Madras High Court
Syed Kasim Sakaaf vs The Chief Executive Officer on 3 December, 2021
Author: C.Saravanan
Bench: C.Saravanan
W.P.Nos.15977 of 2021 etc.
W.P.Nos.15977 of 2021, 12442, 14935 & 15779 of 2022
C.SARAVANAN, J.
A final order came to be passed in the above Writ Petitions on
10.10.2022. Few typographical errors were noticed after the order was
signed and hosted in the website. Hence, these cases are listed today under
the caption “for being spoken to”.
2. After hearing both side parties, the following corrections are
made:-
(i) Paragraph Nos.63 & 64 shall be substituted as
follows:-
63. The challenge to the order dated 03.12.2021
countermanding the election held 03.10.2021 can be
only by way of proceedings before the Wakf Tribunal
under Section 83 of the Wakf Act, 1995. Admittedly,
O.A.No.31 of 2022 is pending before the Wakf
Tribunal.
64. It is not open for any disgruntled member to
countermand an election either directly or indirectly by
giving a complaint to the Board and its officers namely
the Chief Executive Officer and/or the Inspector to
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W.P.Nos.15977 of 2021 etc.
hold an enquiry to unseat the elected body.
(ii) After the Paragraph No.65, the following
paragraphs are added.
65.1. Be that as it may, since the Wakf Tribunal
is seized of the matter, the Wakf Tribunal may
examine all the issues relating to the elections held on
03.10.2021, whereby, 14 members were elected as
members of the Managing Committee of the Dadasha
Makkan Wakf. In case any irregularity is noticed in the
conduct of election held on 03.10.2021, for which,
result was announced on 22.10.2021, the aggrieved
parties are permitted to make their stand clear either by
filing appropriate application as intervenors or by filing
separate appeals.
65.2. The issue as to whether the petitioner in
W.P.No.15977 of 2022 / second respondent in
W.P.No.15977 of 2021 / fifth respondent in
W.P.No.14935 of 2022 was eligible to participate in
the election held on 03.10.2021 in the presence of the
Superintendent of Wakf pursuant to the direction of the
Wakf Board, shall also be examined.
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W.P.Nos.15977 of 2021 etc.
(iii) The last sentence in paragraph No.66 starting
with “The attempt” and ending with “proceeding” shall be
substituted with the following sentence:-
“The attempt to outreach the pending proceeding
cannot be countenanced.”
(iv) In the fourth line in paragraph No.68, after the
word “Proceeding”, before the word “failing”, the words
“as members alone” are added.
(v) In paragraph No.48, the number of the Writ
Petition “W.P.No.15977 of 2021” shall be substituted with
“W.P.No.15779 of 2022”. Similarly, in the last line in
paragraph No.50, the number of the Writ Petition
“W.P.No.15977 of 2022” shall be substituted with
“W.P.No.15977 of 2021”.
(vi) In the second line in paragraph No.38, the words
“6th to 11th respondents” shall be substituted with “3rd
respondent”.
(vii) The paragraph No.69 shall be substituted with
the following paragraph:-
69. In the light of the above observations,
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W.P.Nos.15977 of 2021 etc.
i. W.P.No.15977 of 2021 and W.P.No.15779 of
2022 are dismissed with liberty to the respective
petitioners to work out their remedy before the
Wakf Tribunal under Section 83 of the Wakf
Act,1995.
ii. The respective petitioners in W.P.No.15977 of
2021 and W.P.No.15779 of 2022, if advised,
may file such statutory appeal before the Wakf
Tribunal, within a period of four weeks from the
date of receipt of a copy of this order.
iii. Status quo as on date regarding the right of
easement shall continue to remain in force for a
period of eight (8) weeks from the date of
receipt of a copy of this order. The Tribunal may
extend the protection on examination of the
case.
iv. The rights of these petitioners shall be subject to
further orders to be passed by the Wakf
Tribunal.
v. W.P.No.14935 of 2022 and W.P.No.12442 of
2022 filed by the petitioner are allowed with the
above observations.
vi. Liberty is given to the parties to file collateral
appeal under Section 83 of the Wakf Act, 1995
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W.P.Nos.15977 of 2021 etc.
before the Wakf Tribunal to challenge the
elections, within a period of 30 days from the
date of receipt of a copy of this order.
vii.The Wakf Tribunal shall endeavour to bring a
finality to the proceedings in O.A.No.31 of 2022
and such other appeals within a period of three
months from the date of date of receipt of a
copy of this order.
viii.Pending further orders by the Wakf Tribunal,
the persons elected on 03.10.2021 shall continue
to discharge their duties as elected Managing
Committee of the Wakf.
ix. Parties are directed to maintain status quo as on
date pending further orders by the Wakf
Tribunal.
x. Consequently, connected miscellaneous
petitions are closed. No costs.
