Madras High Court
Tamil Nadu Wakf Board vs A.Sadhik Ali on 10 March, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.03.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN C.R.P.(PD)No.3347 of 2010 and M.P.No.1 of 2010 1.Tamil Nadu Wakf Board, rep.by by its Chairman, No.1, Jaffar Syrang Street, Vallal Seethakadhi Nagar, Chennai-600 001. 2.The Chief Executive Officer, Tamil Nadu Wakf Board, No.1, Jaffar Syrang Street, Vallal Seethakadhi Nagar, Chennai-600 001. 3.The Superintendent of Wakfs, Cuddalore, 512, Gandhi Road, Panruti. : Petitioners/ Respondents 1 to 3 Vs. 1.A.Sadhik Ali 2.A.Hussain : Respondents 1 & 2/ Petitioners 3.M.B.Aziz Khan 4.B.Ibramsa @ Moosa : Respondents 3 & 4/ Respondents 4 & 5 Civil Revision under Article 227 of the constitution of India praying to strike-off the Wakf Original Petition in O.A.No.2 of 2009 on the file of the Wakf Tribunal (Subordinate Court), Cuddalore. For Petitioners : Mr.M.Mohamed Riyaz For Respondents : Mr.Srinath Sridevan 1 & 2 For Respondents : 3 and 4 O R D E R
The present civil revision petition is filed seeking to strike-off the proceedings initiated by the respondents 1 and 2 herein before the Wakf Tribunal (Subordinate Court), Cuddalore, in O.A.No.2 of 2009. The said Original Application has been filed by the respondents 1 and 2 herein against the petitioners and respondents 3 and 4 herein under Section 83(2) of the Wakf Act, 1995 (hereinafter referred as "the Act"), for the following reliefs.
"(1)decree that the 1st respondent Wakf Board is bound to implement and enforce the terms of the Scheme Decree in O.S.No.57/1920 as amended in the matter of appointment of Muthavallis for the Petitioner Pallivasal, before appointing an Executive Officer;
(2)pass a decree for Mandatory Injunction to appoint the Hereditary Muthavalli from Found Family, and expedite the process of election to the post of two other Muthavallis;
(3)consequentially pass a decree for a permanent Injunction restraining the implementation of the Resolution No.18/2008; and further Order of the 2nd respondent in Proceedings No.13529/98/Cuddalore/Aa.5 dated 12.2.2009 appointing the 3rd respondent as the Executive Officer and further restraining the 3rd respondent from taking over and managing the Pallivasal or interfering in the management and administration of the Lalkhan Pallivasal, Chidambaram - by Respondents 4 and 5."
2.The case put-forth by the respondents 1 & 2 herein in their petition under Section 83(2) of the Act is set out hereunder.
(a)They are the permanent residents of Chidambaram Town. There is a Pallivasal, by name Lalkhan Pallivasal, situated at Chidambaram Town. The said Pallivasal is governed by a Scheme Decree framed by the Subordinate Judge, Cuddalore in O.S.No.57/1920 and later the same was transferred to the file of Subordinate Judge, Chidambaram. In the above suit, the Tamil Nadu Wakf Board filed an interlocutory application in I.A.No.268/1972 before the Sub-Court, Chidambaram, praying to forward the scheme decree to it. The said application was allowed. As per the terms of the Scheme Decree, the Pallivasal shall be managed by three Muthavallis and out of them, two Muthavallis are to be elected by the eligible voters belonging to that Mohallah and another Muthavalli should be nominated from the descendant of the family of the Founder.
(b)The Wakf Board in the year 1980 recognized (1)M.B.Aziz Khan - Hereditary Muthavalli, (2) M.A.Mohamed Junaid Khadhri - Elected Executive Trustee and (3)Janab B.Ibramsa @ Moosa - Elected Trustee, in terms of the Scheme Decree. After the death of M.A.Mohamed Junaid Khadhri in the year 2002, the Wakf Board, by its order dated 15.10.2004, recognized the continuance of the Hereditary Trustee Azizkhan and the Elected Trustee B.Ibramsa @ Moosa). The Board also ordered to conduct election. However, the election was not conducted in view of the stay granted by the Court.
