Madras High Court
Mr.M.Mohamed Hanifa vs Mr.K.S.Abdul Gafoor on 1 February, 2021
C.R.P.(PD).No.3685 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.11.2020
PRONOUNCED ON : 01.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.R.P.(PD).No.3685 of 2019
and
C.M.P.No.24222 of 2019
1.Mr.M.Mohamed Hanifa
2.Mr.A.Khader Mohideen
3.Mr.M.Shajahan
4.Mr.A.Taj Basha
5.Mr.J.Mohamed Ali ...Petitioners/3rd parties
.. Vs ..
1.Mr.K.S.Abdul Gafoor
2.The Tamil Nadu Wakf Board,
Represented by its Chairman,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
3.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
4.The Adhoc Managing Committee,
Sunguvarchatram Ahle Sunnathval Jamath Jamia Masjid,
Bengaluru Main Road, Thirumangalam (Madura),
Sunguvarchatram, Sriperrumbudur Taluk,
Kancheepuram District. ...Respondents
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https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.3685 of 2019
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India read with Section 83 (9) of the Wakf Act
against the Judgment and Decree dated 05.09.2019 passed by the
Hon'ble Tamil Nadu Wakf Tribunal at Chennai in O.A.No.73 of 2019.
For Petitioners : Mr.T.Velumani
For Caveator : Mr.N.A.Nissar Ahmed (Tamil Nadu)
For R2 & R3 : Mr.V.Lakshmi Narayanan (Tamil Nadu)
For R4 : Mr.G.R.M.Palaniyappan
ORDER
(The case has been heard through video conference) The third parties are the revision petitioners herein.
2.Pursuant to the order passed by this Court in CMP.No.22433 of 2019, dated 23.10.2019, a permission to file the CRP was granted.
3.Mr.N.A.Nissar Ahmed, learned counsel take notice on behalf of the first respondent and Mr.V.Lakshmi Narayanan,learned counsel takes notice on behalf of the respondents 2 & 3.
4.The third parties to the proceedings before the Tamil Nadu Wakf Tribunal in O.A.No.73 of 2019, are the revision petitioners 2/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 herein, filed this Civil Revision Petition under Article 227 of the Constitution of India read with Section 83 (9) of the Wakf Act, to challenge the Judgment passed in O.A.No.73 of 2019 by the Tamil Nadu Wakf Tribunal at Chennai, dated 05.09.2019.
5.The factual matrix that are required for determination of this CRP is as under:
(a)This petition has been filed by the revision petitioners/third parties to the proceedings before the Tamil Nadu Wakf Tribunal, Chennai, to challenge the order passed in O.A.No.73 of 2019, by the Tamil Nadu Wakf Tribunal at Chennai, dated 05.09.2019, since it is affecting the rights of the Jamathdars of Sunguar Chatram in respect of the administration of Mosque Suguvarchatram Ahle Sunnathval Jamath Jamia Masjid, Bengaluru Main Road.
(b)In the year 1948 the Wakif namely Mrs.N.J.Khathija Beevi had executed a Wakf Deed and dedicated the property measuring an extent of 2 Acres and 2 Cents comprised in Survey No.365/1, Thirumangalam Village, for the purpose of constructing a mosque in Sunguvarchatram for catering the travelers who are traveling on the Main Road and for the local mohalla people.
(c)The above said Wakif viz., Mrs.N.J.Khathija Beevi, Wife of 3/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 Khithar Mohammed, had donated an extent of 2 Acres and 2 Cents comprised in Survey No.365/1, Thirumanglam Gramam, Sriperumbudur Sub-District then Chengalpattu District, presently in Kancheepuram District. The Wakif had appointed Trustees i.e., i) V.M.Khidhar Mohammed Sahib; ii) A.M.K.Syed Ahmed Sahib; iii) Abdus Salam; iv) A.M.K.Mohamed Sultan; v) Sheik Ansar Basha Sahib; vi) J.K.Ibrahim Shaw Rowther; vii) M.V.Abdul Raheem; viii) Abdul Wahab and ix) Mohammed S.S. Hanniffa Rowther, for the management of the Wakf Board.
(d)The said trustees have to function themselves as trustees and they have the power to nominate their successors in office and in the event if they fail to nominate, the Wakif can appoint the trustees. In the event both nomination is not made, the existing trustees shall appoint further trustees. Thereby, a direction was given by the Wakif about the administration of the Wakf Board, in the said document.
