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Judgment
Mohammed Nias.C.P.,J
This writ petition is filed for a declaration that the Wakf Board has no power to adjudicate upon the claim raised by the second respondent in OP No.15 of 2021 and to cancel the entire proceedings. Essentially, the contention of the petitioner is that he is the Muthawalli of one Puttekkad Mahal Juma-ath Palli, which is registered with the Wakf Board. The second respondent has filed OP No.15 of 2021, Ext.P5, to appoint him as the Muthawalli claiming that he is the older member of the family, entitled to be appointed as the Muthawally going by the provisions in the Wakf deed.
The learned counsel for the petitioner contends, such a dispute as to who should be the Muthawalli or in other words the rival claims of Muthawalliship, cannot be decided by the Wakf Board as it has no power to adjudicate over the same. In support of his contention, he relies upon the judgment of the Division Bench of this Court in CRP(Wakf) No.189 of 2015 dated 29.10.2018. He also submits that an objection has been filed in this regard before the Wakf Board and the same is not yet considered and the proceedings are being continued by the Board.
Though the learned standing counsel for the Wakf Board argued that in view of Section 32 (1)(g), the Wakf Board has the power to appoint and remove Muthawalli de hors Section 63, which only deals with and appointment of an interim Muthawalli and that the judgment above referred did not consider it in the right perspective, we do not think it necessary in this case to probe further, particularly, as we are informed that the said judgment is challenged before the Supreme Court.
Having heard the learned counsel for the petitioner, the learned standing counsel for the Wakf Board, and the learned counsel for the second respondent, we are not inclined to consider the contention raised on behalf of the petitioner in the first instance. It may be true that the power to adjudicate the rival claims for Muthawallshipi lies with Tribunal but the Board can in the proceedings instituted before it certainly enquire into whether there is any valid and legitimate dispute between two persons on the question of Muthawalliship and if the Board finds the said dispute to be one genuinely arising for consideration, it may not be in a position to proceed further as the same requires an adjudication that can only be done by the Wakf Tribunal.
In the light of the above, there will be a direction to the Wakf Board to consider the preliminary issue as to whether there exists a legitimate dispute between the petitioner and the second respondent on their entitlement to become the Muthawalli and pass appropriate orders, in accordance with law within an outer period of three months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.