(c)They came to know, by an order copy and notice affixed in the Notice Board of the Pallivasal that the hereditary Muthavalli and the other trustees were removed and the Superintendent of Wakf Board, Cuddalore, was appointed as the Executive Officer of the Pallivasal. It transpires that on the basis of the complaint made by one Rahamathullah and another, such action was taken by the Wakf Board. There is no reason to appoint an Executive Officer to the Pallivasal, since the trustees so appointed were performing their duties properly and in an efficient manner.
3.On the above pleadings, the respondents 1 and 2 have initiated proceedings before the Wakf Tribunal referred to above. As stated already, the petitioners herein have come up with the present civil revision petition to strike off the proceedings initiated by respondents 1 and 2 before the said Tribunal.
4.The learned counsel appearing for the petitioners contended that
(i)the proceedings initiated by respondents 1 and 2 before the Wakf Tribunal is not valid in law. An appeal remedy is available under Section 65(2) of the Act.
(ii)The Tribunal has no power to consider the notification published under Section 65(1) of the Act. Hence, the proceedings initiated by respondents 1 and 2 herein is a clear abuse of process of law.
(iii)When the aggrieved party themselves have already filed an appeal before the State Government as envisaged under Section 65(2) of the Act, to circumvent the same or in order to help the trustees so removed, the respondents 1 and 2 herein have initiated the proceedings before the Wakf Tribunal and hence it is a clear abuse of process of law which cannot be entertained.
5.Learned counsel appearing for the petitioners has relied on the following decisions of the Hon'ble Supreme Court as well as this Court in support of his contentions.
(i)Appeal (Civil) No.6110/2003, decided on 07.08.2003, by the Supreme Court.
(ii)Writ C.A.No.614/1998, dated 04.02.1998, by the Supreme Court.
(iii)2010 (2) CTC 699 - Tamil Nadu Wakf Board v. Janab K.S.M.A.Mohamed Mansoor.
(iv)C.R.P.(PD) No.1487 & 1488 of 2000, decided on 10.01.2010, Madras High Court.
(v)W.P.Nos.7378/2004, etc. batch, decided on 05.01.2008 by the Madras High Court.
6.On the other hand, the learned counsel appearing for respondents 1 and 2 contended that
(a)When an alternative remedy is available to the petitioners, namely that they can approach the Tribunal itself under Order VII, Rule 11 CPC to reject the proceedings initiated by respondents 1 and 2 herein, they cannot approach this Court by filing civil revision petition to strike-off the proceedings initiated by respondents 1 and 2.
(b)Even assuming that the proceedings initiated by respondents 1 and 2 before the Tribunal is not valid, in view of Section 65(2) of the Act, the reliefs that have been sought for by respondents 1 and 2 in O.A. before the Tribunal, particularly reliefs 1 and 2, can be maintained and have to be maintained only before the Tribunal and only with regard to prayer No.3, it could be contended on behalf of the petitioners that the same cannot be maintained before the Tribunal and has to be agitated before the Government by filing an appeal under Section 65(2) of the Act. Further adding, it is contended by the learned counsel appearing for respondents 1 and 2 that there can be no partial rejection of plaint. In support of this contention, learned counsel for respondents 1 and 2 relied on the following judgments.
(i)AIR 2006 SC 1828 - Mayar (H.K.) Ltd. and others vs. Owners and Parties, Vessel M.V.Fortune Express and Others.
(ii)2007(6) MLJ 1813 - Saraswathy Bus Service rep.by its Managing Partner, M.Ravichandran vs. Minor M.Cibiraj rep.by his next friend M.Jayanthi and M.Jayanthi.
(iii)(1982) 3 SCC 487 - Roop Lal Sathi v. Nachhattar Singh Gill.