3. Registry is directed to carryout the above corrections and
thereafter, issue copy to the parties.
18.10.2022
jen
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W.P.Nos.15977 of 2021 etc.
C.SARAVANAN, J.
Jen
W.P.Nos.15977 of 2021, 12442,
14935 & 15779 of 2022
18.10.2022
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W.P.Nos.15977 of 2021 etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 15.07.2022
Pronounced On 10.10.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.Nos.15977 of 2021, 12442, 14935 & 15779 of 2022
and WMP.Nos.14158, 14159, 11907, 11908 & 15048 of 2022
W.P.No.15977 of 2021:
1. Syed Kasim Sakaaf
2. Syed Akbar Sakaaf .. Petitioners
vs.
1. The Chief Executive Officer,
Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
2.Habeebunnissa
3.The Secretary,
Dadasha Makkan Waqf,
No.5, Dargah Street, Dadashamakkan,
Chennai-12. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari calling for the records of the 1st respondent
ending with proceedings dated 7/7/21 in Proc.No.619/99/B9/Chen and
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W.P.Nos.15977 of 2021 etc.
quash the same, insofar as observing that the 3rd respondent waqf is at
liberty to enter into an agreement under the Indian Easement Act, 1882 with
the petitioners for passage right of 87.5 sq.ft.on paymant of amount to be
mutually fixed and pass such further or other orders.
For Petitioner : Mr.N.A.Nassir Ahamed
for Mr.Umapathy
For R1 : M/s.S.Haja Mohideen Gisthi
For R2 : Mr. Y.Kaja Navas
For R3 : Mr.A.Muthukumar
W.P.No.12442 of 2022
Syed Kasim Sakaaf .. Petitioner
vs.
1. The Chief Executive Officer,
Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
2. The Chairman,
Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
3. The Superintendent of Wakf
Tamil Nadu Waqf Board,
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W.P.Nos.15977 of 2021 etc.
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
4.The Inspector of Wakf,
Chennai Zone,
3 & 4 at No.139, Dr.Besant Road,
Ice House, Triplicane, Chennai-5.
5. H.Mohamed Sajath
6. Syed Mazhar Hussain
7. H.W.Shanaz
8. Haseena Bee
9. Syed Aejaz Ahmed
10.Ghayaz Ali
11. Mubeena Amina
12. Ghousiya Begum
13. Showkath Jahan
14. G.M.Syed Sasi Mohamed
15. Shabana Ayisha
16. Syed Latheef
17. Fathima Begum
Prayer: Petition filed under Article 226 of the Constitution of India for
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W.P.Nos.15977 of 2021 etc.
issuance of a Writ of Certiorari calling for the records of the 1st respondent
dated 5/5/22 in Rc.No.619/99/B9/Chn and quash the same.
For Petitioner : Mr.N.A.Nassir Ahamed
for Mr.N.A.Nassair Hussain
For R1 to R4 : M/s.S.Haja Mohideen Gisthi
For R6 to R11 : Mr.A.Muthukumar
For R14 to R16 : Mr.Y.Kaja Navas
W.P.No.14935 of 2022
Syed Kasim Sakkaf .. Petitioner
vs.
1. The Chief Executive Officer,
Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
2. The Chairman,
Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
3. The Superintendent of Wakf
Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
4.The Inspector of Wakf,
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W.P.Nos.15977 of 2021 etc.
Chennai Zone,
3 & 4 at No.139, Dr.Besant Road,
Ice House, Triplicane, Chennai-5.
5. Habeebunnissa Begum
( R5 impleaded vide order dated 30.06.2022
made in W.M.P.No.14402/2022
in W.P.No.14935/2022) .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari calling for the records of the 4th respondent
dated 31/5/2022 in Rc.No.168/2022/WI/Che and quash the same.
For Petitioner : Mr.N.A.Nassir Ahamed
for Mr.N.A.Nassair Hussain
For R1 to R4 : M/s.S.Haja Mohideen Gisthi
For R5 : Mr.Y.Kaja Navas
W.P.No.15779 of 2022
Habeebunnissa Begum .. Petitioner
vs.
1. The Chief Executive Officer,
Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai-1.
2. Syed Kasim Sakaaf
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W.P.Nos.15977 of 2021 etc.
