Madras High Court
Hazarath Khaja Syed Sulthan Alauddin vs M.V.P.Dayalavel(Died) on 11 December, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/12/2012
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(PD)(MD)No. 1562 of 2012
and
M.P.(MD)No.2 of 2012
Hazarath Khaja Syed Sulthan Alauddin
Avulia Darha and Mosque
through its Managing Trustee
Mr.S.Shajahan
Pallivasal Street, Goripalayam,
Madurai-625 002. ... Petitioner/Petitioner
Vs.
M.V.P.Dayalavel(died)
1. M.V.P.Gunavel
2. V.Arunachalam
3. The Commissioner,
Madurai Corporation,
Madurai-625 002.
4. The Tamilnadu Wakf Board
represented by its Chief Executive Officer,
2, Jaffer Sirajudeen Street,
Vallal Seethakathi Nagar,
Chennai.
5. D.Vasantha Dayalavel
6. D.Prem Palanivel
7. R.Priya ... Respondents/Respondents 2 to 8
Prayer
Petition filed under Section 83(9) of the Wakf Act, 1995 to set aside
the Order and Decreetal order dated 22.06.2012 made in W.O.P.No.4 of 2010, on
the file of the Principal Sub Court, (Wakf Tribunal) Madurai.
!For Petitioner ... Mr.V.Sitharanjandas
^For Respondents ... Mr.S.Anand Chandrasekar for
M/s.V.Sarvabhauman Associates
for R.1, R.5 to R.7
Mr.Vallinayagam
Senior Counsel
for Mr.K.Gokul for R.2
Mr.Gunaseelan Muthiah
for R.3
Mr.M.Mohamed Ibram Saibu
for M/s Ajmal Associates
for R.4
* * * * *
:ORDER
This Civil Revision Petition has been filed to get set aside the order dated 22.06.2012 passed in W.O.P.No.4 of 2010 by the learned Principal Sub Judge, (Wakf Tribunal) Madurai.
2. Heard both sides.
3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition, would run thus:
(i) The revision petitioner herein describing itself as Hazarath Mosque through its Managing Trustee filed W.O.P.No.4 of 2010 before the Wakf Tribunal seeking the following reliefs:
"a) declaring that the schedule property is Wakf property belongs to the petitioner Darha
b) and consequently restrining the I and II Respondent from in anyway alienating or encumbering the suit property in favour of the III Respondent or any third parties
c) And directing the 4th Respond to restore the House Tax Registry of Madurai Corporation in the name of petitioner's Darha" (extracted as such)
(ii) Whereupon the respondents 1 and 2 in W.O.P. filed counter affidavit and the third respondent separately filed one other counter affidavit and the respondents 4 and 5 also filed separately their counter affidavits. Pending litigation, the first respondent died. Hence, the legal representatives of the first respondent viz., the respondents 6 to 8 were added.
(iii) Precisely and concisely, the case of the revision petitioner is that the property described in the schedule of the plaint belongs to the said Dharha and it was initially leased out to the first respondent as a vacant site, wherein he raised the superstructure. Subsequently, since the first respondent and his brother - second respondent therein, started setting up title in themselves and also they entered into an agreement to sell with the third respondent, the revision petitioner was constrained to file the said W.O.P. for getting declared such property as Wakf property. No doubt, at the time of filing of W.O.P., the property was not included in the list of Wakf properties, as per the Wakf Act, 1995.
(iv) The Wakf Board, who was also arrayed as the fifth respondent in W.O.P,. took action and pending litigation, they declared the suit property as the Wakf property.
(v) During enquiry before the Tribunal, on the petitioner's side, P.Ws.1 and 2 were examined and Exs.A.1 to A.31 were marked and on the side of the respondents' side, D.Ws.1 to 4 were examined and Exs.B.1 to B.18 were marked.
Pending litigation, the suit property was also sold to the third respondent. Ultimately, the Tribunal dismissed the W.O.P., by giving a finding that the suit property is not a Wakf property.
4. Being aggrieved by and dissatisfied with the order passed by the Tribunal, this Civil Revision Petition has been focussed on various grounds.
5. The learned Counsel for the revision petitioner placing reliance on the grounds of revision would pyramid his arguments thus:
Even though the petitioner adduced evidence showing that the property originally belonged to the Wakf and it was leased out in favour of the first respondent, and the first respondent, with the help of his brother started setting up adverse claim, yet, the Tribunal simply ignored it. The Tamil Nadu Wakf Board is the competent Authority to declare the property as a Wakf property and they also declared so. In such a case, the Tribunal was not justified in simply dismissing the claim of the revision petitioner.