(c)A plaint can be rejected only under Order VII Rule 11 CPC on certain grounds, namely (i)if the plaint has not been valued properly and that in spite of the direction by the trial court to pay deficit stamp duty, not paying the same. (ii)If no cause of action arises, and (iii) if the suit is barred by any law. Since none of the above exigencies expressed are available, the petitioners herein cannot contend that the proceedings initiated by the respondents 1 and 2 before the Wakf Board have to be struck-off.
(d)The trustees appointed cannot be removed, except for the reasons set out in Section 64 of the Act.
(e)On removal of Muthavallis, an appeal is provided before the Tribunal against such an order of removal.
7.I have carefully considered the submissions made by the learned counsel appearing for the petitioners and respondents 1 and 2.
8.The first and foremost submission made, namely whether the proceedings initiated by respondents 1 and 2 before the Wakf Tribunal is maintainable or not, has to be decided at the first instance. The respondents 1 and 2 herein have filed O.A.No.2/2009 before the Wakf Tribunal (Sub-court), Cuddalore, not only challenging the resolution of the 1st petitioner, dated 18.11.2008, but also the order of the 2nd petitioner appointing the 3rd petitioner as Executive Officer for taking over and managing the pallivasal and for other incidental reliefs. The respondents 1 and 2 have also sought for a decree that the Wakf Board is bound to implement and enforce the terms of Scheme Decree in O.S.No.57/1920 as amended in the matter of appointment of Muthavallis for the Pallivasal and also sought for a mandatory injunction to appoint the Executive Muthavalli from the founders family.
9.Section 65 of the Act deals with assumption of direct management of certain wakfs by the Board. It would be useful to extract the said provision, which reads as under:
65.Assumption of direct management of certain wakfs by the Board.(1)Where no suitable person is available for appointment as a mutawalli of a wakf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling up of the vacancy in the office of a mutawalli is prejudicial to the interests of the wakf, the Board may, by notification in the Official Gazette, assume direct management of the wakf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notification.
(2)The State Government may, on its own motion or on the application of any person interested in the wakf, call for the records of any case for the purpose of satisfying itself to the correctness, legality or propriety of the notification issued by the Board under sub-section (1)and pass such orders as it may think fit and the orders so made by the State Government shall be final and shall be published in the manner specified in sub-section (1).
(3)As soon as possible after the close of every financial year the Board shall send to the State Government a detailed report in regard to every wakf under its direct management giving therein
(a)the details of the income of the wakf for the year immediately preceding the year under report;
(b)the steps taken to improve the management and income of the wakf.
(c)the period during which the wakf has been under the direct management of the Board and explaining the reasons as to why it has not been possible to entrust the management of the wakf to the mutawalli or any committee of management during the year; and
(d)such other matters as may be prescribed.
(4)The State Government shall examine the report submitted to it under sub-section (3), and after such examination issue such directions or instructions to the Board as it may think fit and the Board shall comply with such directions or instructions on receipt thereof.
10.The 1st petitioner has taken direct management of the wakf in question and appointed the 3rd petitioner as the Executive officer to take over the management of the pallivasal. As per sub-section 2 of Section 65, any party aggrieved over the said action of the Wakf Board can approach the State Government by filing an appeal. In fact, the aggrieved party, namely one B.Ibramsa @ Moosa, the 4th respondent herein, has approached the Government by filing an appeal on 26.03.2009 as provided under Section 65(2) of the Act. When the aggrieved party himself has filed an appeal before the Government as envisaged under Section 65(2) of the Act, respondents 1 and 2 herein, styling themselves as worshippers of the pallivasal in question, are trying to challenge the action of the Board by instituting proceedings before the Tribunal. The reliefs that have been sought for by respondents 1 and 2 herein before the Wakf Tribunal will amply establish that they are trying to circumvent the entire proceedings initiated by the Wakf Board and are trying to help the trustees who were holding the management of the pallivasal. When the aggrieved party himself has approached the Government by way of filing an appeal, respondents 1 and 2, so styling themselves as worshippers, cannot initiate proceedings before the Tribunal.
