Madras High Court
Hajee Dr. Syed Latheefuddin Shah (Died) ... vs Tamil Nadu Wakf Board And Ors. on 26 April, 2000
Equivalent citations: AIR2000MAD412, (2000)IIMLJ728, AIR 2000 MADRAS 412, (2000) 2 MAD LJ 728
ORDER T. Meenakumari, J.
1. The writ petition is one for issuance of a writ of Certiorarified Mandamus calling for the records of the first respondent relating to item No. 9/90 RC-629/C1/83-CGT dated 8-1-1992 and quash the same and consequently forbearing the second respondent from interfering with the petitioner, Muthavalli of private Wakf of Syed Badurddin Saheed Durgah. Pallavaram in Chingleput District.
2. By the impugned proceedings the Tamil Nadu Wakf Board has decided that pending the appointment of suitable officer as a Special Officer, a team of Board Officials including the Superintendent of Wakfs, Northern Zone, Wakf Inspector, Chengalpattu (East) shall be deputed to the petition Wakf to assume the management by such officer as is designated by the Secretary within 48 hours of this order etc. and it has also been stated in the impugned proceedings that the Special Officer shall prepare a voters' list of the Muslim Male members of 21 years of age and above for purposes of holding elections to constitute a managing committee along with a Muthavalli after observing all legal formalities connected with the election within a period of three years from this date. The above proceedings have been questioned by the petitioner herein.
3. The main contention on behalf of the petitioners is that in the year 1943 this Court has recognised the Wakf as a private wakf and declared all rights of one late Syed Ahamed to the office of the Mulhavalliship. From that time onwards the said Syed Ahmed was the Muthavalli of the, Wakf Board. The above decision has been rendered in Appeal No. 469 of 1941 dated 27-4-1943.
4. Learned counsel for the petitioner has argued, relying upon the above judgment, that by the order dated 27-4-1943 in the above appeal, the Division Bench of this Court has recognised the rights of one Syed Ahamed as Muthavalli in pursuance of renouncement of the office of the trusteeship at the disputed Durgah by the respondent therein. Syed Ahamed was forced to file a suit and the respondent therein came to cancel the renouncement. Hut the Division Bench of this Court did not agree with the contentions of the respondents and decree the suit as prayed for. The renouncement was made in favour of the appellant therein that is, Syed Ahamed and that has been recorded by the Division Bench of this Court in Appeal No. 469 of 1941 dated 27-4-1943. It has been averred in the affidavit that in the year 1964 the said Syed Ahamed, by a registered deed appointed the petitioner herein as Muthavalli of the Durgah of Badruddin Saheed of 158, Zamin Pallavaram and Trustee of Hasinapuram village and his right as Muthavalli was recognised by the Wakf Board. On an application made by the third respondent herein, the petitioner herein was removed from Mulhavalliship by the Wakf Board by the impugned proceedings dated 8-1-1992.
4A. After filing of the writ petition the sole petitioner seems to have died and his wife and son are brought on records as legal representatives of the deceased sole petitioner by the order of this Court dated 2-7-1993 in W.M.P. No. 10519 of 1993.
5. The main contention raised by learned counsel for t he petitioners was that the first petitioner was not served any notice before passing of the impugned order dated 8-1-1992. There was no proper opportunity given to the petitioner thereby violating the principles of natural justice.
6. It was further argued by learned counsel for the petitioners that on suo motu enquiry was initiated against the first petitioner herein by the Chairman of the Wakf Board and thereafter impugned orders have been passed on 8-1-1992 removing the first petitioner as the Muthavalli and no notice was served on the first petitioner before conducting the suo motu enquiry. It is contended by learned counsel for the petitioners that the action of the respondents is in violation of the principles of natural justice.
7. Learned counsel further argued that survey No. 344/1 has been shown as Buddu Shaheed alias Badruddin Shaheid Durgah in Pallavaram village as one of the items in the list of Wakf existing in Chingleput District published by the Government. Further, the land in S. No. 334/2 was shown as Durgah Poromboke in Government records.
8. In the counter-affidavit the respondents have stated that the Wakf is having properties in S. Nos. 309, 334 / 1, 334/2 and as per the Revenue records under S. No. 301, the total extent of lands is 0.66 cents and S. No. 334/1 7.79 acres and S. No. 334/2 2.88 acres and the total extent of lands under all the three S. Nos. is 11.33 acres of lands. It has been stated that the Nawab of Arcot dedicated the lands to the Durgah of the Saint I lajaarath Syed Badmddin Shaheed about 300 years ago, and the Durgah is the exclusive owner of the abovesaid lands. It is further contended that the rule of succession as per the pro forma is hereditary according to the custom and usage. It has been stated in the counter-affidavit that an application was made by the third respondent under Wakf Act on the ground of mismanagement of the properties of the Wakf and enquiry has been conducted, the first petitioner was served with the notice calling for an explanation and thereafter the impugned orders have been passed.
