Madras High Court
Salem Shaharsha Makkan Majid Trust ... vs The Tamil Nadu Wakf Board on 10 February, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 10.02.2011 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN C.R.P. NPD. No.2894 of 2009 Salem Shaharsha Makkan Majid Trust Board rep. by its Trust Member and Mutawalli A. Nawabjan ... Petitioner versus The Tamil Nadu Wakf Board Chennai, rep. by its C.E.O., Chennai ... Respondent Petition has been filed under Article 227 of the Constitution of India against the order and decreetal order dated 20.03.2008 passed by the Principal Subordinate Judge (Wakf Tribunal), Salem in I.A. No.47 of 2006 in W.O.P. of 2006 in O.S. No.34 of 1936. For Petitioner : Mr. S. Karthikeyan For Respondent : Ms. Yasmeen Ali ORDER
Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.
2. The revision has been preferred, challenging the order dated 20.03.2008 made in I.A. No.47 of 2006 in W.O.P. of 2006 in O.S. No.34 of 1936 on the file of the Principal Subordinate Judge (Wakf Tribunal), Salem, whereby the Wakf Tribunal had dismissed the plea of the petitioner to conduct election for the Salem Shaharsha Makkan Majid Trust Board, by appointing an advocate commissioner.
3. It is seen that the interlocutory application in I.A. No.47 of 2006 was filed by the petitioner herein before the court below with the following prayer:
"Therefore it is just and necessary that this Hon'ble Court may be pleased to appoint a Court Commissioner to conduct fresh selection for the Salem Shaharsha Makkan Majid Trust Board, Mulluvadi, Salem-7 according to the scheme decree framed in O.S. No.34 of 1936 and otherwise I will be put to great loss and hardship and thus render justice."
4. It is seen that in the scheme suit filed in O.S. No.34 of 1936, a scheme decree was passed by the Subordinate Judge, Salem on 10.12.1938 as follows:
"It is hereby declared that the properties specified in the schedule described here under belong and pertain to the trust of Shakkar Shah Durgah and a Makkan which are situate on T.B. No.1174-A in Salem Town.
And it is hereby decreed that the following scheme shall govern the management and control of the Durgah.
(i) That the funds and properties of the suit trust i.e. the Shakkar Shah Durgah, shall vest in and be administered by five trustees who shall hold office for five years and be elected by the adult male Mohamadan residents of Salem and Shevapet present at a general meeting to be convened once in every five years by the said trustees at convenient times and places and after due advertisement. That the election must take place atleast one month before the term of the trustee expires.
(2) That the first trustees shall be plaintiffs 3 to 5 in the suit and I. Ghouse Khan Sahib and H. Dawood Khan Sahib who have been elected in place of plaintiffs 1 and 2 and they shall hold office for a term of five years from the date of this decree.
(3) That the trustee shall arrange for the upkeep and maintenance of the Durgah and the carrying out of the annual urus of the saint and other functions and festivities mentioned in para 5 of the plaint in the traditional and customary manner and to the extent the funds and income at their disposal admit. That they shall furnish within three months an estimate of the expenses proposed to be incurred during the current year giving particulars in court for sanction. That the subsequent budgets be modelled on that budget and shall require no further sanction.
(4) That the trustees shall draw the amount payable to them under the compromise decree in L.A.C. No.12 of 1937 in this court and invest the amount in some recognized bank.
(5) That the trustees shall be at liberty to draw the amount spent by them in connection with this litigation from the above amount after getting the sanction of the court.
(6) That the trustees shall keep cash in hand not exceeding Rs.50/-. All other amount should be kept in Bank. That expenses above Rs.50/- must be made by the issue of cheques.
(7) That the trustees shall have power to frame by-laws for the internal management of the trust properties and the carrying out of their duties including the election of a president, a secretary or an ex-officio trustee or other officer among themselves for such periods and with such functions and duties as may be determined by them.