(e)According to the petitioner herein, in the said document, it is stated that once in three years, selection will be conducted by the local jamath and in pursuance to the selection, the elected committee will be managing the Mosque. All of a sudden after a long period viz., after more than 50 years, in the year 2018, the 4/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 respondents 1 & 4 have made a claim that the hereditary Trustees alone shall be appointed as Committee members and the same was objected by the local Jamathdars and insisted that election shall be conducted by way of secret ballot for all the Jamathdars and a petition was sent to the 1st respondent on 30.10.2018 to conduct election by secret ballot for the management of the Mosque. Since the 1st respondent Board has not positively considered their representation dated 30.10.2018, they were constrained to file a writ petition before this Court in W.P.No.33381 of 2018 to consider their representation dated 30.10.2018 and the same was allowed by this Court on 14.12.2018.
(f)In the meanwhile, the first Respondent Board had decided to conduct an election. Till the election is conducted as an Interim measure, on 14.12.2018, the first respondent board has appointed a committee consisting of 9 members for the administration of the Wakf, for a period of 6 months. Subsequently the Jamathdars made a representation to the second respondent by stating that the committee consisted only the relatives of the Hereditary Trustees and Jamath representation shall also be given in the appointment order and as such on 04.02.2019, a separate order was passed by the second respondent Board, appointing the revision 5/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 petitioners/third parties also as a committee members along with the existing committee members for a period of six months.
(g)After the expiry of the Adhoc Committee on 05.07.2019, 14 members committee was selected for the Management of the Mosque, including the petitioners in the management of the Mosque.
(h)The respondents 1 & 4 had filed O.A.No.73 of 2019 before the Wakf Tribunal at Chennai, for a direction that the Tamil Nadu Wakf Board should conduct election as per the terms of the Wakf Deed without adhering to the provisions in the proforma report.
(i)In the said proceedings, the first respondent deliberately omitted to implead the petitioners who are the Jamathdars and joint committee members having rightful contenders to conduct election and also to participate in the election as per the terms of the proforma report, as well as order passed by this Court.
(j)After the proforma report was prepared, the Jamathdar use to conduct the selection once in three years and the committee on consent was appointed for the administration of the Sunguvarchatram Ahle Sunnathval Jamath Jamia Masjid, Bengaluru Main Road and the administration has been done without any quarrel.
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(k)The first respondent have filed an appeal in O.A.No.73 of 2019 before the Tamil Nadu Wakf Tribunal at Chennai, collusively obtained an order that the Wakf Board while conducting the election, has to follow the direction contemplated under the Wakf Deed dated 21.04.1948.
6.Heard Mr.T.Velumani, learned counsel appearing for the petitioners, Mr.N.A.Nissar Ahmed, learned counsel appearing for the first respondent and Mr.V.Lakshmi Narayanan, learned counsel appearing for the respondents 2 & 3.
7.The contention of the learned counsel appearing for the petitioners is that no successive nomination was made between the outgoing trustees at any given point of time and that the rule of succession was cut off long time back. As per the proforma report only, the selection was conducted by the local jamath and the committee was selected. After realizing the fact that election will be conducted by the 1st respondent by a Secret ballot, the Respondents 1 & 4 by colluding together, with the Adhoc Committee member, had obtained an order in O.A.No.73 of 2019, thereby affecting the right of Jamathdars in participating the election as well as to participate 7/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 in the management.
8.Perused the order passed by the Tamil Nadu wakf Triunal, Chennai, in O.A.No.73 of 2019, perused the wakf deed document No.1340 of 1948, dated 21.04.1948 and proforma report dated 31.10.2018.
9.The records shows that the order under challenge in O.A.No. 73 of 2019, is an application filed by the first respondent herein against the respondents 2 to 4 herein to exercise its powers in conformity with the directions of the Wakif under the Waqf deed dated 21.04.1948 bearing Doc.No.1340 of 1948 and custom and usage of the said waqf and for grant permanent injunction restraining the respondents 2 & 3 herein from any manner deviating from the directions of the Wakif under the Waqf deed dated 21.04.1948 bearing Doc.No.1340/1948 by selecting or conducting elections to the post of Muthavalli in any other manner.
10.On perusal of the wakf deed dated 21.04.1948, it is seen that the Wakif Mrs.N.J.Khathija Beevi, w/o.Khithar Mohammed was the owner of the property of an extent of 3 acres and 2 cents in 8/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 Patta No.28, comprised in S.No.365/1, Thirumangalam Village, in No.136, Sriperumbudur, Chengalpet District. The founder also endowed 300 feet by 60 feet in the above said property under a Waqf deed dated 21/04/1948 bearing Doc.No.1340/1948. The first respondent herein is the son of proforma Muthavalli and erstwhile Muthavalli.