9. It is also stated in the counter that the Wakf Board has filed the suit O.S. No. 903 of 1969 before the learned District Munsif, Potmamallee for recovery of the Wakf properties and the same was dismissed in the year 1972 for default and the first petitioner is not a party to the said suit and he cannot rely on the dismissal ofthe abovesaid suit for his claim that the abovesaid Wakf is a private Wakf. Further, it is contended that this Court has held in W.P. No. 3024 of 1990 dated 12-3-1990, filed by the first petitioner herein that the Wakf Board is having jurisdiction to cause an enquiry to be made in the administration of the Wakf by the muthavalli. The counter-affidavit further says that sufficient opportunity was given to the first petitioner to put forth his case and therefore the allegation of non furnishing of the report of the Superintendent of Wakfs is untenable and unsustainable. Further, the impugned order was passed on 8-1-1992 and the Special Officer has taken charge of the office of Muthavalli on ll-]-1992.
10. Both the counsel have advanced their arguments and the counsel for the petitioner has argued before this Court that before initiation of the enquiry proceedings, no notice has been served on the petitioner.
11. Learned counsel for the respondents has argued that even assuming that there is no notice served, the 1st petitioner was represented by the counsel. Learned counsel for the petitioner further argued that even though the first petitioner has been represented by the counsel, the respondents cannot waive the issuance of notice to him, violating the principles of natural justice.
12. Learned counsel appearing for respondents 1 and 2 has produced some ofthe records on direction by this Court. A perusal of the records show that on 20-1-1990 the Wakf Board has taken a decision to serve notice on Janab Syed Latheefuddin Shah and Ghouse Basha. The records also further show that on 4-2-1990 an attempt has been made to serve notice on Janab M. Ghouse Basha and the endorsement says as follows:
"He has reported that Janab M. Ghouse Basha, the alienee of the above Wakf has refused to receive the Board Meeting notice delivered on him on 2-2-1990 and stated that he has no way connected with the Tamil Nadu Wakf Board."
There is no mentioning about the service of notice on the first petitioner. The record further says that item relating to the Wakf Board was numbered as 9/90 in RC. 629/ C1 /83/CGT, resolution dated 6-2-1990 and the resolution has been endorsed as follows:
"This item was taken up for consideration of the Board in the presence of Janab. Ikram Mohamed counsel for the petitioner and Janab. M.A. Farooki Sahib counsel for the respondent. Both the petitioner and respondents are called present. Heard both the parties. Orders reserved."
Further endorsement dated 29-12-1991 reveals that the office of the Wakf Board was directed to issue notices to the parties informing them about the pronouncement of the orders on 8-1-1992 and accordingly the impugned order was passed on 8-1-1992. Further perusal of the records would reveal that no attempts have been made to serve notice as per the endorsement dated 20-1-1990 on the deceased first petitioner that is Dr. Syed Latheefuddin Shah. It reveals that an attempt has been made to serve notice on Janab M. Ghouse Basha who refused to take notice. But there is no attempt on the part of the Wakf Board to serve notice either in person or by any mode on the petitioner. The other point remains to be considered in this writ petition is even if the petitioner has been represented by a counsel whether the petitioner has the entitlement of the notice or not. In this context it has to be seen that even though the first petitioner is represented by the counsel, the records reveal that there is no service of proper notice either on the suo motu enquiry or on the complaint against the first petitioner herein. In Chapman v. Michaelson reported in Chancery Division, (1908) LR 612 at page 622 it has been held as follows :
"It is Important to note in this context that conduct by a person will not be taken to amount to the waiver of his statutory right unless it appears that he was aware of all the facts establishing the right. 'Waiver' Implies Intentional relinqulshment of a known right, or the voluntary relinqulshment or abandonment of a known existing legal right, or conduct that warrants an inference of the relinquishment of a known right of privilege intended for the benefit of an individual. Waiver is contractual in nature and is an agreement to release or not to assert a right. To constitute waiver, a party renouncing legal rights must have been in a position 'to appreciate what his true legal rights were'."
The above proposition has been held in number of cases reported in :
(1) Waman Shriniwas Kini v. Ratilal Bhagawandas & Co.. ;
(2) Basheshar Nath. v. C1T. Delhi & Rajasthan, ;
(3) Ganesh Ram v. Smt. Ramlakhan Devi. (FB);
(4) Motilal Padampat Sugar Mills Co. Limited v. State of Uttar Pradesh, ;
(5) Associated Hotels of India Limited v. S. B. Sardar Ranjlt Singh, .
13. Under the above circumstances, relying upon the case laws it has to be held that even though the first petitioner was represented by counsel, the conduct of the first petitioner will show that there is no waiver of his statutory right to receive the notice. Hence, it has to be held that the action of the respondents in passing the impugned order without proper notice to the first petitioner is in violation of principles of natural justice and therefore, the impugned order is liable to be quashed on the sole ground and accordingly the impugned order is quashed.
14. Accordingly, the writ petition is allowed. No costs. Liberty is given to the respondents to proceed with the matter afresh as per law within a period of three months from the date of receipt of this order copy. Till such time status quo has to be maintained. Consequently, connected W.M. P. are closed.