(8) That the trustees shall be in possession of all properties of the Durgah and shall have power to lease them for periods not exceeding five years at a time.
(9) That the trustees shall have power to institute and take proceedings in Courts for obtaining possession of other properties belonging to the Durgah and now in the hands of others, for setting aside alienations made by the previous managers of the Durgah or others connected therewith.
(10) That the trustees shall keep proper accounts of all incomes and expenditure and have the same audited every year.
(11) That, when there are surplus funds available in the hands of the trustees, it would be open to them to provide for the education of poor Muhammadan children and for other similar purposes.
And it is hereby further ordered and decreed that the costs of this suit viz. Rs.50/- shall come out of the properties of the said Durgah.
5. It is an admitted fact that the scheme decree is not under challenge in this revision. The revision petitioner filed the I.A. No.47 of 2006, before Wakf Tribunal to conduct election for the Shaharsha Makkan Majid Trust Board, Salem-7 by an Advocate Commissioner. Admittedly the petitioner was one of the five elected trustees and holding office as Mutawalli, since 03.06.2001 and the term was over on 02.06.2006. It is seen that the accompanying affidavit of the petition was signed only on 06.12.2006, after the expiry of the term of office of the petitioner.
6. Learned counsel appearing for the petitioner relied on the decision of a Division Bench of this Court in The Executive Committee of the Masjid-E.Farkhunda, rep. by its Mutawalli Haji Mohammed Gani and 2 others vs. P.A.G. Hussain Moulana and two others, 1996-2-Law Weekly 788, wherein it has been held as follows:
"8. It is next argued that the remedy of the 1st respondent is to move only the Wakf Board and he cannot approach the Civil court for any relief. There is no merit in this contention also. It is contended that once the Wakf Board has notified the Trust as a Wakf, the provisions of the scheme become effective and they are no longer in force. This contention was urged before the learned Judge also and he found that there was no substance in that contention. We agree with the view expressed by the learned Judge. It has been held repeatedly by this Court that the notification under Wakfs Act or the management of the day today affairs of the Wakf Board will not in any way suspend or affect the operation of a scheme decree passed by a civil court".
7. Learned counsel appearing for the petitioner further cited the decision in Syed Thajuddin Versus Syed Mohideen and other, CDJ Law Journal 2010 MHC 6666, this Court has held that though the Wakf Board has got the power to appoint a Mutawalli, as per Section 32 of the Wakf Act, 1995, the Wakf Board has to appoint the Mutawalli in accordance with the scheme decree relating to the Wakf. However the aforesaid decision is not applicable, in view of the relief sought for by the petitioner, after the expiry of his term.
8. It is a settled proposition of law that there is no provision under the Wakf Act for the Wakf Board to interfere with the administration of Wakfs which are controlled and administered under a scheme by a civil court, unless the scheme decree is amended or modified as per procedure known to law. However without any deviation to the scheme decree, the Wakf Board can exercise its power under the Wakf Act.
9. Learned counsel appearing for the respondent drew the attention of this court to the Wakf Act and submitted that the power of Wakf Board is not confined only to the power under Sections 32 and 69 of the Wakf Act. It is not in dispute that the respondent is empowered to frame schemes for administration of Wakf, as per the Act. Learned counsel appearing for the respondent also drew the attention of this Court to the unreported decision rendered by Justice F.M. Ibrahim Kalifulla in W.P. Nos.7378 of 2004, 37465 of 2005 and CRP. (PD) 392 of 2006 dated 05.01.2008 wherein para 9 of the said judgment reads as follows:
"9. It is for the first respondent Board to examine the scheme decree passed in O.S. No.53 of 1952 and enforce its authority, as provided under the provisions of the 1995 Act. It is open to the first respondent Wakf Board to examine whether or not the appointment of fresh office bearers under the scheme should be made afresh or permit the present set of office bearers viz. respondents 3 and 9 to 12 in W.P. No.37465 of 2005 for any particular length of time. It is also open to the petitioners in these writ petitions as well as Civil Revision Petition to approach the first respondent to either seek for any modification of the existing scheme decree in O.S. No.53 of 1952 or for appointment of fresh set of office bearers either under the scheme or by modification of the existing scheme decree by the first respondent Wakf Board. Till the first respondent Board exercise its powers and take a decision one way or other, it is hereby directed that the first respondent Board shall permit the present set of office bearers viz. respondents 3 and 9 to 12 in W.P. No.37465 of 2005 to continue to remain in office initially for a period of three months. The first respondent Board is also at liberty to appoint or authorise any of its Executive Officer to function along with the above respondents 3 and 9 to 12 for the proper administration of the Wakf during the said period of three months. The continuation of holding of office by respondents 3 and 9 to 12 after the period of three months shall depend upon any orders to be passed by the first respondent, pursuant to the orders of this Court."
