Peramboor Koya vs State Of Kerala and Others

Jagannadha Rao, C.J.—The first Appellant was first Petitioner in the writ petition, O.P. 4771 of 1988. The second writ Petitioner in the writ petition was one P. Mohammed who died during the tendency of the writ petition. In his place, one Mohammed s/o Marakkar has come on record as a person Mutawalli nominated by the Managing Committee.

The dispute relate to the office of Mutawalli. The Appellants claim by way of nomination by an elected Managing Committee. The Respondents 3 and 4 claim as hereditary Mutawallies, as heirs of one Kunhjrayan Ali.

The facts are as follows:

The father of the Respondents 3 and 4, one kunhirayan Ali, was functioning as the Mutawalli of the Wakf in question from 1972 after the demise of his father as per the terms of a Wakf Deed of 1939 (document 215d of 1939). Now, after the demise of the said Kunhirayan Ali, his daughter and son (Respondents 3 and 4) claimed to be the Mutawallies as per the registered deed executed by Kunhirayan Ali (deed No. 431 of 1981) dated 17th August 1981.

Originally, the rival claimant to the above office of Mutawalli was one K.K.S. Kunhi Thangal. He was nominated by the Managing Committee of the Wakf. The Managing Committee itself is said to have come into existence on 18th January 1974 when the members of the Mahal or Congregation are said to have prepared a written constitution.

There is a dispute as to the bye-laws. One Vadakkethil Valiya Mohammed was elected as President and the said K.K.S. Kunhi Thangal was nominated as the Mutawalli. It is said that the Managing Committee ''removed'' Kunhirayan Ali before nominating the said K.K.S. Kunhi Thangal as Mutawalli. Aggrieved thereby, Kunhirayan Ali filed O.S. 273 of 1974 in the District Munsiff''s Court, Perinthalmanna for injunction. In that suit, there was a clear finding that Kunhirayan Ali was validly functioning as Mutawalli for a long time after his father''s demise as per the Deed of Wakf of 1939 and was the lawful Mutawalli. The Civil Court held:

From Exts. A-5 and A-6 dated 15th January 1975 and 7th December 1975 respectively, it is seen that the Plaintiff is the Mutawalli in 1975 also, i.e., at the time of filing of the suit and subsequent to it. So the case of the Defendant that the Plaintiff has been removed from the office of Mutawalli by the Committee cannot be recognised in law.

However, the suit was dismissed on other grounds. It was also stated in the judgment that the persons claiming to have been nominated by the elected body on 18th January 1974, have to seek recognition before the Wakf Board.

In 1976, the elected Managing Committee and its nominee K.K.S. Kunhi Thangal filed petition 10 of 1976 u/s 44 of the Wakf Act seeking recognition, of the nominee Sri K.K.S. Kunhi Thangal as the lawful Mutawalli and impleading the hereditary Mutawalli, Kunhirayan Ali as Respondent. By an elaborate order, Ext. P-1, dated 16th December 1977, the Wakf Board rejected the said petition of the Committee and its nominee, upholding the case of the hereditary Mutawalli, Shri Kunhirayan Ali who relied on the Deed of Wakf of 1939. The Wakf Board also held that there was no evidence to show that the bye-laws, Ext. P-6, have been accepted by the Respondent (Kunhirayan Ali). The Wakf Board held that Kunhirayan Ali must be given an opportunity to raise his objection to the bye-laws and for his removal. The Committee was directed to give a hearing. In effect, the election and nomination of Shri K.K.S. Kunhi Thangal was not recognised, by the Wakf Board in Ext. P-1 order dated 16th December 1977. The following direction was given by the Wakf Board in Ext. P-1:

There is no evidence to show that bye-laws Ext. P-6 have been accepted by the Respondent (Kunhirayan Ali). Hence it seems necessary that Respondent is given an opportunity to state his objections, if any, on the various provisions contained in the bye-laws and after hearing all the parties interested in the Wakf, the Board will finalise the bye-laws consistent with the provisions contained in Ext. H-1 (Deed of Wakf) ....

In the result, we hold that the Respondent (Kunhirayan Ali) is the Mutawalli of the Wakf. The second Petitioner (K.K.S. Kunhi Thangal) is not entitled to any Mutawalliship.

