Madras High Court
Mohamed Hanifa vs The Chairman on 8 September, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/09/2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.(MD)No.10406 of 2010 and M.P.(MD) Nos.1 and 2 of 2010 Mohamed Hanifa .. Petitioner Versus 1.The Chairman, Tamil Nadu Wakf Board, No.1, Jafershal Street, Chennai - 1. 2.The Superintendent of Wakf Board, 592, Kelaidar Street, Trichy. 3.The Inspector of Wakf Board, 592, Kelaidar Street, Trichy. 4.U.P.M.Rahamadullah .. Respondents Prayer This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records and to set aside the impugned order br.K.Miz vz;.5764/07/M12/jpUr;rp, dated 04.08.2010 passed by the first respondent. !For Petitioner ... M/s.M.R.Murugesan ^For Respondents 1-3 ... M/s.K.K.Senthil For Respondent 4 ... M/s.K.Hemakarthikeyan :ORDER
This writ petition has been filed, praying for a writ of certiorari, to call for the records relating to the impugned order of the first respondent, dated 04.08.2010 and to quash the same.
2. The learned counsel appearing on behalf of the petitioner had submitted that the petitioner has been elected as Muthavalli of Puthanatham Jumma Pallivasal, Manamadurai Taluk, Trichy District. The petitioner had been elected as the Muthavalli, on 14.03.2010, and a resolution had also been passed, by the members of the Executive Committee, regarding the election of the petitioner, on 24.03.2010. On 01.04.2010, the fourth respondent had handed over the charge of the pallivasal to the petitioner. Since then, the petitioner has been functioning as the Muthavalli of the Puthanatham Jumma Pallivasal. While so, on 16.07.2010, the fourth respondent and certain others had entered into the Jamath and started to create trouble and had also attempted to attack the petitioner. Therefore, the petitioner had given a police complaint against the fourth respondent. However, the fourth respondent, using his political influence, had approached the second respondent to initiate action against the petitioner and to remove him from the office of Muthavalli. Accordingly, the second respondent, without any jurisdiction and without issuing any notice to the petitioner, had directed the petitioner to appear before him, on 28.07.2010.
3. In such circumstances, the petitioner had filed a writ petition before this Court, in W.P.(MD)No.9708 of 2010, challenging the notice issued by the second respondent. However, this Court had dismissed the writ petition directing the petitioner to appear for the enquiry and to submit his explanation. An enquiry had been conducted, on 28.07.2010, without giving the copies of the relevant documents, to the petitioner, to enable him to present his detailed objections. Based on the enquiry, the impugned order, dated 04.08.2010, had been passed, removing the petitioner from the post of Muthavalli of the Puthanatham Jumma pallivasal and instead, appointing the fourth respondent as the Muthavalli of the said pallivasal. Challenging the order passed by the first respondent, dated 04.08.2010, the present Writ Petition has been filed by the petitioner.
4. The learned counsel appearing on behalf of the petitioner had submitted that no proper notice had been issued to the petitioner before the impugned order had been passed by the first respondent. The provisions of Clause 3 of Section 64 of the Wakf Act, 1995, had not been adhered to, while passing the impugned order, dated 04.08.2010. When it is clear that the first respondent Board is the authority to conduct the enquiry, the second respondent had conducted the enquiry, without having the power to do so.
5. The learned counsel appearing on behalf of the petitioner had also submitted that no meeting had been held, on 18.05.2010, as claimed by the respondents, based on which, the petitioner had been removed from the post of Muthavalli. In fact, no reference has been made in the impugned order, dated 04.08.2010, regarding the meeting alleged to have been held, on 18.05.2010. From the statements made by the Secretary and the Treasurer of the Wakf, on 22.05.2010, before the Inspector of Wakf, it is clear that no meeting had been held, on 18.05.2010, as claimed by the respondents.
6. The learned counsel appearing on behalf of the petitioner had also submitted that a Wakf's original petition, in W.O.P.No.19 of 2010, had been filed before the Wakf Tribunal, Trichy, under Section 83(2) of the Wakf Act, 1995, praying for an order of injunction restraining the respondents therein from interfering in the petitioner's management of the Pallivasal, as its President-Muthavalli. Even in the counter affidavit filed in the said original petition, on 13.06.2010, nothing has been stated about the meeting alleged to have been held, on 18.05.2010. Thus, it is clear that no such meeting had been held, based on which, the impugned order had been passed by the first respondent.
