Madras High Court
Tirupur Khaderpet Ahlesunnath Jamath vs The Chairman on 13 July, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.14306 of 2022 &
CRP(PD)Nos.1801 & 1808 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 28.06.2022
Pronounced On 13.07.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.14306 of 2022
and WMP.Nos.13538 & 13539 of 2022
and CRP(PD)Nos.1801 and 1808 of 2022
and CMP.Nos.9193 & 9221 of 2022
W.P.No.14306 of 2022
Tirupur Khaderpet AhleSunnath Jamath,
Masjid & Madrasa ParibalanaSabai,
Rep.by its President,
A.Salim @ A.Abdul Rahman. .. Petitioner
Vs.
1.The Chairman,
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.
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 34
W.P.No.14306 of 2022 &
CRP(PD)Nos.1801 & 1808 of 2022
3. The Executive Officer,
Wakf Inspector,
Ahlesunnath Jamath Masjiid and
Madrasa Wakf,
Khaderpet, Tirupur 641 601.
4. The Superintendent of Wakf,
Coimbatore Zone.
5. The Wakf Inspector,
Coimbatore Zone. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorarified Mandamus, calling for the entire
records in Ji.S.No.342/Va/Aa/Kavai/2022 aed 07.05.2022 on the file of
the 3rd respondent and quash the same, consequently directing the
respondents to follow the Waqf Act, while taking any steps against
Khaderpet Ahela Sunnath Jamath Masjith.
For Petitioner : Mr. R.Nalliyappan
for Mr/K.Sudhakar
For Respondents : Mr.S.Haja Mohideen Gisthi
Standing Counsel.
CRP(PD)No.1801 of 2022
1.The Chairman,
Tamil nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai 600 001.
______________
https://www.mhc.tn.gov.in/judis
Page No 2 of 34
W.P.No.14306 of 2022 &
CRP(PD)Nos.1801 & 1808 of 2022
2.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai 600 001. .. Petitioners
vs.
1. Tirupur Khaderpet AhleSunnath Jamath,
Masjid & Madrasa ParibalanaSabai,
Rep.by its President,
A.Salim @ A.Abdul Rahman.
2.R.Syed Haroon .. Respondents
Prayer :Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the fair and decretal order dated 26.05.2022 of the
Tamil Nadu Waqf Tribunal, Chennai in I.A.No.250 of 2022 in
O.A.No.237 of 2019.
For Petitioners : Mr.S.Haja Mohideen Gisthi
Standing Counsel.
For R1 : Mr. R.Nalliyappan
for Mr/K.Sudhakar
______________
https://www.mhc.tn.gov.in/judis
Page No 3 of 34
W.P.No.14306 of 2022 &
CRP(PD)Nos.1801 & 1808 of 2022
CRP(PD)No.1808 of 2022
R.Syed Haroon .. Petitioner
vs.
1. Tirupur Khaderpet AhleSunnath Jamath,
Masjid & Madrasa ParibalanaSabai,
Rep.by its President,
A.Salim @ A.Abdul Rahman.
2. The Chairman,
Tamil nadu Wakf Board,
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. .. Petitioners
Prayer. : Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decretal order dated
26.05.2022 of the Tamil Nadu Waqf Tribunal, Chennai in I.A.No.250 of
2022 in O.A.No.237 of 2019.
For Petitioner : Mr.N.A.Nissar Ahmed
For R1 : Mr.R.Nalliyappan
for Mr.K.Sudhakar
______________
https://www.mhc.tn.gov.in/judis
Page No 4 of 34
W.P.No.14306 of 2022 &
CRP(PD)Nos.1801 & 1808 of 2022
COMMON ORDER
By this common order the above writ petition and the respective C.R.Ps are being disposed.
2. W.P No 14306 of 2022 has been filed by Tirupur Khaderpet Ahle Sunnath Jamath, Masjid & Madrasa Paribalana Sabai (hereafter referred as the Writ Petitioner) for the issuance of a Writ of Certiorarified Mandamus to call for the records of the third respondent, the Chief Executive Officer, Tamil Nadu Waqf Board in Ji.S.No.342/Va/Aa/Kovai/ 2022 dated 07.05.2022 and quash the same.