The said Ext. F-1 order which was in favour of the hereditary Mutawalli, Kunhirayan Ali, became final inasmuch as O.P. 4141 of 1978 filed challenging the same was dismissed on 4th November 1982, in view of the death of the said Kunhirayan Ali on 30th August 1981. The Committee did not implead the heirs of Kunhirayan Ali (Respondents 3 and 4) and hence the O.P. was dismissed. Ext. P-1 order of the Wakf Board thus became final.

Without giving notice of hearing for the hereditary Mutawallies and without obtaining approval of bye-laws as per Ext. P-1 order of the Wakf Board, the Committee fillet a fresh representation dated 9th November 1981, Ext. P-2, before the Wakf Board to recognise one P. Mohammed as the Committee''s new nominee entitled to be treated as the Mutawalli- While this petition was pending, the daughter and son of Kunhirayan Ali, the hereditary Mutawallies i.e., Respondents 3 and 4, moved the Wakf Board and obtained an order of recognition on the basis of the registered Deed No. 431 of 1981 executed on 17th August 1981 by their father. The Managing Committee then filed O.P. 1053 of 1983 and in W.A. 620 of 1983 arising there from, it was held on 16th October 1985 (Ext. P-3) that the recognition of Respondents 3 and 4 as Mutawallies should be treated as provisional and that Ext- P-2 representation of P. Mohammed, nominated by the Managing Committee be considered by the Wakf Board.

Thereafter, the Wakf Board took up the representation of P. Mohammed (Petition 10 of 1970) and without giving any weight to its earlier order Ext. P-1 dated 16th December 1977 in favour of Kunhirayan Ali (father of Respondents 3 and 4)-passed Ext. P-4 order dated 8th November 1986 and recognised P. Mohammed as the lawful Mutawalli. Questioning the same, Respondents 3 and 4 filed an appeal before the Government which was allowed as per Ext. P-5 order, dated 17th January 1988 mainly holding that the earlier order, Ext. P-1 of the Wakf Board has become final and the Managing Committee failed to give any notice to the hereditary Mutawalli, Kunhirayan Ali, as to the framing of the bye-laws or as to his removal, nor were the bye-laws approved by the Board as directed in Ext- P-l and hence the Wakf Board while passing Ext. P-4 orders could not have ignored the orders in Ext. P-l. The Government, therefore, set aside Ext. P-4 order of the Wakf Board. This resulted in the hereditary Mutawallies, Respondents 3 and 4 succeeding in their case before the Government. The Managing Committee by its Secretary and the Mutawalli nominated by it, P. Mohammed filed the present writ petition, O.P. 4771 of 1988 questioning Ext. P-5 order passed by the Government.

The learned Single Judge dismissed the O.P. because of the death of P. Mohammed. Now, the next nominee of the Managing Committee, Shri Mohammed, s/o Marakkajr has come on record as second Appellant in CMP 4159 of 1992 in this writ appeal. The first Appellant is the Secretary of the Managing Committee.

The main contention for the Appellants is that Ext- P-5 order of the Government allowing the appeal of the hereditary Mutawallies (Respondents 3 and 4) and setting aside Ext- P-4 order of the Wakf Board is wholly without jurisdiction. It is argued that under the Wakf Act, there is no right of appeal to the Government against an order u/s 42. It is pointed out that a general revisional power is given u/s 63B brought by Act 69 of 1984, but it has not come into force. It is, however, argued for the Respondents that even if there is no appellate or revisional powers in the Government, still the Wakf Board''s order, Ext. P-4, being patently contrary to its own earlier order Ext. P-1 (which was binding on it) and inasmuch as no notice was given, as directed in Ext. P-1, to Kunhirayan Ali, nor to Respondents 3 and 4, this is not a fit case for interference under Article 226 of the Constitution of India.

The points for consideration are:

(1) Whether the Government had any power to issue Ext. P-3 order setting aside the order of the Wakf Board, Ext. P-4?

(2) Whether, even if Ext. P-5 is without jurisdiction, this Court is not bound to quash Ext. P-5, on the ground that Ext. P-4 order of the Wakf Board was in itself bad in law?