10. As per the scheme decree in O.S. No.34 of 1936 dated 10.12.1938, the wakf properties have to be administered by five trustees, who shall hold office for five years. They are elected by the adult male Mohamadan residents of Salem and Sevvapet present at a general meeting to be convened once in every five years by the said trustees at the convenient time and place. Due advertisement should be given for the election atleast one month before the expiry of the term of the trustees. As per clause 1 of the scheme decree, it has been made clear that General Meeting to be convened once in every five years by the trustees at convenient time and place and after due advertisement being made. Such election must take place atleast one month before the term of the trustees expires.
11. In the instant case, the petitioner was elected as one of the five trustees and holding office as Muthavali, since 03.06.2001. Admittedly his term was over on 02.06.2006. He filed Interlocutory Application in I.A. No.47 of 2006 only on 06.12.2006 before the Wakf Tribunal/Principal Sub Judge, Salem after the expiry of the term. A Division Bench of this Court in the decision in The Executive Committee of the Masjid-E.Farkhunda, rep. by its Muthavalli Haji Mohammed Gani and 2 others vs. P.A.G. Hussain Moulana and two others, 1996-2-Law Weekly 788 has held that appointment of hereditary trustee in a case, where there is scheme framed by the court, without following the procedure known to law, would not be legally sustainable. The aforesaid decision is not applicable to the facts and circumstances of this case, as there is no appointment of any hereditary trustee by the respondent herein against the scheme decree.
12. In the instant case, as per the scheme decree, election has to be conducted once in five years for electing five trustees and the trustees shall hold office for five years. The trustees are elected by the male members of the muslim community of Salem and Sevvapet. Learned counsel appearing for the petitioner has not disputed the fact that there is no clause in the scheme decree to mandate that the election should be conducted only by an advocate commissioner. Merely because, the earlier election was conducted by an advocate commissioner as per the orders of the Wakf Tribunal, the petitioner cannot claim it as a right that the election should be conducted only by the Advocate Commissioner. It is an admitted fact that after the election, the term of Mutawalli was over even on 02.06.2006 itself. However before the expiry of the term, the petitioner as one of the elected trustees and Mutawalli had not approached the Wakf Board/respondent herein or the Wakf Tribunal to conduct the election before the expiry of the five year term. The petitioner cannot continue his office as Mutawalli after the expiry of his term. It is not in dispute that Section 32 of the Wakf Act clearly speaks about the powers and functions of the Wakf Board, including to settle the schemes of management for Wakf, within the purview of the scheme decree.