11(a).The founder under the said Waqf deed constituted and nominated 9 trustees to become Muthavallis of its Mosque and its properties. The Waqf deed provides that each one of the trustees or Muthavallis as the case may be before he vacates office nominate his successor and when there is no such nomination the right to nominate such trustees or Muthavallis shall vest in the Wakif, her heirs and successors apart from the other stipulations.
11(b).The Waqf has been administered as per the above Waqf deed by the legal heirs of the Wakif and the legal heirs of the Muthavallis since the creating of the Waqf. Thereafter additional property had been endowed under Doc.No.4183/1958 and Doc.No.1239/1972.
9/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 11(c).The Waqf had been administered from 1950 to 1980 by Jabbar and A.Shahul Hameed, 1980 to 1984 by Abdul Ali, 1984 to 1986 by Jamal, 1986 to 1987 by Abdul Gafoor, 1987 to 1995 by Khader Mohideen, 1995 to 1998 by Abdul Khader 1998 till 2018 by Abdul Qhudus. Only the Muthavallis shall be from the legal heirs nominated by the above said trustees and the names given above headed the Muthavillas. As such, all along the Waqf had been administered by the Muthavillas as per the Waqf deed.
11(d).The proforma report maintained by the Waqf Board also mentions that the Waqf had been endowed and governed under a waqf deed dated 21.04.1948 bearing Doc.No.1340/1948. The proforma Muthavalli A.M.K.Ahamed Shaib is also one of the trustee mentioned in the waqf deed dated 21.04.1948 bearing Doc.No.1340 of 1948.
12(a).It is observed by the Wakf Tribunal that certain persons wanted to get into administration and management of the Waqf. Taking advantage of a wrong entry in the proforma of the Waqf Board that Muthavalli is elected by Muslim Jamath created confusion and commotion. Therefore it necessitated the Muthavallis to 10/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 approach the Board for appointment of an Adhoc Committee. The Waqf Board had appointed an Adhoc Committee vide order dated 14.12.2018 for a period of 6 months and office bearers are all legal heirs of the Muthavallis and only one person namely Meera Hussain is an outsider. This order came to be passed as an interim measure and to protect the interest of the Waqf and to show to the police authorities and to prevent any breach of peace.
12(b).Further, it appears that in the Adhoc Committee one of the petitioner herein is appointed as the executive committee member and he is now challenging the order passed in the above said O.A.No.73 of 2019, whereby, the Wakf Tribunal has directed the Wakf Board to conduct the election to the post of Muthavallis as per the Wakf Deed and also directed the proforma regarding rule of succession in consonance with the recital in the wakf deed and the same is under challenge.
13.The core points that are to be decided are that:
(1)whether the order passed by the Wakf Tribunal to hold election by following rule of succession as stated in Wakf Deed is sustainable in law?
11/18
https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 (2)whether the direction by the Wakf Tribunal to make correction in the entry under the proforma regarding rule of succession is sustainable in law?
14.After perusal of the records and the relevant provisions of the Wakf Act, the Waqf Board has to administer the Waqf as per Section 32 of the Waqf Act and by virtue of the waqf deed, the Waqf Board has to appoint Muthavallis in the said manner and not otherwise. The custom and usage also has been as stated above. Therefore only the Muthavallis who have been managing the Waqf as per the waqf deed being the legal heirs of the erstwhile Muthavallis alone are entitled to manage the Waqf. Hence the application filed in O.A.No.73 of 2019.
15.It is needless to say that as per Section 63 of the Waqf Act 1995, the Tamil Nadu Waqf Board is entitled to appoint any person to act as the Muthavalli for limited period based on certain conditions. In this case, case as per the waqf deed dated 21.04.1948, the Waqf has to be administered as provided under Section 32 of the Waqf Act 1995.
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16.The entire dispute arose in view of the fact that as per Waqf deed the rule of succession to the office of the Muthavalli to the above said Waqf is hereditary whereas in the proforma report it is mentioned that “Elected by the Muslim Jamath by Custom”.
17.As stated supra the Waqf is to be administered in terms of waqf deed in Doc.No.1340/1948 and on a perusal of the said document it reveals the fact that the Wakif while creating Waqf also appointed trustees and also stipulated conditions for administration of the Waqf. The waqf deed also provide for filling up of vacancy in the post of Muthavalli and how the successor trustee or Muthavalli to be appointed.
18.As per the waqf deed the Trustees or muthavallis, as the case may be, before they vacating office, nominate his successor and where there is no such nomination the right to nominate such trustee or Muthavallis shall vest in the Wakif, her heirs and successors provided that on failure of the Wakif making such nomination within six months from the occurrence of such vacancy the surviving Trustee Muthavalli shall be entitled to nominate any person to fill in the said vacancy.