6. Per contra, the learned Senior Counsel appearing for Arunachalam, who is arrayed as the second respondent in the revision petition would develop his arguments which could pithily and precisely be set out thus:
(i) The Wakf Tribunal had no jurisdiction to entertain such a suit, because if there is any claim by any Mosque or Darha that the property belongs to it, then it should approach the Wakf Board for getting it declared so after complying with the procedures as contemplated under the provisions of the Wakf Act, 1955. Pendente lite the declaration made by the Wakf Board is having no legs to stand as the procedure contemplated under the law was not adhered to and even the interested persons viz., the original respondents 1 to 3 in the W.O.P. were not heard. As such, the said procedure adopted by the Wakf Board was not valid.
(ii) On the other hand, independently, the said Dayalavel and Gunavel happened to be the owners of the property and they first entered into an agreement to sell with Arunachalam and thereafter, they executed the sale deed.
In such a case, the question of Darha interfering with their ownership would not arise. The Subordinate Court based on the oral as well as the documentary evidence, correctly held that it was not a Wakf property.
7. The learned Counsel for the respondents 1, 5 to 7 would submit that he has adopted the arguments as put forth and set forth by the learned Senior Counsel appearing for the second respondent herein.
8. The points for consideration are:
(i) Whether the filing of the W.O.P. before the Tribunal was proper?
(ii) Whether the Tribunal had jurisdiction to entertain such a suit in the wake of provisions of the Wakf Act, 1995?
(iii) Whether the declaration made by the Wakf Board pending litigation, declaring the suit property as Wakf property of the revision petitioner, is having any significance in this matter?
(iv) whether there is any perversity or illegality in the order passed by the Wakf Tribunal?
9. All the points are taken together for discussion as they are inter- linked and interwoven with one other.
Point Nos.(i) to (iv)
10. At the outset, I would like to fumigate my mind with the following decisions:
(i) Tamil Nadu Wakf Board v. Hathija Ammal (Dead) by Lrs., reported in 2002 (1) CTC 561. Certain excerpts from it, would run thus:
"5. Let us now examine the provisions of the Act. Under Section 5(2) of the Act, after a property is notified to be wakf property, a determination is made by a Civil Court whenever any dispute arises after the notification is published by the Wakf Board as to whether a particular property specified as wakf property in a list published is a wakf property or not. Section 6 further provides that the Civil Court shall not entertain any such suit after the expiry of one year after the date of publication of the list by the Board. Such a suit cannot be at the instance of the Wakf Board. Again, the Board may itself collect information regarding any property as provided under Section 27 of the Act and decide whether a particular property is wakf property or not and that decision is final unless it is revoked or modified by a civil court.
6. In the event, any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any, question arises whether a particular property is a wakf property or not it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf board shall be final unless revoked or modified by a civil court. Such action has not been taken by the Wakf Board in this case.
7. The High Court is justified in holding that the Wakf Board had no right to institute suit for declaration that any property is a wakf property as the scheme of the Act clearly indicates. The High Court further found that as far as the appellant is concerned with regard to title of any property, it must comply with the requirements of Sections 4, 5 and 6 or 27 of the Act, which means that if any property is not published as wakf property as required under Section 5(2) of the Act or the Board has not invoked the special power under Section 27, the Wakf Board cannot file a suit for declaration and possession and on that basis upheld the order made by the Trial Court as affirmed by the First Appellate Court."
(ii) Ahale Sunnathwal Jamath Jogi Madam and Durga v. Haji Syed Irfan Hussai Sahib reported in 2010 (2) MWN (Civil) 655. An excerpt from it, would run thus:
"10. The perusal of the judgement of the Honourable Apex Court reported in Tamil Nadu Wakf Board v. Hathija Ammal (Dead) by Lrs, etc., 2002(1) CTC 561 (SC):2002 (1) LW 384, leaves no doubt that Sections 4, 5, 6 and 27 of the Wakf Act 1954 (which are in pari materia with Sections 4, 5, 6 and 40 of the Wakf Act, 1995) should necessarily be adhered to before filing a Suit for recovery of possession of the Wakf property. It is beyond doubt that the institutions like the Plaintiff could file a Suit for possession of the Wakf property, but before filing such Suit necessarily the said institution should comply with the aforesaid provisions of law as per the mandate of the Honourable Apex Court."