11.The next question that arises for consideration is whether the proceedings initiated by respondents 1 and 2 before the Tribunal under Section 83 of the Act is justifiable and valid. Section 83 of the Act no doubt contemplates that for determination of any dispute, question or other matters relating to a wakf or its property, the Tribunal so constituted, namely Wakfs Tribunal, could be approached. But, however, the further question remains that whether the order of the Wakf Board in taking over or assuming direct management of the wakf would also require to be agitated before the Wakf Tribunal as provided under Section 83 of the Act. While considering the said issue, I am of the considered view that to challenge the action of the Wakf Board in assuming direct management of any wakf as contemplated under Section 65(1) of the Act, anybody who is aggrieved over such order of the Wakf Board has to prefer an appeal before the State Government as provided under Section 65(2) of the Act. In such circumstances, I am of the considered view that the respondents 1 and 2, if at all aggrieved over the order of the Wakf Board in assuming direct management of the wakf, have to approach the State Government by filing an appeal as envisaged under Section 65(2) of the Act.
12.The next contention of the learned counsel appearing for the respondents 1 and 2 is that even assuming that alternative remedy is available by way of filing an appeal before the Government as provided under Section 65(2) of the Act, still the respondents 1 and 2 are justified in approaching the Wakf Tribunal. He has further contended that alternative remedy cannot be put against respondents 1 and 2. I am unable to accept the said contention of the learned counsel for the respondents 1 and 2. When different authorities are created by a same statute to exercise their respective functions, such authorities should and must exercise their functions within the four corners of the statute without usurping the jurisdiction of the other. In the case on hand, as stated already, against the notification made in the official gazette at the instance of the Wakf Board assuming direct management of the wakf, a clear remedy of filing an appeal before the State Government is provided. In such circumstances, a party aggrieved over the said notification has to approach the State Government by filing an appeal and he cannot invoke the provisions under Section 83 of the Act by taking proceedings before the Wakf Tribunal. It was so held by this Court and the same is reported in 2010 (2) CTC 699 - Tami Nadu Wakf Board v. Janab K.S.M.A.Mohamed Mansoor.
13.The learned counsel appearing for the petitioners contended that by invoking the provision under Section 83 of the Act by-passing the provisions of Section 65(2) of the Act, the respondents 1 and 2 are attempting to abuse the process of the Court. In this connection, he relied on the decision of the Apex Court in C.A.No.614 of 1998, decided on 04.02.1998. It would be useful to extract certain passages from the said decision.
"Under Order 6 Rule 16, the Court may at any stage of the proceedings, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure. (15th Edition, Volume II, page 1179 note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of Court on the basis of what is stated in the plaint.
The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the court" thus. "This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. .... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
...... A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. ...".
14.The learned counsel for the petitioners has also relied on the decision of the Honble Apex Court rendered in Appeal (civil) No.6110/2003, decided on 07.08.2003, wherein the Apex Court has held as follows:
"(4)Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.
....
(7)The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis."
15.In CRP (PD) Nos.1487 and 1488 of 2010, decided on 10.11.2010, this Court has held as follows.
"In the judgment reported in 1998(3) SCC 573 in K.K.Modi v. K.N.Modi and others, the Hon'ble Supreme Court has dealt with the abuse of the process of the Court which is as follows: "Under Order 6, Rule 16, the Court may at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Power under Clause (c) of Order 6, Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court, especially, where the proceedings are absolutely groundless. The Court, then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of the Court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding." Further, in the judgment reported in 2003(3) M.J.J. 566 in K.K.Swaminathan v. Srinivasagam, this Court has dealt with re-litigation, which is held as follows: -
"......Thus, exercising the supervisory jurisdiction conferred on the High Court under Section 115, C.P.C., it is just and necessary that the plaint in O.S.No.2473 of 1996 to be ordered to be struck off. In the circumstances of the case, it is also necessary to direct the revision petitioner to pay the costs of the suit to the respondent."
