
of 2004
1.   Salafi
Trust
2.  A.K. Babu
    P. Nazeer (i) Declaring
that   the   2nd
Plaintiff   is   the
Secretary of the
1
st  Defendant
Trust.
(ii)   Restraining
the   Defendant
or   anybody
under   him   by
permanent
injunction   from
interfering   with
1.   Declaration
that   the   second
plaintiff   A.K.
Babu   is   the
secretary of Salafi
Trust is granted.
2.   But the relief
of   permanent
injunction   is
rejected.
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administration
&   management
of   the   1st
Plaintiff   Trust
and   scheduled
property by the
2
nd Plaintiff
as the Secretary
of   the   1st
Plaintiff.
4. It is necessary to bring on record, before proceeding further,  that
document No.2 in respect of which the appellants herein sought a
declaration of nullity, in their own suit O.S No.9 of 2004, was a
certificate issued by the Chief Executive Officer of Kerala Waqf Board
dated 24.03.2004 in favour of Salafi Trust. The said certificate reads
as follows:
“This is to certify that the Salafi Trust, Mattanchery, Cochin2 in Kochi Taluk, Ernakulam District, Kerala State and its
properties having 17 cents comprised in Survey No.527/4
within the limit of Ambalappuzha Taluk Alappuzha District
have   been   registered   before   the   Kerala   Waqf     board   as
required under Section 36 of the Waqf Act, 1995 being its
registration No.6406/RA.  As per records of this office, Shri
A.K. Babu is the present secretary of the above Trust.”
5. In other words the appellants in the second civil appeal before
us, namely, (i) Salafi Juma Masjid Mahal Committee; (ii) its President
4
K.M. Syed; and (iii) its Secretary P. Nazeer, sought two sets of reliefs
from the Waqf Tribunal. They were (i) to declare the certificate dated
24.03.2004 issued by the Chief Executive Officer of the Kerala Waqf
Board   in   favour   of   Salafi   Trust   as   null   and   void;   and  (ii)  for   a
permanent injunction restraining the defendants from interfering with
their   management   and   administration   of   the   mosque   and   its
properties. Though the Tribunal granted the relief of injunction, the
Tribunal   refused   the   relief   of   declaration.   However,   these   three
appellants did not choose to challenge the Judgment of the Waqf
Tribunal rejecting the relief of declaration.
6. Similarly the respondents 1 and 2 herein sought two sets of
reliefs from the Tribunal, namely, (i) for a declaration that the second
respondent A.K. Babu is the Secretary of the first respondent­Trust
namely Salafi Trust; and  (ii)  for a permanent injunction restraining
Shri P.Nazeer, the Secretary of the Mahal Committee from interfering
with their right of management of the mosque. Though the Tribunal
granted   the   relief   of   declaration,   it   did   not   grant   the   relief   of
injunction.
5
7. Therefore,  (i)  Salafi Trust; and  (ii)  its Secretary A.K. Babu filed
two civil revision petitions before the High Court of Kerala under the
proviso to Sub­section (9) of Section 83 of the Waqf Act, 1995. The
High Court allowed both the civil revision petitions, dismissing O.S
No.9 of 2004 in entirety and decreeing O.S No.10 of 2004, as prayed
for. Therefore, the group which we may conveniently refer to as ‘Mahal
Committee’ 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 Waqf
Board; (ii) that though the mosque was constructed in a vacant plot
given by Salafi Trust, the management and the administration of the
waqf was with the Mahal Committee; (iii) that as per the law relating
to waqfs, the person who manages the waqf is the Mutawalli; (iv) that
upon a complaint lodged by the appellant Shri P. Nazeer on behalf of
the Mahal Committee, an enquiry was held by the Waqf Board; (v) that
though the Enquiry Officer recorded a finding that the management
and administration of Salafi Masjid was with the Mahal Committee of
which P. Nazeer was the Secretary, the Chief Executive Officer of the
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Waqf Board wrongfully issued the certificate dated 24.03.2004; and
(vi) that, therefore, the said certificate should be declared as null and
void and a permanent injunction should be issued restraining Salafi
Trust   and   its   men   from   interfering   with   the   management   and
administration of the mosque.
9. Interestingly, the Waqf Tribunal refused to declare the Certificate
dated 24.03.2004 as void, on the ground that undisputedly, Salafi
Trust got the waqf registered under Section 36 of the Waqf Act and
that admittedly Mr. A.K. Babu was the Secretary of the Trust. But the
relief of injunction was granted by the Waqf Tribunal on the ground
that   the   management   and   administration   of   the   mosque   and   its
properties was with the Mahal Committee.
10. In the revision, the High Court found (i) that Mahal Committee is
not a registered entity and hence not entitled to file a suit; (ii) that the
suit was not even filed in a representative capacity after following the
procedure prescribed under Order 1 Rule 8 CPC; (iii) that though the
challenge was to the management and administration of a mosque and
its immovable properties, there was no schedule of property attached
7
to the plaint in O.S No.9 of 2004; and (iv) that as per the evidence on
record,   it   was   the   Salafi   Trust   which   was   in   management   and
administration of the mosque and its properties. On the basis of these
findings, the High Court decreed the suit filed by the respondents in
entirety and dismissed the suit filed by the appellants in full.
11. Assailing the order of the High Court, Shri R. Basant, learned
senior counsel contended that the High Court exceeded its revisional
jurisdiction and decided the  lis  as though it was a regular appeal.
