Madras High Court
The Hazarat Thable Aalam Badusha vs F.Syed Ameenudeen on 18 April, 2016
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.04.2016
CORAM
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P(MD)Nos.217 of 2016 and 283 of 2016 (NPD)
1.The Hazarat Thable Aalam Badusha
Natharvali, Dargah rep by its
Representatives
i)A.B.D.Badusha
ii)S.Mohammed Mydeen
iii)M.R.Jabarullakhan
iv)Syed Gulam Rasool
Having their office at Nathar Avulia
Dargah, Madurai Road,
Tiruchirapalli
2.A.B.D.Badusha
Public Trustee,
The Bazarat Thable Aalam Badusha
Nathar Avuliya Dargah
office address
Natharvali Dargah
Madurai Road, Trichy-8. .. Petitioners in
both C.R.Ps.,
vs.
1.F.Syed Ameenudeen
2.K.Arab Hussain .. Respondents 1 & 2
in both C.R.Ps.
3.Mohammed Moideen
Public Trustee
The Hazarat Table Aalam Badusha
Nathar Ouliya Dargah
Office address
Natharvali Dargah,
Madurai Road, Trichy-8.
4.M.R.Zabarullah Khan
Public Trustee
The Hazarat Table Aalam Badusha
Nathar Ouliya Dargah
Office address
Natharvali Dargah
Madurai Road, Trichy-8.
5.Syed Gulam Rasool,
Public Trustee
The Hazarat Table Aalam Badusha
Nathar Ouliya Dargah
Office address
Natharvali Dargah
Madurai Road, Trichy-8.
(No relief is sought for against
Respondents 3 to 5 herein and also Since .. Respondents 3 to 5
they were ex-parte in the Wake Tribunal) in both C.R.Ps.
6.The Superintendent of Wakfs
Tamil Nadu Wake Board,
Trichy Central Region,
No.12 A.Keladar Street South,
Trichy-2.
7.The Chief Administrative Officer,
Tamil nadu Wake Board,
No.1, Jaffar searing street, .. Respondents 6 & 7
Vallal Seethakathi Nagar, in both C.R.Ps.
Backside of Custom Office,
Chennai-01.
(No relief is sought for against the Respondents
6th and 7th respondent since they are arrayed
as formal parties in the Wake Tribunal). 1.K.Anandaraman
PRAYER: Civil Revision Petition is filed, under Article 227 of the
Constitution of India, to set aside the order, dated 09.10.2015 made in
W.O.P.Nos.2 & 4 /2012 on the file of the learned Principal Sub Court, (Wake
Tribunal) Tiruchirapalli and allow the above revision petition.
!For Petitioners : Mr.Veerakathiravan
^For R1 & R2 : Mr.M.Siddharthan
For R3 : Mr.P.Saravanakumar
For R4 : Mr.N.Tamilmani
For R6 & R7 : Mr.K.K.Senthil
:C O M M O N ORDER
Both the CRPs are filed challenging the common order, dated 09.10.2015 passed by Wakf Tribunal, Trichirappalli in W.O.P.Nos.2 & 4 of 2012. The issue involed in both the CRPs are interlinked and filed against the common order and hence, both CRPs are disposed of by common order.
2.Facts of the case:-
The respondents 1 & 2 are Pangalies of first petitioner Dargah viz., sharers of residue income of Dargah. The Dargah is administred by Trustees as per the Scheme decree, dated 29.01.1930 made in O.S.No.91 of 1925 by the learned Sub Judge, Trichirapalli. As per the Scheme Decree, the Dargah is administred by five Trustees. One is heriditary Trustee selected for life. One is Pangali Trustee elected for three years from and among Pangalies eligible to vote. A separate voters list of Pangalies is prepared and maintained. Rules for conducting the Election was framed in the year 1952. As per the rules, when one Pangali dies, his legal heirs can make an applications to the Trustees to be recognized as one of the Pangalies. After verification of supporting documents and being satisfied with the claim, a person can be included as Pangalies. The Board of Trustees has to conduct Election of Pangali trustee. The board can authorise any one of the Trustees to conduct Election as Election officer. The other three Trustees are called Public Trustees and are to be selected by the Wakf board from and among members of Muslim community of Trichirappalli. All the five trustess must elect one among them as executive trustee for one year, who will manage day to day affairs of the Darga.