3. C.R.P.No.1801 of 2022 and C.R.P 1808 of 2022 have been filed by the Chairman, The Tamil Nadu Waqf Board and by one R. Syed Haroon (a member of the Waqf) to set aside the order dated 26.05.2022 of the Tamil Nadu Waqf Tribunal, Chennai in I.A.No.250 of 2022 in O.A.No.237 of 2019 in so far it seeks to restore the control of the Waqf back to the Writ Petitioner.
______________ https://www.mhc.tn.gov.in/judis Page No 5 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
4. By the impugned communication dated 07.05.2022, the third respondent Executive Officer (Waqf Inspector) in W.P.No.14306 of 2022 stated that he was taking charge over the management of the petitioner Waqf in view of the dismissal of O.A.No.237 of 2019 on 04.05.2022 filed by the Writ Petitioner.
5. I.A No 250 of 2022 in O.A 237 of 2019 filed by the Writ Petitioner was allowed by the Tamil Nadu Waqf Tribunal vide impugned order dated 26.05.2022 restoring O.A. No. 237 of 2019 to its file of Tribunal with the following observations ;-
As already discussed, the reason stated by the petitioner appears to be a Sufficient cause. In view of the above discussions, this application is allowed and (th*)e injunction granted by the Hon'ble High Court is revived and the 1"
respondent (which has*) the taken the management during the dismissal period is directed to handover the management to the committee or management who were looking after the waqf on the date of dismissal of main application.
22. In the result, this application is allowed with a direction to both side to co-operate for disposal of main application on a day to day basis.
______________ https://www.mhc.tn.gov.in/judis Page No 6 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
6. The above decision is challenged in CRP.Nos.1801 & 1808 of 2022. Earlier, I.A No 531 of 2021 was filed by the petitioner in C.R.P No 1808 of 2022 to implead himself as a respondent in O.A 237 of 2019 filed by the writ petitioner against the order dated 08.12.2014 of the Waqf Board. The aforesaid I.A No 531 of 2021 was allowed by the Tribunal on 04.03.2022.
7. The Writ Petitioner thus filed C.R.P.No.986 of 2022. However, the writ petitioner was unable to secure any interim order from this court.
8. Since the Writ petitioner failed to file an amended copy of the Petition in O.A 237 of 2019 pursuant to the order dated 04.03.2022 in I.A No 531 of 2021 of the Waqf Tribunal, O.A.No.237 of 2019 was dismissed by the Waqf Tribunal on 04.05.2022. CRP.No.986 of 2022 was later dismissed as infructuous on 28.06.2022 by this Court in view of the subsequent development by a separate order. ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
9. Facts on record show that a Show Cause Notice dated 05.09.2014 was issued by the Waqf Board to the Managing Committee of the petitioner Waqf and called upon the Managing Committee to give a detailed explanation for the charges framed, to which a detailed reply on 04.10.2014 was sent.
10. On 16.11.2014, the shops in the Commercial Complex of Waqf were locked and sealed by the Executive Officer of the Waqf Board. The Waqf Board thereafter conducted an enquiry on 26.11.2014 for taking over the direct Management of the Petitioner Waqf under Section 65 of the Waqf Act, 1965.
11. The Writ Petitioner thus filed O.A.No.15 of 2014 on 28.11.2014 before the 1st Assistant City Civil Court, Chennai to restrain the official respondents from taking action under Section 65 of the Waqf Act 1995, and also from interfering with the day to day management of the Waqf.
______________ https://www.mhc.tn.gov.in/judis Page No 8 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
12. Meanwhile the Waqf Tribunal was constituted in Chennai. Thus, O.A No 15 of 2014 which was filed before the First Assistant City Civil Court, Chennai was thus transferred to the Waqf Tribunal and was renumbered as O.A No 237 of 2019.