11. A cumulative reading of the aforesaid precedents would unambiguously and unequivocally highlight and spotlight the fact that if there is any dispute relating to Wakf property as per the provisions of Wakf Act 1955, no suit in civil Court or even W.O.P. before the Tribunal could straightaway be filed. The only remedy which was available for the revision petitioner at the relevant time of presenting the W.O.P. before the Tribunal, was that it ought to have approached the Wakf Board for getting the suit property declared as Wakf property. But indubitably and indisputably, it was not done so. As such, it is crystal clear in view of the decisions of the Honourable Apex Court as well this Court that such presentation of W.O.P. is ab initio void and the subsequent proceedings conducted before the Tribunal in W.O.P. cannot be countenanced as valid.
12. The learned Counsel for the revision petitioner would place reliance on the decision of this Division Bench of this Court in Chief Executive Officer & another v.Syde Peer Shah Mohideen Khadari reported in 2011-2-L.W. 142.
13. In view of the clear and categorical decision of the Honourable Apex Court in Tamil Nadu Wakf Board v. Hathija Ammal (Dead) by Lrs., reported in 2002 (1) CTC 561, which is squarely applicable to the facts and circumstances of the present case. I am of the considered view that such filing of W.O.P. was ab initio void and accordingly, that ought to have been dismissed.
14. Pending W.O.P., the Wakf Board who happened to be a party made therein communication which is marked as Ex.P.19 and the relevant portion is extracted hereunder for ready reference:
bghUs;:tf;g; rl;lk; 1995 - kJiu khtl;lk; - Bfhhpg;ghisak; _ cw$uj; fh$h iraJ Ry;jhd; mt[ypah jh;fh kw;Wk; k!;$pj; - tf;g; brhj;ij - brhj;Jg;gl;oaypy; - Brh;j;jJ - Fwpj;J ghh;it: tf;g; fz;fhzpg;ghsh;, (TLjy; bghWg;g[ kJiu mwpf;if ehs; 29.09.2010 ...
ghh;itapy; fz;l mwpf;ifapidj; bjhlh;e;J Bkw;go tf;gpw;F ghj;jpag;gl;l o.v!;.vz;1259 kw;Wk; 1260 vz;zpy; cs;s 6832 rJu mo bfhz;l (fjt[ vz;.106-D, ghyk; !;Bl&d; BuhL, Bfhhpg;ghisak;, kJiu-2) brhj;ij tf;g; gjpBtl;loy; TLjy; bjhj;jhf gjpt[ bra;ag;gl;Ls;sJ vd;gijj; bjhptpj;Jf; bfhs;fpBwd;. BkYk; tHf;F vz;. ..W.O.P.4/2010 d; epiyia mt;tg;bghGJ bjhptpf;ft[k; Bfl;Lf; bfhs;fpBwd;.
15. I would like to point out that Section 40 of the Wakf Act, 1995, would contemplate an elaborate procedure for conducting enquiry adhering to the principles of natural justice.
16. At this juncture, I recall the legal maxim "Jura naturae sunt immutabilia". [Principles of natural justice cannot be dispensed with and should be adhered to.].
17. Accordingly, if viewed, before making any such decision as to whether the property is a Wakf property or not, the interested persons should have been given an opportunity of being heard. Here, the interested persons are the respondents 1 to 3 in W.O.P. But, it is quite obvious that they have not been heard as correctly pointed out by the learned Senior Counsel as well as the learned Counsel for the respondents 1, 5 to 7. The Tribunal has also not touched that point, but it went into the merit of matter and held as though the said property was not a Wakf property.
18. To the risk of repetition and pleonasm, but without being tautologous, I would like to point that the Tribunal in view of it having entertained that W.O.P. without jurisdiction on issue, its finding cannot be upheld as valid. The core question arises as to whether precisely the Wakf Board declared as per Ex.P.19, after conducting enquiry, the suit property as Wakf property; the answer is obvious that it had not done so.
19. As of now, this Court has to hold that the filing of the W.O.P., was ab initio void and the proceedings conducted thereunder and the findings given by the Tribunal have to be set aside and accordingly set aside.
20. For the purpose of disambiguating the ambiguity if any, I would like to point out that the Board has got ample power under Section 40 of the Wakf Act, 1995, to conduct a survey and enquiry subject to adherence to the principles of natural justice and do the needful. If any person is aggrieved by that, he can very well approach the Tribunal thereafter.
22. Wherefore, it is open for the parties to work out their remedies in the way known to law.
23. On balance, this Civil Revision Petition is disposed of in the above terms. Consequently, the connected Miscellaneous Petition is closed. No costs.
ssl/rsb To The Court of Principal Sub Judge, (Wakf Tribunal) Madurai.