3. Public Trustees were lastly appointed in the year 2010. No Pangali Trustee was elected and no Executive Trustee was elected. While so, the second petitioner claiming to be Executive Trustee and Election Officer issued a Election Notification, dated 13.02.2012 for Election of Pangali trustee. The respondents 1 & 2 filed W.O.P.No.2/12 challenging the said notification on the following grounds.
i)Second petitioner is not an executive trustee and he was not appointed as Election officer by board of Trustees.
ii)The voters list of pangalies were not updated. Father of the first respondent who was a Pangali died on 12.12.2011. The first respondent gave an application on 09.01.2012 to include him as Pangali. The petitioners failed to consider the application and failed to include him as Pangali.
iii)Many dead persons were shown as Pangalies and many eligible persons were not included in the voters list.
iv)Second petitioner removed the fourth respondent in WOP No.2/2012 from the Trusteeship. One trustee has no power to remove another trustee.
4.The respondents 1 and 2 have also filed I.A.No.85/2012 for temporary injunction pending WOP No.2/12. The learned Judge granted an interim injunction restraining the second petitioner from conducting Election for Pangali trustee. The respondents 1 and 2 filed WOP No.4/2012 for appointment of Advocate Commissioner to conduct Election of Pangali Trustee on the ground that Second petitioner is trying to conduct Election without following the rules of Election framed in the year 1952. Second petitioner is falsely claiming to be an Executive Trustee and Election Officer and there is a dispute among the existing Trustees.
5.First and second petitioners filed counter statement in WOP.No.2/12 and opposed the same. According to the petitioners 1 & 2, as per the Scheme Decree five Trustees are to manage the affrairs of Dargah and one among them has to be elected as Executive Trustee. Once a trustee or executive trustee was elected, he will continue to be in the said capacity till another person is elected to that post. Second petitioner was elected as Executive Trustee. As no other person was appointed as public trustee and elected as Executive Trustee, the second petitioner continued to be Executive Trustee. As per the instructions of seventh respondent Wakf Board, second petitioner has started Election process by issuing Election notification, dated 12.02.2012. After issue of Election notification, WOP is not maintainable. There is no dispute among the Trustees. Board of Trustees have passed resolutions to conduct Election for Pangali Trustee and second petitioner was appointed as Election Officer. First respondent did not inform petitioners about the death of his father and did not apply for inclusion of himself as a Pangali. The aplications submitted up to September, 2011 for inclusion in the Pangali list were considered and eligible persons were included as Pangalies. The respondents 1 & 2 have made vague and strange allegations and have filed a petition in individual capacity and not in representative capacity.
6.The fourth respondent in the counter stated that the Public Trustees were appointed by seventh respondent in the year 2010 including the fourth respondent. This Court, directed the seventh respondent to appoint Public Trustees and Trustees to elect a Pangali Trustee and then only to elect a Executive Trustee. The second petitioner and other Trustees did not elect a Pangali trustee and Executive Trustee. None of the present Trustee was elected as Executive Trustee. Second petitioner tried to open the hundiels of Darga. Fourth respondent objected to the same. In view of the same, second petitioner removed the fourth respondent from the post of Public Trustee. A Public Trustee has no power to remove another public trustee. The second petitioner is guilty of mismangement and cannot act as Executive Trustee and conduct Election of Pangali trustee. No meeting of board of Trustees was conducted and no resolution was passed to conduct Pangali Election and second petitioner was not appointed as Election officer. The Election notification issued by second petitioner is invalid
7.Seventh respondent in the counter stated that second petitioner and respondents 3 and 4 were appointed as Public Trustees in the year 2010 for a period of three years. The second petitioner and respondents have to conduct Election for Pangali Trustee and after such Election only an Executive Trustee can be elected.
8.Before the Tribunal first respondent was examined as P.W.1 and marked five documents as Ex.A1 to Ex.A5 in W.O.P.No.2 of 2012 and another five documents were marked as Ex.A1 to Ex.A5 in W.O.P.No.4 of 2012. On behalf of petitioners 1 & 2 one Jakir Hussain Manager of Dargah was examined as D.W.1 and five documents Ex.B1 to Ex.B5 were marked.