3. Syed Akbar Sakaaf .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus calling for the records of the
1st respondent ending with the proceedings dated 07.07.2021 in
Proc.No.619/99/B9/Chen and quash the portion of the order insofar as the
observation of the 1st respondent with regard to the easement act and permit
the 2nd and 3rd respondents to use the wakf land as per easement act and
consequently direct the 1st respondent to conduct proper survey of the Wakf
Land after giving notice to the petitioner in Survey No.2811/19, No.50, 5th
Lane, Dadasha Makkan, Strahans Road, Chennai 600 012 with the
assistance of the land surveyor, Perambur and thereafter to take necessary
action against the 2nd and 3rd respondents as per the order passed in
W.P.No.17554 by this Court.
For Petitioner : Mr.K.Kaja Navas
For R1 : Mr.Abdul Mubeen
For R2 & R3 : Mr.N.A.Nissar Ahmed
COMMON ORDER
By this common order, all the four writ petitions are being disposed _____________ https://www.mhc.tn.gov.in/judis Page No. 12 of 40 W.P.Nos.15977 of 2021 etc. of.
2. The petitioner in W.P.No.14935 of 2022 and W.P.No.12442 of 2022 is Syed Kasim Sakaaf. He has filed W.P.No.15977 of 2021 along with his brother Syed Akbar Sakaaf. W.P.No.15779 of 2022 has been filed by Habeebunissa Begum.
3. These persons claim to be the descendants of Saint Dadasha and thus the beneficiaries of the Dadsha Makkan Wakf (hereinafter referred to as the Wakf). It is however the case of Habeebunissa Begum, the petitioner in W.P.No.15779 of 2022 that Syed Kasim Sakaaf and his brother Syed Akbar Sakaaf, the petitioners in W.P.No.15977 of 2021 are not the descendants of Saint Dadasha and therefore not entitled to either contest elections or vote in elections.
4. Habeebunissa Begum was the President of the Managing Committee of the Wakf and demitted her office on 06.07.2021. Thereafter, in the ensuing election held on 10.03.2021, Syed Kasim Sakaaf was elected as the President of the Managing Committee of the Wakf. _____________ https://www.mhc.tn.gov.in/judis Page No. 13 of 40 W.P.Nos.15977 of 2021 etc.
5. The election was conducted on the direction of the Chief Executive Officer of Tamil Nadu Wakf Board (hereinafter referred to as the Wakf Board) and under the supervision of the Superintendent of Wakf Board. There is an internal power struggle within the Wakf between the two factions represented by these two persons.
6. Both W.P.No.15977 of 2021 and W.P.No.15779 of 2022 have been filed against order dated 07.07.2021 passed by the first respondent therein, the Chief Executive Officer of the Wakf Board in its proceedings Proc No.619/99/B9/Chen insofar as it directs the third respondent therein, the Wakf to enter into an agreement with the petitioners in W.P.No.15977 of 2021 under the provisions of the Indian Easement Act, 1882 for positive right over 87.5 sq ft of land.
7. The petitioner Habeebunissa Begum in W.P.No.15779 of 2022 has challenged the same order permitting the petitioners in W.P.No.15977 of 2021 to use 87.5 sq ft of Wakf land as per the Indian Easement Act, 1882 complaining that Syed Kasim Sakaaf and his brother, Syed Akbar Sakaaf _____________ https://www.mhc.tn.gov.in/judis Page No. 14 of 40 W.P.Nos.15977 of 2021 etc. are encroachers of the 87.5 sq ft of land belonging to the Wakf.
8. In W.P.No.12442 of 2022, the petitioner, Syed Kasim Sakaaf has challenged the impugned proceedings in R.c.No.619/99/B9/Chn dated 05.05.2022 of the first respondent, Chief Executive Officer of the Wakf Board.
9. By the impugned proceeding dated 05.05.2022, the first respondent, Chief Executive Officer of the Wakf Board has called the petitioner and other members of the Managing Committee of the Wakf for an enquiry regarding alleged mismanagement of Wakf properties.
10. In W.P.No. 14935 of 2022, the same petitioner, Syed Kasim Sakaaf has challenged the impugned proceedings in R.c.No.168/2022/WI/Che dated 31.05.2022 initiated by the fourth respondent, Inspector of Wakf.
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11. By the impugned proceedings dated 31.05.2022, the fourth respondent Inspector of Wakf, has called upon the said petitioner to come for an enquiry on a complaint to remove the name of the petitioner from the voters list as he is allegedly not a descendant of the Saint Dadasha but merely a descendant of a share purchaser who bought the share from one of the descendants of Saint Dahasha.