13. Meanwhile, a resolution dated 26.11.2014 was passed by the Waqf Board and Gazetted vide Notification No. VI - 3(a)/119/2014 dated 08.12.2014 to take direct management of the Waqf passed under Section 65 of the Act. The said Text of the aforesaid notification reads as follows:-
NOTIFICATIONS BY HEADS OF DEPARTMENTS, ETC. GENERAL NOTIFICATIONS TAMIL NADU WAQF BOARD, CHENNAI Taking Over of Tirupur KhaderpetAhleSunnathJamath Masjid and Madrasa Waqf, Tirupur District, under Direct Management [(G.S.342/TPR (CBE).] (Rc.No.7488/06/B3/ TPR & WEA.2/14/E5/TPR.) No.VI-3(a)/119/2014.
In exercise of powers conferred as per the provisions under section 65(1) of the Waqf Act 1995, as amended by Act 27/2013 the Tamil Nadu Waqf Board in its resolution in item No.76/14 & 102/14 in RC. No. 7488/06/B3/TPR & ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 WEA.2/14/E5/TPR dated: 26.11.2014 has ordered to take over the Tirupur, KhaderpetAhleSunnathJamath Masjid and Madrasa Waqf, Tirupur District under the direct Management of the Tamil Nadu Waqf Board for a period of one year from the date of resolution dated 26.11.2014 and to appoint the Waqf Inspector, Tirupur as its Executiv e Officer.
A. MOHAMED MEERAN, District Revenue Officer (Incharge) / Chennai-600 001, Chief Executive Officer 8th December 2014
14. By an order dated 28.11.2014, the 1st Asst Judge City Civil Court, Chennai also granted an interim Injunction in I.A No 18242 of 2014 in O.A No 15 of 2014 and restrained the Waqf Board from assuming direct charge under Section 65 of the Waqf Act, 1965.
15 Precursor to these proceedings is the common order of this Court dated 26.07.2021 in a batch of W.Ps.
______________ https://www.mhc.tn.gov.in/judis Page No 10 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
16. W.P.No.31768 of 2014 in a batch of was filed by the writ petitioner herein Tirupur Khaderpet Ahela Sunnath Jamath Masjith, Waqf for the following relief:-
“Writ of Certiorarified Mandamus calling for the records from the first respondents from the first respondent in so far as it relates to the order passed in their proceeding in Na.Ka.No.7488/106/Aa- 3/Tiruppur dated 15.07.2014 in so far as it relates to newly constructed shops bearing numbers U-1 to U-12 (basement), G-1 to G-12 (Ground Floor) and F-1 to F-16 in the Shopping Complex situated in T.S. No. 197 bearing Door No.23, 24/21,22, Ghouse Sahib Street, Khaderpet, Tiruppur Taluk and District, quash the said order as void and unenforceable and without jurisdiction and forbear the respondents, their men, agents and subordinates or any one acting on their behalf from in any manner interfering with the possession, enjoyment and running of business, by the petitioners and their tenants in the shops bearing numbers U-1 to U-12 (basement), G-1 to G-12 (Ground Floor) and F-1 to F-16 in the Shopping Complex situated in T.S. No. 197 bearing Door No.23, 24/21,22, Ghouse Sahib Street, Khaderpet, Tiruppur Taluk and District”.
17. W.P.No.34634 of 2014 was also filed by the petitioner, Tirupur Khaderpet AhelaSunnath Jamath Masjith, Waqf for the following relief:-
______________ https://www.mhc.tn.gov.in/judis Page No 11 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 “Writ of Mandamus directing the respondents 5 to 8, from interfering with the management and administration of the petitioner Waqf and its properties, without a judicial order being passed by competent Court in respect of the affairs of the petitioner Waqf.”
18. W.P.No.22 of 2015 was also filed by the by Tirupur Khaderpet Ahela Sunnath Jamath Masjith, Waqf for the following relief:-
““Writ of Certiorari calling for the records from the respondents pertaining to Gazette Notification No.VI-3(a)/119/2014 dated 08.12.2014 and quash the same”.