9.The learned Judge considering the pleadings, evidence oral and documentary and arguments of the learned counsel for the parties, passed common order, dated 09.10.2015 as follows:
a)Declared the notification, dated 13.02.2012 issued by second petitioner in his capacity as Executive Trustee/Election Officer is beyond his power, not valid and void.
b)Dismissed the relief for permanent injunction restraining the second petitioner from conducting the Election of Pangali trustee.
c)Allowed WOP No.4/12 by appointing T.S.Madhani Advocate as Commissioner to conduct Election of Pangali trustee as per the schedule mentioned therein. (Subsequently, this commissioner was changed)
10.Against the said common order, the petitioners have filed the present CRPs. Both the CRPs are heard together.
11. The learned counsel for the petitioner contended that:-
i)The order of the learned Judge declaring Election notification dated 13.02.2012 as null and void is contrary to law and opposed the scheme decree.
ii)On 20.01.2010, the seventh respondent appointed petitioner and respondents 3 and 4 as Public Trustees with a direction to elect Pangali trustee. The Election notification dated 13.02.2012 was issued after preparation of valid voters list and as per the scheme decree. There is no irregularity or illegality. The learned Judge without considering these facts in a mechanical manner allowed the petition filed by the respondents.
iii)From among the three public Trustees appointed second petitioner was elected as executive trustee as per the resolution of board of Trustees and instructions of the 7th respondent, second petitioner issued Election notification dated 13.02.2012 which is valid and legal. The order allowing the WOP No.2/12 is illegal and unsustainable in law.
iv)Respondents 1 & 2 while WOP No.2/12 was pending filed WOP No.4/12 for appointment of Advocate Commissioner to conduct the Election of Pangali trustee. The learned Judge without giving reasonable opportunities to the petitioners, allowed the WOP.4/2012. The learned Judge failed to follow the procedure laid down in Order 26 Rule 1 CPC for appointment of Advocate Commissioner.
v)The learned Judge failed to see that second petitioner is validly appointed as Chief Managing Trustee and hence, the competent to conduct the Election.
vi) WOP No.2/12 is not maintainable in law and on facts as after issue of Election notification, Election process cannot be challenged.
12.The learned counsel for the petitioners relied on the following Judgments:-
i)2006(10) Supreme Court Cases 696 M.P.Wakf Board vs. Subhan Shah (dead) by Lrs. And others ?28.The Tribunal had been constituted for the purposes mentioned in Section 83 of the 1995 Act. It is an adjudicatory body. Its decision is final and binding but then it could not usrup the jurisdiction of the Board. Our attention has not been drawn to any provision which empowers the Tribunal to frame a scheme. In absence of any power vested in the Tribunal, the Tribunal ought to have left the said function to the Board which is statutorily empowered therefor. Where a statue creates different authorities to exercise their espective functions thereunder, each of such authority must exercise the functions within the four corners of the statute.
ii) Judgment of Division Bench dated 19.06.2014 in W.P.(MD)No.15524 of 2012 and Civil Revision Petitions.
iii) 2007(6) MLJ 432 A.K.Khalifulla and others vs. S.A.Gulam Rasool and another ?26. Under the old enactment of 1954, there was neither any judicial Tribunal constituted nor power was given to the Wakf Board to modify the Scheme made by the Court of law, either before or after the commencement of 1995 Act as found in the explanation to the proviso provided under Section
32. Further sub-sections (d) and (g) of Section 32, the Wakf Board has also been given powers to appoing Mutawallis for various wakfs and frame schemes.