Point No. 1

So far as the appellate power of the Government is concerned, the only powers of Government are those set out m Section 43(4A) of the Wakf Act, 1954 as it stood before the 1984 amendment. This is so because the amendments in 1984 have not at all been brought into force. Section 43(4A) is applicable only if it is a case of removal.

Admittedly, in Ext. P-1 order, the Wakf Board had earlier held that Kunhirayan Ali was the lawful hereditary Mutawalli, that there was no lawful meeting held to ''remove'' him inasmuch as no notice was given to him before the Constitution and bye-laws were framed or he was removed. The Wakf Board directed that if he was to be removed, notice has to be given to him by the so-called Managing Committee. This was not obviously done after Ext. P-1 order was passed. That order of the Wakf Board has become final. Inspite of that, it was contended that P. Mohammed was nominated fey the Committee after the death of K.K.S. Kunhi Thangal.

Now, Ext. P-4 order of the Wakf Board was passed on Ext. P-2 petition dated 9th November 1981 by the Secretary and P. Mohammed, Mutawalli, the new nominee of the Managing Committee. Ext. P-2 proceeds on the basis that inasmuch as Kunhirayan Ali, the hereditary Mutawalli died on 30th August 1981, there is a vacancy which is to be filled u/s 42. They contended that one "false" Deed of Wakf was marked as Ext. R-l in the petition 10 of 1976 which was the subject-matter of Ext. P-1 decision of the Wakf Board dated 16th December 1977. The petition was not one for ''removal'' of any Mutawalli u/s 43. Therefore, Section 43(4A) of the Act (as it stood before 1984), cannot apply. The petition falls only u/s 42. Before 1984, there was no right of revision. Such a right of revision was confined only after 1984 by, Section 63B. Hence, when Ext. P-5 order was passed by the Government, neither could that order be traced to any appellate power nor to any revisional power. Hence, the Appellant''s contention that Ext. P-5 is without jurisdiction is liable to be accepted. Point No. 1 is held, accordingly, in favour of Appellant''s writ Petitioners.

Point No. 2

But our finding on Point No. 1 cannot conclude the matter if we are to accept the contention of the Respondents under Point No. 2. The point raised for the Respondents is that even if Ext. P-5 order of the Government is without jurisdiction, it need not be quashed if such quashing would result in restoration of the order of the Wakf Board, Ext. P-4, which is equally bad for other reasons.

It is now well settled that if an order of an authority is illegal or without jurisdiction, it need not be quashed by the High Court under Article 226 of the Constitution of India if such action would result in restoration or revival of Anr. order, which is also bad. This proposition was laid down by the Supreme Court in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, at p. 835). In that case, the writ Petitioners sought to quash an order of the Government dated 18th April 1963 purportedly passed u/s 72 of the Andhra Pradesh Panchayat Samithis and Zilla Parishad''s Act, 1959. By that order, the Government reviewed an earlier order dated 7th March 1962 made u/s 62 of the Act and set aside the same on the ground that said order dated 7th March 1962 was passed without considering various facts. The matter related to the location of a Primary Health Centre, When the latter order of the Government dated 18 th April 1963 made u/s 72 was challenged as being without jurisdiction that contention was accepted by the Supreme Court on the ground that Section 72 was not attracted to orders passed u/s 62. The Supreme Court, however, proceeded to see if its earlier order of the Government u/s 62 dated 7th March 1962 was a proper order. The Court came to the conclusion that that order also was bad because it was passed without observing principles of natural justice. The Supreme Court confirmed the judgment of the High Court and refused to quash the latter order of the Government dated 18th April 1963 made u/s 72 even though it was passed without jurisdiction as it would revive the earlier order dated 7th March 1962 which was also bad. In that context, Subba Rao, J. (as he then was) observed (at p. 837):

If the High Court had quashed the said order, it would have restored an illegal order-it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances.

(emphasis supplied)

Following the aforesaid judgment of the Supreme Court arid other cases, Jeevan Reddi, J. (as he then was) observed in M. Padmanabha Iyengar Vs. The Government of Andhra Pradesh and others, at p. 367).