19. Some of the tenants of the Petitioner Waqf had filed in W.P:No.30528 of 2014 for the following relief:
“Writ of Mandamus directing the respondents to stop illegal insisting to vacate the shops rented by the fourth respondent as per the order of the first respondent in favour of the petitioners herein of the land in T.S. No. 197 (Waqf Property) Shop Numbers New-II G10, UG2, UG5, UG1, UG3, G5 situated between GhouseSahip Street and Work Shop Street, Khader Pet, Tiruppur Town, Tiruppur Taluk, Tiruppur, Tiruppur District”.
______________ https://www.mhc.tn.gov.in/judis Page No 12 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
20. These writ petitions were disposed by a common order dated 26.07.2021 of this Court with the following observations:
“10. It is apparent that there are several disputes between the members of the Petitioner Mosque on the one hand and other Muslims members who have questioned the allotment of the shops to the members of the petitioner mosque. Apprehending disturbance of peace and tranquility, proceedings under Section 145 of Cr.P.C. has been initiated and the shops have been locked and sealed. The petitioner also raised various allegations as against the police officials and also impleaded them in their personal capacity as respondents 5 to 9 in WP No. 34634 of 2014, but those allegations were denied by the respondents 5 to 9 by stating that they have only attempted to pacify the simmering dispute between two factions and they have followed all the due process of law.
11. Be that as it may. The disputes involved in the present writ petitions require evidence, both oral and documentary. The Waqf Tribunal is seized of the matter and O.A. No. 15 of 2014 is pending before the Tribunal as against the order passed by the Chief Executive Officer of the Tamil Nadu Waqf Board. It is contended by the Chief Executive Officer of the Tamil Nadu Waqf Board that the Tribunal has no jurisdiction to decide the issues before it and that an application under Section 65 (2) of The Waqf Act ought to have been filed before the State Government and thus the Tribunal lacks jurisdiction. Thus, it is evident that the petitioner as well as the Chief Executive Officer of the Tamil ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 Nadu Waqf Board subjected themselves to the enquiry conducted by the Tribunal. Furthermore, the disputes, which are purely factual in nature cannot be gone into by this Court in these writ petitions. While so, it would be appropriate to direct the Tribunal to take up O.A. No. 15 of 2014 and dispose of the same after affording sufficient opportunity to the petitioner and other parties concerned in the case. The aforesaid exercise shall be completed by the Tribunal within a period of eight weeks from the date of receipt of a copy of this order. Till the disposal of O.A. No. 15 of 2014, interim order passed by this Court shall continue.
12. With the above direction, all the writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.”
21. It is the specific case of the Writ Petitioner that one of the disgruntled Jamathdar was eyeing for the property. Since, the period of the Managing Committee expired and thereafter a fresh election was held on 23.12.2013 and 21 members were elected. However, attempt was to destabilize the Petitioner Waqf. It is been further stated that though the said elections were also held in presence of the officials of the Waqf Board and was countersigned by Waqf Officers, an attempt was made to not only dislodge the elected body of the Petitioner Wakf but also to oust the tenants who were put to possession of the shops after construction of ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 commercial complex by the Petitioner Waqf.
22. Meanwhile, some of the tenants had also filed a suit, before the District Munsif, Tirupur for injunction to restrain the Committee(Waqf) from putting up construction of a New Commercial Complex. All the suits filed before the District Munsif were dismissed.
23. In addition to this the Waqf Board also sent a letter on 15.07.2014 to the Writ Petitioners (Waqf) to not lease out the newly constructed Commercial Complex property to any one. This was challenged in W.P No 31768 of 2021.
24. The Waqf Board appears to have filed W.P No 34574 of 2014 wherein it questioned the jurisdiction of the 1st Assistant City Civil Court, Chennai to entertain O.A.No.15 of 2014 to decide the issue in respect of the Waqf and Waqf property situated in Tirupur District. On 26.11.2014 the proceedings in O.A 15 of 2014 was stayed by this court in W.P No 34574 of 2014.