Though the judgment rendered by the Division Bench, presided over by the Honourable Chief Justice Markandey Katju (as he then was), dealt with a case of the petitioner approaching a writ Court, yet, the interpretation given to 1995 Act in the case relating to Salam Khan v. Tamil Nadu Wakf Board and Others (supra) case will apply to his case in all its four corners. Therefore, there is no substance in the arguments of the revision petitioners. Hence, the Civil Revision Petition shall stand dismissed. Consequently, connected CMP is also dismissed. No costs.
iv)2011 Writ L.R. 1008 (Mohamed Mujeebur Rahman v. The State of Tamil Nadu & others ?It is no doubt true that the judicial review in the form of public law remedy is availbale to a large extent under Article 32 of the Constitution of India to the Supreme Court and under Article 226 of the Constitution of India to the High Courts, but such power cnnot be made applicable on the facts and circumstances of the present case. It has to be reiterated that the Wakf Board is the authority under Act 43 of 1995 to enforce the Wakfs by way of administration and such administration shall be done by the Wakf Board only as per the terms of the wakf. On the facts of the present case, the wakf- Fazilathunnissa Begun Sahiba Mosque Endowment was formed on the basis of the Will executed on 30.1.1877, based on which the scheme decree was passed on 10.2.1941. It is nobody's case that the scheme decree is against the contents of the Will. Therefore, the Will and the scheme decree are one and the same. By virtue of Explanation to Section 32(1) of Act 43 of 1995, the said decree becomes a wakf and it is also admitted to be a wakf because it is nobody's case that it is not a wakf and therefore, it is the Wakf Board which has to enforce the contents of the scheme decree in true spirit.?
v) Order dated 10.02.2011 made in C.R.PNPD.No.2894 of 2009 ?20.In such circumstances, the court below could not have numbered the petition and the petition ought to have been rejected at threshold. Merely because, it was numbered, the petitioner cannot claim any subsisting right after the expiry of his term of office. Learned counsel for the petitioner has not pointed out anything to show that the Wakf Board had acted anything contrary to the scheme decree. When there is no specific clause in the scheme decree to conduct election only through an Advocate Commissioner, it cannot be a matter of right to the petitioner to seek a direction to appoint an advocate commissioner to conduct the election.?
vi) 2000-3-L.W. 787 R.Satyanarayana Rao and 3 others vs. M.K.Manoharan @ K.Manoharan and others ?13.Learned counsel for petitioners also brought to my notice a judgment reported in 1996(1) CTC 472 (S.Anthonidoss and another v.Sabesthiyan and another) wherein Raju, J., as His Lordship then was, has held that a Commissioner is not to be appointed for mere asking.?
vii) 1996(1) CTC 472 S.Anthonidoss & another vs. Sabesthiyan & another ?7.The other submission of the learned counsel that the other side will not be prejudiced by the appointment of an Advocate-Commissioner and that it will help to ensue that no construction is made to the detriment of the rights of the plaintiffs, is not a tenable one. The question of appointment of a Commissioner does not depend upon merely whether any prejudice will be caused to the other side or not. Instead, there should be sufficient basis and justification as also an effective need and an appointment of Commissioner cannot be sought for or obtained as a matter of course and that too to achieve an ulterior object or motive.....?
viii) 2006-4-L.W. 522 Muthusamy Gounder vs. Mylsamy Gounder ?The appointment of an Advocate Commissioner is only to aid the Court to assess the evidence let in by both parties with respect to the dispute. In the instant case, the Court below while deciding the application for appointment of an Advocate Commissioner has stated that merely because and Advocate Commissioner was not appointed on the earlier occasion, the relief of injunction was not granted. The Lower Court has gone beyond the scope of the powers under Order 26 Rule 9 and has exceeded in its jurisdiction. Since the Revenue Officials have already demarcated the area and fixed stones dividing the property of the petitioner and the respondent, no purpose will be served in inspecting the property with the help of a Surveyor to note down the physical features in the suit for permanent injunction. The Court shall not appoint an Advocate Commissioner in a mechanical manner without considering the need for it, overlooking the facts pleaded by the parties.?
ix)2010(4) CTC 516 The Secretary, Tamil Nadu Wakf Board, Santhome High Road, Madras-600 004 vs. 1.Kancheepuram Oili Mohamed Pettai labbai Jumma Masjid, and others.