Relying   upon   the   Constitution   Bench   decision   of   this   Court   in
Hindustan   Petroleum   Corporation   Limited  vs.  Dilbahar   Singh,
1
the   learned   senior   counsel   contended   that   wherever   the   statute
employed   the   expressions   “appeal”   and   “revision”,   the   expression
“revision” is meant to convey the idea of a much narrower jurisdiction.
Sub­section (9) of Section 83 of the Waqf Act declares that no appeal
shall lie against any decision given by the Waqf Tribunal. Therefore,
the learned senior counsel contended that the proviso to Sub­section
(9) which confers a revisional jurisdiction upon the High Court, is
meant to confer a jurisdiction narrower than the jurisdiction of an
1 (2014) 9 SCC 78
8
appellate Court. In the case on hand, according to the learned senior
counsel for the appellants , the High Court appreciated the evidence
independently and recorded findings on questions which were not
even   framed   as   issues   by   the   Tribunal   and   that,   therefore,   the
impugned order of the High Court is completely contrary to law.
12. While we agree with the learned senior counsel for the appellants
that the revisional jurisdiction conferred by the proviso to Sub­section
(9) of Section 83 is narrower than the jurisdiction that could have
been conferred upon an appellate court, we do not think that the
impugned order of the High Court suffers from the vice sought to be
attributed by the learned senior counsel for the appellants.
13. Admittedly, the Mahal Committee which is appellant No.1 in one
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 about the
corporate status of the Mahal Committee. In the written statement
filed by Salafi Trust, they raised a specific contention that plaintiff
No.1 was not a legal entity and that it is an illegal association of
certain  individuals  and  that  there  was  not   even  a  pleading  as  to
9
whether there were any bye­laws and as to how plaintiffs No.2 and 3
became the President and Secretary respectively.
14. Unfortunately,   the   Waqf   Tribunal,   in   paragraph   17   of   its
Judgment held that plaintiff No.1 is a legal entity, entitled to sue and
be sued. This was solely on the ground that plaintiff No.1 (Mahal
Committee) was one of the Sakha units affiliated to a registered society
by name Kerala Naduvathil Mujahideen (‘KNM’ for short).
15. The aforesaid finding is completely contrary to law. A society
registered under the Societies Registration Act is entitled to sue and
be sued, only in terms of its bye­laws. The bye­laws may authorise the
President or Secretary or any other office bearer to institute or defend
a suit for and on behalf of the society. Under section 6 of the Societies
Registration Act, 1860, “every society registered under the Act may sue
or be sued in the name of President, Chairman, or Principal Secretary,
or trustees, as shall be determined by the rules and regulations of the
society and, in  default  of such determination, in  the  name of  such
person as shall be appointed by the governing body for the occasion”.
Even   the   Travancore­Cochin   Literary,   Scientific   and   Charitable
10
Societies Registration Act, 1955, which is applicable to parts of Kerala
carries a similar provision in section 9. Therefore, unless the plaintiff
in a suit which claims to be a society, demonstrates that it is a
registered entity and that the person who signed and verified the
pleadings was authorised by the bye­laws to do so, the suit cannot be
entertained.  The fact that the plaintiff in a suit happens to be a local
unit or a  Sakha  unit of a registered society is of no consequence,
unless the bye­laws support the institution of such a suit. 
16. The   Waqf   Tribunal   committed   a   gross   illegality,   first   in   not
framing an issue about the status of the Mahal Committee and then in
recording a finding as though the local unit of a registered society
which is in enjoyment of affiliated status, was entitled to sue. Such an
illegality committed by the Tribunal was liable to be corrected by the
High Court under its revisional jurisdiction and hence the fulcrum of
the argument of the learned senior counsel for the appellants, has to
fall to the ground.
17. As a matter of fact, the Mahal Committee did not file any revision
against the rejection by the Waqf Tribunal of the relief of declaration
regarding   the   certificate   dated   24.03.2004   issued   by   the   Chief
11
Executive Officer of the Kerala State Waqf Board. In the plaint filed by
the Mahal Committee in OS No.9 of 2004, they assailed the certificate,
on   the   ground   that   the   said   certificate   completely   repudiated   the
findings   of   the  Enquiry   Officer   that  the   Mahal   Committee   was   in
management and administration of the Masjid. In other words the
appellants herein understood, and rightly so, that the certificate dated
24.03.2004 sought to dislodge their claim to be in management and
administration of the mosque. Therefore, the rejection by the Waqf
Tribunal, of the prayer for declaring the said certificate to be null and
void was fatal to their claim. Yet the appellants did not choose to file a
revision. Today they cannot take umbrage under the fact that in any
case,   the   Tribunal   found   them   to   be   in   management   and
administration of the waqf.
18. Though the High Court did not put against the appellants, their
failure to file a revision, we think it is a crucial fact which cannot be
overlooked. This is for the reason that the document dated 24.03.2004
is a certificate of registration issued under Section 36 of the Waqf Act,
1995. Once it is admitted that it was the first respondent namely the
Salafi Trust who got the mosque registered as a waqf under Section 36
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of the Act and once it is admitted by the appellants in paragraph 2 of
their plaint in OS No.9 of 2004 that the mosque was constructed in a
vacant plot demised by Salafi Trust, it was not open to them to go
against the statutory prescriptions and claim to be the Mutawalli.
19. Though Shri R. Basant, learned senior counsel for the appellants
also invited our attention to certain other aspects in the impugned
judgment, we do not think that we need to go into each of these issues
when we are convinced that the High Court exercised its revisional
jurisdiction correctly and justly.  
20. Therefore the appeals are dismissed.   There shall be no order to
costs.
…………………………….J.
(Hemant Gupta)
…………………………….J.
(V. Ramasubramanian)
New Delhi
March  30, 2022.
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