______________ https://www.mhc.tn.gov.in/judis Page No 15 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
25. It is the case of the Writ Petitioner that there were several encroachments over the Waqf Properties and since the Waqf properties were not yielding income therefore, the petitioner approached the official respondents to accord sanction for construction of a New Commercial Complex in the year 2013 by demolishing the old construction.
26. It is submitted that the lands occupied by various tenants who were in possession were requested to vacate from the Waqf Property to construct a new commercial complex and to rent out the same to them after construction.
27. The Writ Petitioner therefore approached the Waqf Board for sanction for construction of a Commercial Complex. It is submitted that the Waqf Board also granted sanction for constructing a commercial complex on 26.02.2013 with a specific direction to maintain separate bills and accounts.
28. The case of the Writ Petitioner is that the petitioner was able to ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 convince the tenants and also vacate them and also approached the Waqf Board for grant of funds for construction of a Commercial Complex. The Petitioner Waqf was however unable to start construction of the building due to lack of fund.
29. It is submitted that the Land (Waqf property) had fallen vacant and no development activities were carried out resulting in large scale encroachments.
30. Since the petitioner Waqf did not have adequate amount, it obtained non-refundable advance from each of the tenants who vacated the land and after completion of the Commercial Complex the possession of the shops were handed out to such of those tenants.
31. On behalf of the petitioner in C.R.P.No.1808 of 2022 who was impleaded in O.A No. 237 of 2019 pursuant to order dated 04.03.2022 in I.A No 531 of 2022, the learned Counsel Mr.N.A.Nissar Ahmed, submits that the impugned order dated 26.05.2022 of in I.A No 250 of 2022 of the Waqf Tribunal restoring the power back to the Writ Petitioner is contrary ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 to the law laid down in the following decisions:-
“ i. Janab.Abdul Ali Mohammed Vs. The Tamil Nadu Waqf Board, W.P.Nos.2170 and 6457 of 2011.
ii. Vareed Jacob Vs. Sosamma Geevarghese, 2004 (6) SCC 378, 2004 AIR (SC) 3992.
iii.Saranatha Ayyangar Vs. Muthiah Moopanar and Ors., AIR 1934 Madras 49.
iv. Bankim Chandra Vs. Chandi Prasad, AIR 1956 Patna 271”.
32. Mr.N.A.Nissar Ahmed, learned counsel for the petitioner submits that the said O.A.No.237 of 2019 itself was and is not maintainable as the Tribunal does not have jurisdiction and an appeal lies before the Government under Section 65(2). It is further submitted that the first respondent’s allegation that they had been elected on 23.12.2013 for a period of three years, though questionable has also expired in 2016 and therefore on this ground also the above O.A. had become infructuous.
33. It is further submitted that the Tribunal went wrong in not ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 seeing that when the main O.A. was dismissed for non prosecution and was not in existence, the revival of any interim order on restoration of the O.A. would not affect the action already taken by the Waqf Board during the time when the suit was not in existence and that consequently it cannot be said that such an action was illegal and in breach of the interim injunction.
34. The Tamil Nadu Waqf Board which is also the petitioner in CRP.No.1801 of 2022 is represented by Mr.S.Haja Mohideen Gisthi, learned Standing Counsel. He has relied on the following decisions:
“ i) Rajasthan Waqf Board Vs.Devki Nandan Pathak and Ors., 2017 (6) CTC 331.
ii) Board of Waqf, West Bengal and Another Vs. Anis Fatma Begum and Another, (2010) 14 Supreme Court Cases 588.
iii) Lallan Chaubey Vs. The State of Uttar Pradesh, (2010) 14 SCC 592”.
iv) Ahmedabad Municipal Corporation Vs. Lilaben Hirabedn, 2009 (4) SLR 282, 2008 (3) GujLH 250.