?28.In regard to the plead of the Appellant/10th Defendant that issurance of notice to the Appellant/Wakf Board is a condition precent to the filing of the suit, this Court points out that new Section 89 (old Section
56) of the Wakf Act, 1995, has not undergone any cange and the notice under Section 56 (new Section 89) is analogous to Section 80 of the Civil Procedure Code and it prohibits the filing of any Suit against the Wakf Board in respect any Act purporting to be done by it in pursuance of the Act or the Rules framed thereunder unless, the proper notice is served on the Wakf Board before filing of the Suit. Defect of want of notice goes to the root of the matter and it cannot be viewed likely.
29.In the instant case, though as against the Appellant/10th Defendant no relief is claimed as per the averment made in the plaint yet, it is a necessary party to the Suit as opined by this Court. Eventhough as against the Appellant/10th Defendant no relief is claimed by the 1st Respondent/Plaintiff in the Suit since the Appellant/10th Defendant has General Superintendent and control of the 1st Respondent/Plaintiff's Mosque and inasmuch as the 1st Respondent/Plaintiff is represented by Muthavalli who can be removed from his office as per the provisions of the Wakf Act, 1995, and since he has to carry out the directions of the Board and to perform other duties enjoined under the Act, this Court is of the considered view that pre-suit notice as required under Section 89 (old Section 56) of the Act is very much necessary/mandatory and in the instant case, the Plaintiff has not issued the pre-suit notice as per Section 89 (old Section 56) of the Act and this material defect affects the very foundation of the filing of the Suit and the substantial questions of law 2 and 3 are answered against the 1st Respondent/Plaintiff.?
x) 2002 (5) CTC 94 M.S.Abdul Hameed vs. S.M.Sheik Mohammed and 4 others ?20.It cannot also be argued that Section 89 applies not to the Tribunal but only to the Civil Court wherein suits are instituted since Section 83 which deals with constitution of Tribunals etc. Is specific. In sub-section 5 of Section 83 it is laid down: ? The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order?. The language of the above Section is plain and simple and it does not need any explanation at all so as to arrive at a different conclusion from what is meant by the language of the Section and therefor ethere is no room to arrive at the conclusion that the mandatory provision of law under Section 89 of the Wakf Act would apply only to Civil Courts and not to the Tribunals.
21.In the light of the above legal position clarified, no judgment rendered in the past much less those which are cited on the part of the learned counsel for the petitioner equating Section 89 of the Wakf Act with that of Section 80 of the C.P.C. Under pretext that Section 89 of the Wakf Act is in pari materia with Section 80 of the C.P.C. Cannot come to the rescue of the petitioner herein. On the contrary the one Judgment cited on the part of the respondents reported in A.I.R. 1982 Mad. 202 is pointed to the facts and circumstances of the case in hand and telling to the effect that cases where suits have been instituted without the issue of the notice in accordance with Section 56 as in the instant case are not maintainable.?
13.Per contra, the learned counsel for the respondents 1 and 2 submitted that respondents 1 and 2 have proved that second petitioner has issued the Election notification without any authority and contrary to scheme decree and rules framed thereunder. The order of the learned Judge is valid and legal. As per the orders of this Court, Advocate Commissioner appointed had completed the Election process in full and has not announced result as directed by this Court.
14.The learned counsel for the fourth respondent reiterated the averments made in the counter affidavit and submitted that the respondents 6 an d 7 Wakf Board has issued a show cause notice, dated 01.02.2012 to the second petitioner and respondents 3,4, and 5. The fourth respondent has submitted his explanation.
15.The learned counsel for the Wakf Board respondents 6 & 7 reiterated the averments made in the counter affidavit and submitted that Wakf Board has initiated proceedings for removal of all the three public Trustees for the mismanagement of affairs of Darga.
The learned counsel for the respondents 1 & 2 relied on the following judgments:-
i) 2011(6) CTC 397 Mohamed Mujeebur Rahman vs. The State of Tamil Nadu, rep. By its Secretary and others ?33. After referring to plethora of decisions about the jurisdiction of the Civil Court to interfere in the matters relating to the Wakf, this Court having held that Act 43 of 1995 is a self-contained code and that any dispute relating to the Wakf has to be decided by the Tribunal constituted under Act 43 of 1995 and there has been a specific bar of jurisdiction of the Civil Court under Section 85 of Act 43 of 1995 relating to any Wakf or Wakf property or any other matter which is required to be decided by the Tribunal and having found that even though under the Wakf (Amendment) Act, 1984 there was no Nofitication excluding Section 92 of the Code of Civil Procedure, subsequently under Act 43 of 1995, in Explanation to Section 32(1), it has been explicity made clear that even a scheme made by the Civil Court is included as a Wakf and that the settlement of scheme within the purview of the Wakf Board, has allos the Revision by setting aside the Wakf Board to make necessary advertisement for the purpose of electing trustees and ordered that till such decision is taken status quo shall be maintained.?