It must also be remembered that the remedy under Article 226 is a discretionary one. The Court is not bound to interfere merely on the establishment of an irregularity or illegality. The Court must further be satisfied that such interference is called for to meet, or to further, the orders of justice. If by interfering in the matter the interests of justice are going to suffer, this Court will withhold its arm: (See Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, and Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, . Having regard to the totality of the circumstances, we do not think that this Court should interfere and quash the inquiry u/s 5A.

(emphasis supplied)

A Five-judge Full Bench of the Rajasthan High Court observed, in Lachhmi Narain and Another Vs. Kalyan and Another, , following Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, at p. 835), as follows:

As we have already pointed out above, the effect of setting aside the impugned order passed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others,

Even in issuing writs of Mandamus, the same principle is followed. If the effect of issuing mandamus is going to be highly prejudicial, as where it would enable trustees to evade the discharge of their duties, a Court of equity will not issue the writ (R. v. Garland (1870) 5 Q.B. 269).

We, therefore, think it necessary to go into the validity of Ext. P-4 order passed by the Wakf Board which; according to the Respondents, is bad and cannot be restored by quashing Ext. P-5 order of the Government.

As pointed out earlier, when the father of the Respondents 3 and 4 (Kunhirayan Ali) was alive, he contested the claim of the Managing Committee and of its nominated Mutawalli before the Wakf Board in 1976. He relied on his hereditary right as per the Wakf Deed of 1939. He contended that the election of the Managing Committee itself was bad as he had no notice of the bye-laws or election and the bye- laws were not approved by the Wakf Board. He also contended that he had no notice before his alleged removal from the Office of Mutawalli and before the nominee of the Managing Committee, Sri K.K.S. Kunhi Thangal was installed. The Wakf Board in its order, Ext. P-1, dated 16th December 1977 accepted all these contentions and rejected the claims of the Managing Committee and of its nominee, the said K.K.S. Kunhi Thangal. The Wakf Board also held that Kunhirayan Ali was not given any notice of the bye-laws and in fact the bye-laws were not approved by the Wakf Board. They directed appropriate notice to Kunhirayan Ali before bye-laws are approved and also the said bye-laws are to be approved by the Board. They expressly held that Kunhirayan Ali was the lawful Mutawalli and that K.K.S. Kunhi Thangal had no legal right to be recognised as lawful Mutawalli. This order of the Wakf Board has become final inasmuch as the Writ Petition, O.P. 4141 of 1978 was dismissed as abated when Kunhirayan Ali died because his legal heirs (Respondents 3 and 4) were not brought on record in the O.P.

Inspite of the fact that the above directions in the O.P. were not complied with by giving notice to Kunhirayan Ali or to his heirs (Respondents 3 and 4) who were hereditary Mutawallies, the Managing Committee and its new nominee P. Mohammed filed a fresh petition before the Wakf Board as per Ext. P-2 dated 9th November 1981 raising same contentions as raised in Ext. P-1 previously and the Board has, while passing Ext- P-4 orders therein, not given any weight to its own declarations and directions in Ext- P-l and held that Kunhirayan Ali is bound by the bye-laws as he "was a signatory" to the resolution. The finding in Ext. P-1 was just the opposite. The bye-laws were not got approved by the Board before nominating P. Mohammed or when, after his death, the present second Appellant, Mohammed, s/o Marakkar was nominated. In fact, it was these aspects that weighed With the Government in passing Ext. P-5 order setting aside Ext. P-4. We are, therefore, of the view that Ext. P-4 order of the Wakf Board is contrary to Ext. P-1 order of the same Board and, therefore, bad.

Following the principles laid down by the Supreme Court in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, at page 835) for exercise of discretion, we hold that this is not a fit case for quashing Ext-P-5 order of the Government even if it was without jurisdiction for, such quashing would restore Ext- P-4 order of the Wakf Board which is bad for other reasons. This is, therefore, not a fit case for exercising discretion to quash Ext. P-5.

In relation to the right of Mutawalliship, if the parties have a right of suit or other remedy, a point which we do not decide-it will be open to them to pursue those remedies.

The Writ Appeal is dismissed. There will be no order as to costs.