35. Mr.S.Haja Mohideen Gisthi, learned Standing counsel for the ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 Waqf Board submits that O.A.No.237 of 2019 had become infructuous as there is no further triable issue even on a prima facie view. It is further submitted that as on 09.05.2022, when the impugned fair and decretal order dated 26.05.2022 in I.A.No.250 of 2022 in O.A.No.237 of 2019 was passed, the Waqf Tribunal had no power to put the clock back while allowing I.A.No.250 of 2022 to restore O.A.No.237 of 2019 to its files for enquiry in view of the order dated 06.05.2022 in R.C.No.7488/06/B3/TPR of the Waqf Board . He further submits that O.A.No.237 of 2019 itself was not maintainable and thus the Waqf Tribunal committed an error in passing the impugned order, Mr.R.Nalliyappan the learned counsel for the Writ Petitioner submitted that CRPs were liable to be dismissed and the writ petition deserves to be allowed as the Waqf Board represented by its officers rushed to take direct management.
36. I have considered the arguments advanced by Mr.R.Nalliyappan the learned counsel for the Writ Petitioner, Mr.Nissar Ahmed, the learned counsel for the petitioner in C.R.P.No.1808 of 2022 and Mr.S.Haja Mohideen Gisthi, the learned counsel for the Waqf Board ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 which has filed CRP.No.1801 of 2022.
37. The writ petitioner was seeking for restoration of the status quo ante prior to the dismissal of O.A.No.237 of 2019 on 04.05.2022 in view of impugned order/communication dated 07/05/2022 of the Executive Officer/ Waqf inspector of the Waqf Board in his proceedings bearing reference No Ji.S.No.342/ Va/Aa/Kovai/2022 through order dated 26.05.2022 was passed in I.A No 250 of 2022.
38. There is no dispute regarding the restoration of O.A.No.237 of 2019 vide order dated 26.05.2022 in I.A.No.250 of 2022 and restoration of power back to the Writ Petitioner. Therefore, in my view, W.P.No.14306 of 2022 is liable to be dismissed. Nothing further requires to be adjudicated in W.P.No.14306 of 2022 .
39. Therefore, the surviving point for consideration in the two Civil Revision Petitions is whether interim order dated 06.01.2015 of this Court in W.P.No.22 of 2015 which was allowed to be continued till the disposal of O.A.No.237 of 2019 (formerly as O.A.No.15 of 2014) ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 pursuant to final order dated 26.07.2021 in W.P.Nos.30528, 34634 of 2014 and W.P.No.22 of 2015 stood revived or not in view of the restoration of O.A.No.237 of 2019 vide impugned order dated 26.05.2022 in I.A.No.250 of 2022?
40. Application for the restoration of O.A.No.237 of 2019 in I.A.No.250 of 2022 was filed in consonance with Order 9 Rule 13 of CPC by the Writ Petitioner. The Tribunal is deemed to be a civil court and has the same powers to be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order. In accordance to this, the Tribunal can also follows its own procedure. Section 83(5)&(6) reads as under Section :-
83:Constitution of Tribunals, etc.— (1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) The Tribunal shall be deemed to be a ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.
(7) xxx (8) xxxx (9) xxxx
41. As per Section 83(5) of the Waqf Act 1995, provisions of Civil Procedure Code will apply. Thus, the Waqf Tribunal is deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
42. Section 144 of CPC deals with restitution of orders of Court . Section 144 of CPC reads as under:-
144. Application for restitution.—(1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
Explanation.—For the purposes of sub-section (1), the expression “Court which passed the decree or order” shall be deemed to include,—
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order.
(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit. (2) No suit shall be instituted for the purpose of obtaining any restitution or ______________ https://www.mhc.tn.gov.in/judis Page No 24 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 other relief which could be obtained by application under sub-section (1).
43. Section 144 applies to a situation where a decree or an order is varied or reversed in an appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose.
44. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them. This is the law clarified by the Hon'ble Supreme Court recently in Bansidhar Sharma (since deceased) Represented by his Legal Representative vs. The State of Rajasthan and Others (2019) 19 SCC 701 ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
46. In Ayyangar Vs. Muthiah Moopanar and others, AIR 1934 Mad 49 : 1933 SCC OnLine Mad 143, this Court held that as a matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of the third party.