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19.The proforma report of the Waqf states the rule of succession to the office of the Muthavalli is elected by the Muslim Jamath by custom.
20.The Waqf Board is having power of superintendence over all the Waqfs under Section 32 of the Waqf Act. While exercising that power it should adhere to the deed of Waqf custom and usage etc. The relevant portion of Section 32 of the Waqf Act, 1995 reads as under:
“Provided that in exercising its powers under this Act in respect of any [waqf], the Board shall act in conformity with the directions of the [waqf], the purposes of the [waqf] and any usage or custom of the [waqf] sanctioned by the school of Muslim law to which the [waqf] belongs.”
21.The rule of succession stated in the proforma maintained in the officer of the second respondent/Waqf Board has created problem and the outsiders also wanted to participate in the administration of the Waqf by reading the proforma. The proforma is only registration of particulars of the Waqf. If the rule of succession is wrongly mentioned, the same cannot be taken advantage to alter the line of actual succession to the office prescribed in the Waqf 14/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 deed.
22(a).When there is conflict between the proforma and the recital in the waqf deed, the letter viz., Waqf deed alone shall prevail. The Waqf is to be administered as per the tenets of the deed of Waqf.
22(b).According to the petitioner the Waqf Board has appointed the adhoc committee consisting of the legal heirs of the Muthavalli and only one person is outsider. The Waqf was administered so for in accordance with the direction given by the Waqif in the Waqf deed.
23(a).Thus, I find that the custom and usage followed in administering the wakf by following the direction given by the wakf deed. Therefore, the order passed by the Wakf Tribunal on similar line is legally sustainable and the same is in accordance with law.
23(b).As observed earlier, the rule of succession stated in the proforma is runs contrary to the direction given in the wakf deed dated 21.04.1948. No doubt, it is true that in interregnum period 15/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 due to certain problem, that is arised in the administer as a interim manager, an interim committee or Adhoc Committee was constituted and managing the Wakf.
24.Taking into consideration the recital in the waqf deed, the Wakf Tribunal has rendered the following finding:
“The Waqf has to be administered in accordance with the Waqf deed. The Waqf Board also cannot frame any rules for administration of the Waqf in contradiction to the tenets of Waqf deed. Therefore the Waqf Board has to amend or correct the rule of succession in the proforma in terms of the Waqf deed so that the issue will be settled once and for all. Hence this Tribunal directs the Waqf Board the 1 st respondent herein to amend the rule of succession in the proforma in accordance with the Waqf deed.”
25.This Court finds that under Section 41 of the Wakf Act, 1995, the Wakf Board is empowered to amend the register maintained by it, whereby, power was given to pass registration of the wakf and also amend the register. Furthermore, a direction issued by the Wakf Triunal to the Wakf Board to amend the proforma in terms of the wakf deed cannot be termed as illegal or irregular. When there is a conflict between the proforma maintained 16/18 https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3685 of 2019 by wakf Board and the recital in the wakf deed, it is needless to say that wakf deed alone shall prevail as the will and wish of the waqif is supreme. Both the points are answered accordingly and held against the petitioner herein.
26.Hence, this Court find that the order passed by the Wakf Tribunal in the said O.A.No.73 of 2019 is sustainable in law and the same does not suffer from any procedural irregularity or illegality, does warranting interference by this Court in this regional jurisdiction under Article 227 of the constitution of India.
27.In this view of the matter, this Civil Revision Petition dismissed and the order passed by the Tamil Nadu Wakf Tribunal at Chennai in O.A.No.73 of 2019, dated 05.09.2019, is hereby confirmed and the interim observation made on 08.12.2020 is hereby stands vacated. Consequently, connected Miscellaneous Petition is closed. No costs.
01.02.2021
Index : Yes
Internet : Yes
dua
Note: Issue order copy on 04.02.2021
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https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.3685 of 2019
RMT.TEEKAA RAMAN. J.
dua
To
1.The Chairman,
The Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
2.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
3.The Adhoc Managing Committee,
Sunguvarchatram Ahle Sunnathval Jamath Jamia Masjid, Bengaluru Main Road, Thirumangalam (Madura), Sunguvarchatram, Sriperrumbudur Taluk, Kancheepuram District.
Pre-Delivery Judgment in C.R.P.(PD).No.3685 of 2019 and C.M.P.No.24222 of 2019 01.02.2021 18/18 https://www.mhc.tn.gov.in/judis/