ii) 2008(2) CTC 492 Salem Mohammedpura Parimala Sunnath Jammth Masjid Committee rep. By its Muthuvalli vs. P.A.Kareem and another ?50.Courts have consistently held that a statue is an edict of the legislature and the conventional way of interpreting or construing a statute is to seek the intention of the legislature. While interpreting a provision, the Court has to give a purposive construction, so as to achieve the object behind the Act. Reading of the Act in entirety makes it clear that the intention of the Act is to provide a machinery to supervise and maintain the Wakf and its properties, and it is not intended to take away the powers of the Civil Court, where no remedy is provided under the Wakf Act?.
Iii) 2011(1) CTC 636 Board of Wakf, West Bengal and another vs. Anis Fatma Begum & another ?14.Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words ?any dispute, question or other matters relating to a Wakf or Wakf property? are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r) then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.?
iv)2005(1) M.L.J 646 I.Salam Khan v. The Tamil Nadu Wakf Board, Chennai represented by its Chairman, and others ?10.We may, further, clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he is aggrieved. It may be mentioned that Secs. 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Sec.83(2) refers to the orders passed under the Act, but, in our opinion, Secs. 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a wakf or wakf property, as the plain language of Secs. 83(1) and 84 indicate. We are further of the opinion that even if an order has been passed prior to the commencement of the Wakf Act, 1995, or a dispute, question or matter has arisen before the commencement of the said Act, the Wakf Tribunal can adjudicate such issues or questions or the correctness of such an order, because the intention of Parliament in enacting Wakf Act, 1995 is that any dispute or matter pertaining to Wakf should go before the Wakf Tribunal.?
v) 2010(3) Supreme Court Cases 62 Syed Mohideen and another vs. Ramanathapura Peria Mogallam Jamath and others ?5. We agree with the aforesaid observations of the High Court and see no reason to interfere with the same. We, however, may make it clear that in terms of Section 83(5) of the Wakf Act, 1995 the Wakf Tribunal is deemed to be a civil Court and has the same powers as are exercised by the civil Court under the Code of Civil Procedure, 1908 while trying a suit or executing a decree or order.
6.The civil Courts are in turn competent to issue injunctions in terms of Order 39 Rules 1 and 2 and Section 151 CPC. Similar orders can, therefore, be passed by the Wakf Tribunal also in suits that are legally triable by it if a case for grant of such injunction or direction is made out by the party concerned. These observations shall not, however, be understood to mean that we are expressing any opinion on whether a case for grant of an injunction had been made out in the matter at hand. All that we wish to clarify is that if the Wakf Tribunal upon consideration of all the relevant facts and circumstances comes to the conclusion that a case for grant of interim injunction has been made out it shall be free to issue any such injunction.?
vi) 2005(2) L.W. 615 Mukram Sherif vs. Moinudeen Sheriff and others.
?It has been held by a Division Bench of this Court, to which one of us (Markandey Katju, Chief Justice) was a party, in W.A.No.2344 of 2000 and W.P.Nos.12710 and 15945 of 2000 (Salam Khan v. The Tamil Nadu Wakf Board), decided on 31.1.2005, reported in 2005-1 L.W. 676 that all disputes relating to wakf should be filed in the first instance before the Wakf Tribunal, constituted under Sec.83 of the Wakf Act, 1995 and the writ petitions should not be entertained directly by this Court under Art.226 of the Constitution as there is alternative remedy. Against the aforesaid judgment of the Division Bench of this Court, as Special Leave Petition, viz., S.L.P.(C) No.4156 of 2005, was filed in the Supreme Court and the said Special Leave Petition was dismissed.?