7. The learned counsel appearing on behalf of the petitioner had further submitted that the impugned order of the first respondent, dated 04.08.2010, is arbitrary, illegal and void, as it has been passed in violation of the statutory provisions of the Wakf Act, 1995, and in violation of the principles of natural justice. As such, the availability of an alternative remedy of raising the issue before the Wakf Tribunal cannot be held to be a bar against the petitioner, in preferring a writ petition before this Court, invoking its writ jurisdiction, under Article 226 of the Constitution of India.
8. The learned counsel appearing on behalf of the petitioner had also submitted that there is no material suppression of fact by the petitioner, as alleged by the respondents. Therefore, the impugned order of the first respondent, dated 04.08.2010, is not sustainable in the eye of law.
9. Per contra, the learned counsels appearing on behalf of the respondents had submitted that it is not in dispute that the petitioner had been elected as the President-Muthavalli of the Puthanatham Jumma Pallivasal, on 14.03.2010, by the members of the Executive Committee. However, the election of the petitioner had not been approved by the Wakf Board, as required under law. Since, the petitioner had failed to conduct the Executive Committee meeting and as he had opened a bank account in his name and since, he had caused the demolition of the buildings belonging to the said Pallivasal, the majority of the members of the Executive Committee had decided, in the meeting held on 18.05.2010, to remove the petitioner from the post of President-Muthavalli of the Pallivasal and to elect the fourth respondent as its Muthavalli. The election of the fourth respondent, as the Muthavalli of the Pallivasal had been duly communicated to Wakf Board and it had also been approved. It had also been submitted that Clause 3 of Section 64 of the Wakf Act, 1995, will not apply to the present case, as the election of the petitioner, as the Muthavalli of the Puthanatham Jumma Pallivasal had not been approved by the Wakf Board, as per law.
10. The learned counsels appearing on behalf of the respondents had also submitted that the present writ petition filed by the petitioner, challenging the order of the first respondent, dated 04.08.2010, is not maintainable since, all disputed questions and other matters relating to Wakf or Wakf property can only be agitated before the Wakf Tribunal, as provided under Section 83 of the Wakf Act, 1995. In fact, the petitioner had initiated the necessary proceedings before the Wakf Tribunal, in W.O.P.No.19 of 2010.
11. Further, the learned counsels appearing on behalf of the respondents had relied upon the following decisions, to substantiate their claim that this Court, in exercise of its writ jurisdiction, under Article 226 of the Constitution of India, cannot go into the disputed questions of facts and that it is for the Wakf Tribunal to decide such matters, relating to removal of a person from the post of Muthavalli of a Pallivasal.
(i)W.P.(MD) No.9789 of 2009, etc. (batch) in M.Liakath Ali and others vs. The Tamil Nadu Wakf Board represented by its Chief Executive Officer and others.
(ii) 2010 (1) CWC 207 (M.Liakath Ali v. The Tamil Nadu Wakf Board and others).
(iii)2005-2-L.W.615 (Mukram Sherif v. Moinudeen Sheriff and others).
(iv)2005-1-L.W.676 (Salam Khan v. The Tamil Nadu Wakf Board and others).
12. In view of the averments made in the affidavit filed in support of the petition and in view of the statements made in the counter affidavit filed on behalf of the respondents, and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the relief, as prayed for in the writ petition.
13. Though the petitioner has claimed that he has been duly elected as the President-Muthavalli of the said Pallivasal, on 14.03.2010, by the members of the Executive Committee, he has not been in a position to show that his election has been duly approved by the Wakf Board, as per law. Further, it is seen, from the records available before this Court, that the petitioner had participated in the enquiry held, on 28.07.2010, conducted by the Wakf Board, pursuant to the directions issued by this Court, in W.P.(MD)No.9708 of 2010 filed by the petitioner. Thereafter, the petitioner had been removed by the majority of the members of the Executive Committee, in its meeting held on 18.05.2010. Since, disputed questions of fact have arisen, with regard to the appointment of the petitioner as the Muthavalli of the Puthanatham Jumma Pallivasal and his removal from the post of Muthavalli and the consequential act of appointment of the fourth respondent, as the Muthavalli of the said Pallivasal, this Court is of the considered view that such disputed questions, relating to the Wakf ought to have been agitated before the Wakf Tribunal, as per Section 83 of the Wakf Act, 1995, as held in the decisions cited above. As such, the present writ petition filed by the petitioner, invoking the writ jurisdiction of this Court, under Article 226 of the Constitution of India, is not maintainable. Hence, this writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
srm To
1.The Chairman, Tamil Nadu Wakf Board, No.1, Jafershal Street, Chennai - 1.
2.The Superintendent of Wakf Board, 592, Kelaidar Street, Trichy.
3.The Inspector of Wakf Board, 592, Kelaidar Street, Trichy.