47. The above view was also followed by the Patna High Court in Bankim Chandra Vs. Chandi Prasad, AIR 1956 Pat 271 : 1956 SCC OnLine Pat 15, wherein, it has been held that orders of stay pending disposal of the suit are ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit and therefore, when the suit, dismissed for default, is restored by the order of the Court all ancillary orders passed in the suit shall revive, unless there is any other factor on record or in the order of dismissal to show to the contrary. This was also a matter under Order 39 of CPC. ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
48. The above view was confirmed by the Hon'ble Supreme Court in Vareed Jacob Vs. Sosamma Geevarghese and others, 2004 (6) SCC 378.
49. The Gujarat High Court in Ahmedabad Municipal Corporation, Ahmedabad Vs. Lilaben Hirabedn, 2008 SCC OnLine Guj 142 : (2008) 3 GLH 250, has taken a followed, wherein, it was held as under:-
“11. Even otherwise, even otherwise assuming that once the suit is restored and the ad-interim order would revive, in that case also, the further question which is required to be considered is that what will happen to the action which is already taken during the time when the suit was dismissed for non-prosecution and the same was not restored and thereafter the suit is restored. (single)
12. As per this court in such a situation where any action is already taken during the time when the suit is dismissed for non-prosecution and thereafter the suit is restored and if the contention of the respondent is accepted, the ad-
interim order would revive on restoration of the suit, in that case also, any action taken during the time when the suit was dismissed for non- prosecution and was not in existence, the said revival of ad-interim relief on restoration of the ______________ https://www.mhc.tn.gov.in/judis Page No 27 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 suit would not affect the action already taken during the time when the suit was not in existence and consequently it cannot be said that such an action was illegal and/or in breach of ad-interim order/injunction therefore, in the present case the action was taken when the suit was dismissed for non-prosecution and therefore, even if the contention and submission of the respondent that on restoration of the suit, ad-interim relief passed below notice of motion would automatically revive, is accepted, in that case also, as stated above, it will not affect any order passed by the Corporation when the suit was dismissed for non-prosecution and when the suit was not in existence Further, in the present case as stated above, neither there is any order passed by the Court to restore the suit nor even the delay in preferring the restoration application is condoned”.
50. This Court in Janab.Abdul Ali Mohammed and others Vs. The Tamil Nadu Waqf Board and others, vide order dated 25.07.2012 in W.P.No.2170 & 6457 of 2011, has held as under:-
“51. But the said doctrine cannot be extended to the extent of placing the Trustees who continue to discharge the functions beyond the period of their tenure on par with those whose tenure has not expired. Persons whose tenure of office has not expired, have a vested right to continue till the expiry of the tenure. It is that right which gets violated when they are removed from the office.
______________ https://www.mhc.tn.gov.in/judis Page No 28 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 But persons whose tenure had already come to an end, have no right to continue. Every minute of their continuance is at the mercy of the Board which appointed them. The moment another set of persons is appointed or the moment direct management is assumed, the Trustees who continue after the expiry of the tenure, may have to go out. It is on account of this distinction that I think the petitioners were not entitled to any notice or opportunity before the second part of the impugned order assuming direct management was passed”
51. In the case filed by the Waqf Board, it has been categorically held that if any person is aggrieved by the order of the Tribunal, such person has to work out remedy before the Waqf Tribunal.
52. The Waqf Board through its Chief Executive Officer attempted to take direct control of the Petitioner Waqf vide his proceeding dated 06.05.2022 bearing reference R.C. No. 7488/06/B3/TPR in view of the dismissal of O.A. No. 237 of 2019. He therefore directed the Executive Officer/Inspector of Waqf Board to assume charge of the Petitioner Waqf.
53. The Executive Officer/Inspector of Waqf Board in his communication dated 07.05.2022 bearing Reference Ji.S.No.342/Va/Aa/ ______________ https://www.mhc.tn.gov.in/judis Page No 29 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 Kovai/2022 informed the Writ Petitioner and the tenants that he was assuming charge of the Petitioner Waqf and thereby stating that only he was entitled to collect the rent and lease amount from the tenants of the Petitioner Waqf property. However, assumption of charge can be under section 65 only after the issuance of notification by Government under Section 65(1) of the Waqf Act, 1995.