7. 89 L.W. Syed Peer Shah Mohideen Kadiri v. Tamil Nadu Wakf Board by its Secretary
4....It is, therefore, clear when that scheme has been framed by a Civil Court prior to the passing of the Wakf Act, then it shall prevail and shall be taken as the basis by the Wakf Board for administering a particular Wakf for which that scheme has been framed. ....?
16.The points for consideration are:-
i)whether second petitioner is authorised as Election Officer to conduct Election of Pangali Trustee.
ii)Whether Election notification dated 13.02.2012 issued by second petitioner is as per Scheme Decree dated 29.01.1930 made in O.S.No.91 of 1925 and rules framed by Board of Trustees in the year 1952.
iii) Whether the learned Judge considered and followed provisions of Order 26 Rule 1 CPC.
Points 1 & 2 The parties to the proceedings admit the following:-
a) The first petitioner Dargah has to be managed by five trustees to be appointed as per Scheme Decree, dated 29.01.1930 made in O.S.No.91 of 1925.
b) Rules are framed in the year 1952 for the management of Dargah as well as Election of Trustees. Three Public Trustees are to be appointed by Wakf Board for three years from among the members of Muslim Community of Trichirapalli.
One heriditary trustee is to be selected for life as per the provisions of Scheme Decree. One Pangali Trustee to be elected from many Pangalies listed as eligible voters.
c) An Executive Trustee can be selected only after installation of all the five Trustees from among five Trustees.
Disputed Facts:-
The second petitioner claims that once a Trustee is appointed and an Executive Trustee is selected he will continue as such till his resignation is accepted or another person is appointed in his place. On the other hand, respondents contended that an Executive Trustee is selected only for one year and unless he is again selected as Executive Trustee, he ceases to be Executive Trustee. The relevant Rules in this regard is Rule, ? Scheme 10:- A Trustee shall be considered to hold office till the resignation is accepted by the Court or till a successor is appointed in his place, eventhough his term has expired by efflux of time.?
17. A reading of this Rule shows that untill another person is appointed as Trustee or Executive Trustee a present incumpent will continue to hold Office. It is not disputed that second petitioner was elected as Executive Trustee for one year and subsequently no other person was selected as Executive Trustee. In the circumstances, the finding of the learned Judge that Second Petitioner was Executive Trustee when the impugned Election Notification was issued by him is in proper appreciation of Rule referred to above.
18. In the W.O.Ps as well as in these CRPs, whether second petitioner is Executive Trustee is not the issue. The issue is whether Board of Trustees passed resolutions to conduct Election of Pangali Trustee and whether second petitioner was appointed as Election Officer. It is the contention of respondents 1 & 2 that the second petitioner was not appointed as Election Officer and therefore, the Election Notification issued by him was invalid. The fourth respondent, one of the Public Trustees of first petitioner in his counter stated that no meeting of Trustees was held and petitioner was not appointed as Election Officer. The respondents 6 and 7 Wakf Board also took the same stand. The first respondent as P.W.1 deposed to this effect. Second petitioner, who categorically stated in the counter that Board of Trustees met and by resolution appointed him as Election Officer, did not produce copy of the resolution and did not deposed before the Tribunal. The Manager of the first petitioner one Jakir Hussain was examined on behalf of petitioners 1 & 2 as D.W.1. In his evidence, he admitted that Board of Trustees of first petitioner did not pass any resolution appointing second petitioner as Election Officer.
19.Secondly, respondents 1 & 2 have alleged that Voters list of Pangalies were not updated. Many dead persons and un-eligible persons are shown as voters and many eligible persons are not included in the list. The respondent's father was admittedly a Pangali. He died on 12.12.2011. The first respondent gave an application on 09.01.2012 to include him as Pangali and petitioners 1 & 2 did not consider the same. On the other hand, second petitioner contended that Pangali voters list was updated and all the applications received up to September 2011 was considered and all the eligible persons were included in the voters list. The respondents did not give any application for including him as voter and hence, question not considering his application does not arise. On the other hand, D.W.1 Manager of first petitioner admitted in his evidence as D.W.1 that voters list of Pangalies was not up-dated.