..... It is true that the jurisdiction of the Trial Court cannot be bypassed in a routine manner. Normally, the parties should be directed to pursue the statutory remedy available to them before availing the Constitutional remedy. However, in extraordinary circumstances, when it was demonstrated that there was flagrant violation of the principles of law, or abuse of process of Court or the Lower Court was accused of dereliction of duty of grave nature, the parties would be entitled to invoke the jurisdiction under Article 227 of the Constitution of India. ...... From the above judgments it has been made clear that the Court should not be used to entertain vexatious suit and it amounts to an abuse of process of law and such proceedings must be stopped at the initial stage. ...."
16.Yet another decision of this Court relied on by the learned counsel for the petitioners is dated 15.01.2008 made in W.P.No.7378/2004 etc. batch. paragraph No.7 of the said decision is usefully extracted hereunder.
"7.A conjoint reading of the proviso along with the provisions along with the other provisions makes it abundantly clear that after the coming into force of the 1995 Act, the first respondent who has been exclusively invested with the powers can deal with all the existing wakf as well as wakfs to be created in future. Having regard to the explanation contained in Sub Section 1 of Section 32 of the 1995 Act, even the wakfs governed by the provisions of any Civil Court decree shall vest with the first respondent Board automatically. Under such circumstances, there was no scope for the Principal Sub Court, Cuddalore to have exercised its powers, merely based on the decree dated 14.8.1959 passed in O.S.No.53 of 1952 as confirmed in A.S.No.5 of 1956. Any person who is interested in the wakf wish to seek for any appointment of trustees for the wakf should have only approached the first respondent Board even if it were to be under the scheme decree. Therefore, the application filed in I.A.No.104 of 2004 in O.S.No.53 of 1952 was not maintainable in law."
17.Thus, a plethora of judgments relied on by the learned counsel for the petitioners will establish that if there is an abuse of process of law, the courts are not powerless to strike-off the plaint.
18.In the case on hand, as stated already, when the aggrieved party himself has approached the Government by filing an appeal under Section 65(2) of the Act, the respondents 1 and 2 herein, styling themselves as worshippers of the Pallivasal, cannot circumvent the same by approaching the Tribunal. Thus, I am of the considered view that respondents 1 and 2 herein, knowing fully that the notification issued at the instance of the Wakf Board taking over the management itself, have approached the Wakf Tribunal. In view of the same, the proceedings initiated by respondents 1 and 2 before the Tribunal have to be struck-off.
19.The learned counsel appearing for respondents 1 and 2 relied on the decisions reported in (i)AIR 2006 SC 1828 ; (ii)2007(6) MLJ 1813; and (iii)(1982) 3 SCC 487 cited supra and contended that there cannot be any partial rejection of the plaint. I am of the considered view that the said contention of the learned counsel for respondents 1 and 2 cannot be disputed. Respondents 1 and 2 have couched the reliefs in their proceedings before the Tribunal in such a way that they try to bring the matter before the Wakf Tribunal. In effect, the reliefs that have been sought for by respondents 1 and 2 before the Wakf Tribunal is only questioning the notification issued at the instance of the Wakf Board taking over the management in itself. In view of the above reasoning, I am unable to accept the contention of the learned counsel for respondents 1 and 2 that the petitioners herein are seeking to strike-off the proceedings partially.
20.Thus, summing-up the entire discussions made above, I am of the considered view that the proceedings initiated by respondents 1 and 2 herein before the Wakf Tribunal (Sub-Court), Cuddalore, in O.A.No.2 of 2009 is liable to be struck off and accordingly the same is struck off. The civil revision petition stands allowed. No costs. Connected M.P.No.1 of 2010 is closed.
gb To:
The Wakf Tribunal, (Subordinate Judge), Cuddalore