54. Section 65(1) of the Waqf Act, 1995 reads as under:-
65. Assumption of direct management of certain 2 [auqaf] by the Board.— (1) Where no suitable person is available for appointment as a mutawalli of a 1 [waqf], 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 1 [waqf], the Board may, by notification in the Official Gazette, assume direct management of the 1 [waqf] 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.
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55. It is a well settled principle of law that where a statute provides for a thing to be done in a particular manner, then it has to be done in that particular manner, and in no other manner. This has been held by the Hon’ble Supreme Court in Chandra Kishore Jha vs. Mahavir Prasad, AIR 1999 SC 3558, Dhananjaya Reddy vs. State of Karnataka, AIR 2001 SC 1512 etc.
56. The Waqf Tribunal vide dated 26.05.2022, has correctly restored the power back to the Petitioner Waqf. Therefore, the purported assumption of power under the provision of Waqf Act, 1995 by the Officer of Waqf cannot be countenanced. As mentioned above, there is no scope for interference at this stage.
57. In the light of the above discussion, I am of the view that W.P.No.14306 of 2022 filed by the writ petitioner is liable to be dismissed as remedy therein has already been granted to the petitioner by the Waqf Tribunal vide order dated 26.05.2022 in I.A.No.250 of 2022 in O.A.No.237 of 2019.
______________ https://www.mhc.tn.gov.in/judis Page No 31 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022
58. The order restoring the power back to the writ petitioner vide above mentioned order dated 26.05.2022 which has been impugned both by the private party by Syed Haroon and by the Wakf Board also cannot be assailed as the interim order passed by the Tribunal and by this Court vide order dated 26.07.2021 in W.P.Nos.30528, 31768 & 34634 of 2014 and W.P.No.22 of 2015 while disposing the said Writ petitions were extended till the disposal of O.A.No.237 of 2019.
59. In view of the restoration of O.A.No.237 of 2019, the restoration of power back to the writ petitioner therefore cannot be assailed. The question as to whether the petitioner can continue to manage the affairs of the Waqf is a matter which is to be ultimately decided and answered by the Wakf Tribunal in O.A.No.237 of 2019 on way or the order.
60. Therefore, I do not find any merits in the present Civil Revision Petitions. The proceedings before the Wakf Tribunal has been partially delayed by the Wakf Board itself, in as much as W.P.No.34574 of 2014 was filed and it obtained interim stay of the proceedings before ______________ https://www.mhc.tn.gov.in/judis Page No 32 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 the Wakf Tribunal though the normal period of tenure of elected body would have come to an end in 2018.
61. Under these circumstances, W.P.No.14306 of 2022 is dismissed as infructuous, in view of the impugned order dated 26.05.2022 in I.A.No.250 of 2022 in O.A.No.237 of 2019 (formerly O.A.No.15 of 2014)
62. CRP.Nos.1801 and 1808 of 2022 are also dismissed. The Wakf Tribunal is directed to complete the proceedings in O.A.No.237 of 2019 (O.A.No.15/2014) and dispose the same, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
.07.2022
Index : Yes/No
Internet : Yes/No
kkd
______________
https://www.mhc.tn.gov.in/judis Page No 33 of 34 W.P.No.14306 of 2022 & CRP(PD)Nos.1801 & 1808 of 2022 C.SARAVANAN,J.
kkd To
1.The Chairman, 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 Executive Officer, Wakf Inspector, Ahlesunnath Jamath Masjiid and Madrasa Wakf, Khaderpet, Tirupur 641 601.
4. The Superintendent of Wakf, Coimbatore Zone.
5. The Wakf Inspector, Pre-delivery Common Order in Coimbatore Zone. W.P.No.14306 of 2022 and CRP.Nos.1801 & 1808 of 2022 13.07.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 34 of 34