12. The Wakf in question was notified on 09.03.1956. Later a scheme decree came to be passed under Section 69 of the Wakf Act, 1995 on 05.06.2010. It was also gazetted on 08.09.2010. As per the scheme two members from each branch could be elected and out of the 14 elected members, 7 elected members would form the Managing Committee of the Wakf.
13. In the past, 3 elections have taken place in terms of the scheme decree. As mentioned above, in the previous election, the petitioner Habeebunissa Begum in W.P.No.15779 of 2022 was elected as the President of the Managing Committee. The term of the previous Managing Committee came to an end on 06.07.2021.
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14. The next election took place on 03.10.2021 under the supervision of the Superintendent of the Wakf, Chennai. The election results were announced on 22.10.2021, pursuant to which 14 persons assumed charge in the Managing Committee of the Wakf.
15. Earlier, by an order dated 03.12.2021, the Chief Executive Officer of the Wakf Board called for a fresh election and thus countermanded the election held on 03.10.2021. It was based on a complaint of Syed Dula Basha and 7 others that the election was conducted improperly and in violation of the bye-laws of the Wakf.
16. Under these circumstances, W.P.No.26402 of 2021 was filed by one Syed Mazhar Hussain, a successful candidate in the elections, praying to quash the communication dated 03.12.2021 of the Chief Executive Officer pursuant to the resolution of the Wakf Board dated 28.10.2021. Syed Mazhar Hussain was also elected in the election held on 03.10.2021.
17. An interim order dated 10.12.2021 came to be passed by this _____________ https://www.mhc.tn.gov.in/judis Page No. 17 of 40 W.P.Nos.15977 of 2021 etc. Court in W.M.P.No.27861 of 2021 of W.P.No.26402 of 2021. Thus, the order dated 03.12.2021 of the Chief Executive Officer of the Wakf Board was stayed.
18. In the light of the above development, W.P.No.27425 of 2021 was filed by one H.W. Shanaz to consider the representation dated 29.11.2021 of the petitioner therein to hand over the charge to the elected members in view of the interim order dated 10.12.2021 passed in W.M.P.No.27861 of 2021 in W.P.No.26402 of 2021.
19. W.P.No.27425 of 2021 was disposed of vide order dated 21.12.2021 by this Court directing the Chief Executive Officer to consider the representation. Pursuant to the order of the Chief Executive Officer on 09.02.2022, the elected body assumed control of the Wakf subject to the outcome of W.P.No.26402 of 2022.
20. When matters regarding the election stood thus, on 21.03.2022, an application in W.E.A.No. 01 of 2022 under Section 70 of the Wakf Act, 1995 was filed by one Syeeda Dilara along with 49 others to hold an _____________ https://www.mhc.tn.gov.in/judis Page No. 18 of 40 W.P.Nos.15977 of 2021 etc. enquiry to take direct management of Wakf alleging mismanagement of Wakf properties.
21. One G.M. Syed Fasi Mohammed, a successful candidate, also gave a representation on 28.04.2022 to the Wakf Board complaining about mismanagement of Wakf properties and a prayer to take direct management of the Wakf by the Wakf Board. The representation appears almost similar to the representation dated 21.03.2022 filed by Sayeeda Dilara and 49 others which included Habeebunissa Begum, the former President of the Managing Committee.
22. On 29.04.2022, the Chief Executive Officer of the Wakf issued notice to the 14 elected members of the Managing Committee of the Wakf referring to the application filed on 21.03.2022.
23. In the interim, W.P.No.26402 of 2021 was however dismissed by this Court vide its order dated 06.04.2022. However, while dismissing the W.P.No.26402 of 2021, this Court granted liberty to file a statutory appeal _____________ https://www.mhc.tn.gov.in/judis Page No. 19 of 40 W.P.Nos.15977 of 2021 etc. before the Wakf Tribunal under Section 83 of the Act. The interim stay of the order dated 03.12.2021 in Proc.No.619/99/B9/Chen was extended for a period of two weeks.
24. Pursuant to the above, O.A.No.31 of 2022 was filed before the Tribunal on 13.04.2022. The Wakf Tribunal was pleased to grant an interim order of stay of the order dated 03.12.2021 of the Chief Executive Officer of the Wakf Board.