20.Thirdly, as per the Rules framed in the year 1952 both male and female Muslims can be Pangalies and as Pangalies are eligible to contest for the post of Pangali Trustee and also eligible to vote. Second petitioner in the Election Notification did not mentioned that both male and female Pangalies are eligible to contest and vote. Second petitioner is not an Election Officer and voters list of Pangalies was not up-dated before issuing the Election Notification. The learned Judge considered these facts in proper perspective and by giving cogent and valid reasons held that Election Notification, dated 13.02.2012 is invalid and void. There is no infirmity, irregularity or illegality warranting interference by this Court as respondents have proved that voters list of Pangalies was not up-dated and second petitioner was not appointed by Board of Trustees as Election Officer. Points 1 & 2 are answered accordingly.
Points No:3.
The learned Judge by the common Order, dated 09.10.2015 appointed Mr.Madhani Advocate as Commissioner to conduct of Election of Pangali Trustee as per the directions in W.O.P.No.4/2012. The learned counsel for the petitioners contended that the petitioners were not given reasonable opportunity before an Advocate was appointed as Commissioner to conduct Election. The learned counsel also contended that the learned Judge failed to follow procedure as laid down in Order 26 Rule 1 CPC. The learned Judge in a mechanical manner appointed an Advocate Commissioner. The learned counsel relied on the following judgements in support of his contentions.
i) Judgment of Division Bench dated 19.06.2014 in W.P.(MD)No.15524 of 2012 and Civil Revision Petitions.
ii) 2007(6) MLJ 432 A.K.Khalifulla and others vs. S.A.Gulam Rasool and another
iii)2006(10) Supreme Court Cases 696 M.P.Wakf Board vs. Subhan Shah (dead) by Lrs. And others
21. Per contra, the learned counsel for the respondents 1 & 2 submitted that both WOP No.2 & 4/2012 are heard together and therefore, the contention of the petitioners that they were not given proper opportunity, is baseless and untenable. Second petitioner is acting against the interest of Dargah and is not following the Rules and Regulations. The learned Judge has rightly appointed an Advocate as Commissioner to conduct Election. The Civil Revision Petitions are devoid of merits and prayed for dismissal of the Civil Revision Petitions.
22.From the materials on record, it is seen that a Joint trial was held in W.O.P.Nos.2 & 4 /2012 and common order was passed. The petitioners except stating that no proper opportunity was given to them have not stated as to what opportunity was not given to them. Similarly, their contention that learned Judge without following the procedure, mechanically appointed an Advocate Commissioner is untenable. The learned Judge after considering eloborately all the facts and circumstances and materials on record held that second petitioner is not entitled to conduct the Election of Pangali Trustee. Considering the need of proper management of first petitioner Dargah, the learned Judge has appointed an Advocate as Commissioner to conduct the Election. The learned Judge has given specific directions to the Advocate Commissioner for proper conduct of Election. It is pertinent to note that the term of the Public Trustees is only three years. Second petitioner and respondents 3 & 4 were appointed by Wakf Board in the year 2010. Their term expired in the year 2013 itself. It has been stated that Wakf Board has issued the notice to remove the Public Trustees. Wakf Board in the counter stated that do not have any objection for appointment of Advocate Commissioner to conduct the election. In the circumstances, the order of the learned Judge appointing an Advocate Commissioner to conduct Election to elect Pangali Trustee is valid and does not suffer from any infirmity.
23. In the result, both the Civil Revision Petitions are dismissed as devoid of merits. Pending Civil Revision Petitions, Advocate Commissioner was permitted to conduct the Pangali Trustee Election and was directed not to announce the result. In view of the dismissal of the Civil Revision Petitions, the Advocate Commissioner is directed to announce the result of Election and Wakf Board is directed to recognize the elected Pangali Trustee as per the procedure.
24. In view of the fact that term of Public Trustees had expired without prejudice to the show cause notice issued to present Public Trustees, Wakf Board is directed to initiate proceedings for appointment of Public Trustees as well as Heriditary Trustee. Wakf Board is directed to complete this process on or before 31.12.2016. No costs. Consequently, connected miscellaneous petitions are also dismissed.
To The Principal Sub Court, (Wakf Tribunal) Tiruchirapalli.