13. Learned counsel appearing for the respondent submitted that the power of Wakf Board is not limited and the Wakf Board can also conduct election. It is not in dispute that the scheme decree in O.S. No.34 of 1936 was framed in the year 1938. Hence, if there is no mode in the scheme decree for conducting the election, it cannot be contended that the Wakf Tribunal alone is empowered to conduct the election by way of appointing an Advocate Commissioner. The Wakf Board having supervisory power over the Wakfs in the State and also the power of administration can also conduct the election within the purview of the scheme decree after the expiry of the term of trustees. The scheme decree, has not specifically stated as to how the election has to be conducted. In the earlier occasion through an advocate commissioner, appointed by the Wakf Tribunal, had conducted the election. After the expiry of the five year term as trustee, the petitioner cannot claim any right of holding the office as Mutawalli. However, as it is a public Wakf, comes under the purview of the Wakf Act, after the expiry of the five year term of office by the Trustees, the Wakf Board is empowered under Section 32 of the Wakf Act to take over the administration and conduct the election for the Wakf, as per the scheme decree at an early date by avoiding unusual delay in conducting the election.
14. Learned counsel appearing for the respondent drew the attention of this Court to the unreported decision rendered by the Justice F.M. Ibrahim Kalifulla in W.P. Nos.7378 of 2004, 37465 of 2005 and CRP. (PD) 392 of 2006 dated 05.01.2008, wherein, in para 9 it has been categorically held that "the first respondent Board is also at liberty to appoint or authorise any of its Executive Officer to function along with the above respondents 3 and 9 to 12 for the proper administration of the Wakf during the said period of three months. The continuation of holding of office by respondents 3 and 9 to 12 after the period of three months shall depend upon any orders to be passed by the first respondent, pursuant to the orders of this Court".
15. In A.M. Mohideen Packeer and others vs Tamil Nadu Wakf Board and others, 1983 TNLJ 418 at page 421 this Court has observed as follows:
"when once the Scheme Court has recognised and seized of the matter, namely, the election of the appellants, that Board, even though it has got general superintendence of all Wakfs, has no power to interfere or to file the suit to set aside the election of the present trustees or to seek the relief from the civil court independently on the ground that the election is void and illegal".
16. In Syed Peer Shah Mohideen Kadiri vs. The Tamil Nadu Wakf Board represented by its Secretary and others 1976 86 Law Weekly at page 708 it has been held as follows:
"This is obviously a wrong appreciation of the law on the subject. There cannot be a substitution of the Wakf Board in the place of the civil court in matters where schemes have already been framed by civil court and if such schemes were enforced prior to the passing of Act 29 of 1954".
17. It is a well settled proposition of law that Wakf Board, the respondent herein is not empowered to act anything against the scheme decree. However, it being a Wakf governed by a scheme decree, to achieve the object of the Wakf, in a better manner and to meet the ends of justice, the respondent can move the appropriate court to amend or modify the decree, however, the Wakf Board cannot assume the role of the civil court, which passed the scheme decree.
18. When there is scheme decree relating to a Wakf, the Wakf Board can exercise its supervisory power under Section 32 of the Wakf Act, within the frame of the scheme decree, after the expiry of the term of office of the elected trustees and also to conduct the election as per the scheme decree without causing unusual delay in conducting the election.
19. It is made clear that the petitioner who was elected for five years in the year 2001 as one of the trustees and holding the office of Mutawalli, without any subsisting right, after the expiry of the five year term had filed the petition before the court below that was rightly dismissed. It cannot be construed that Wakf Board could be substituted in the place of Civil Court. The petitioner being the Mutawalli could have taken steps to conduct election of the five trustees, atleast one month prior to the expiry of the five year term of the trustees for the proper compliance of clause 1 of the scheme decree. However the petitioner being one of the elected trustees and Mutawalli failed to do so as per the scheme decree. The petition filed by the petitioner (former Mutawalli) after the five year term of his office, would not reflect the bonafide intention of the petitioner. Nearly four years after the expiry of the term of office of the petitioner, the civil revision cannot be maintained stating the petitioner, as Salem Shaharsha Makkan Majid Trust represented by its trust member Mutawalli A. Nawabjan.
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.
21. Therefore, I am of the view that the revision petition has to be dismissed. Accordingly, the revision petition is dismissed. No order as to costs.
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