25. Since W.P.No.26402 of 2021 was eventually dismissed, an independent proceeding was initiated in a bid for taking over the direct management of the Wakf under Section 65 of the Wakf Act, 1995 when the Chief Executive Officer of the Wakf Board issued the impugned communication dated 05.05.2022. This impugned communication dated 05.05.2022 has been challenged in the present W.P.No.12442 of 2022 bySyed Kasim Sakaaf.
26. An interim stay was ordered on 11.05.2022 by this Court with the following observations:-
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4. Based on the same, proceedings were issued on 09.02.2022, subject to the outcome of the said writ petition. The writ petition however came to be dismissed on 06.04.2022 by relegating the parties to workout the remedy before the Wakf Tribunal. However, the interim order was directed to be continued for two more weeks. In terms of the liberty given vide order dated 06.04.2022 O.A.No.31 of 2022 was filed before the Wakf Tribunal. In I.A.No.187 of 2022 an interim order was granted. It is firmly submitted by the learned counsel for the petitioner that the said interim order is in force as on date.
5. I find no difficulty in coming to the conclusion that as on date the Wakf in question is managed by duly elected Office Bearers.
Though the learned Counsel for the Wakf Board would raise very many contentions opposing the maintainability of the writ petition, I am more than satisfied that the Agenda of the enquiry is to assume direct management of the Wakf Board. Section 65 of the Wakf Act provides for assumption of direct management by the Board only if there is vacancy in the Office of Mutawalli of a Wakf or Board.
6. In this case, there is no vacancy. Prima facie I am satisfied that the impugned proceedings are without jurisdiction. That is why, I am not able to straight away accept the contention of the learned counsel anchored on Section 83 of the Wakf Act, which states that the petitioner has to avail alternative remedy. Therefore, there shall be an order of interim stay as prayed for.
7. Call on 13.06.2022."
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27. At the time the Chief Executive Officer initiated proceedings, parallelly the Wakf Inspector also initiated proceedings against the elected President of the Managing Committee, Syed Kasim Sakaaf vide communication dated 04.05.2022. The said proceeding was pursuant to a complaint dated 26.11.2021 by the former President of the Wakf, Habeebunnissa Begum alleging that the petitioner in W.P.No.14935 of 2022 is not a descendant of Dadasha but a descendant of a share purchaser. Subsequently, the Wakf Inspector issued the impugned communication dated 31.05.2022 calling the petitioner for an enquiry to remove his name from the voters list. This impugned communication dated 31.05.2022 is challenged by the petitioner in W.P.No.14935 of 2022.
28. In W.P.No.12442 of 2022 which has been filed challenging the impugned notice dated 05.05.2022 issued by the Chief Executive Officer, it is submitted on behalf of the petitioner that the impugned proceedings calling the petitioner and others for enquiry regarding the management of the Wakf during the pendency of O.A.No.31 of 2022 is not justified. _____________ https://www.mhc.tn.gov.in/judis Page No. 22 of 40 W.P.Nos.15977 of 2021 etc.
29. It is submitted that the agenda for enquiry which was proposed to be held on 11.05.2022 at the Wakf Board Office was unwarranted when the Chief Executive Officer had issued an order dated 09.02.2022 handing over charge to the elected Managing Committee as per the order of this Court in W.P.No.27425 of 2021 subject to outcome of W.P.No.26402 of 2021 which was later dismissed.
30. Coming to W.P.No.14935 of 2022, the petitioner Syed Kasim Sakaaf claims to be a descendant of Saint Dadasha and therefore a beneficiary under the Dadasha Makkan Wakf. It is submitted that the petitioner's father Syed Mohammed Tazim Tarak Sakaf @ Syed Mohamed Sakawaf was also recognized as a beneficiary as early as 1956 in the Annexure to the Proforma after the Wakf Act, 1954 came into force. It is therefore submitted that the petitioner's father, Syed Mohamed Sakawaf was recognized at S.No.33.
31. It is the contention of the petitioner that the impugned proceedings cannot be sustained as there is no doubt the petitioner is a beneficiary and a legal descendant of late Saint Dadasha whose body rests _____________ https://www.mhc.tn.gov.in/judis Page No. 23 of 40 W.P.Nos.15977 of 2021 etc. in the Dargah. It is submitted that the impugned proceedings has been initiated at the behest of the petitioner in W.P.No.15977 of 2022 who lost the election held on 03.10.2021.
32. The learned counsel for the petitioner submits that the persons who initiated the proceedings before the fourth respondent, Wakf Inspector has also drawn attention to the share purchase agreement dated 29.04.1919 wherein it has been categorically accepted that the petitioner's grandfather, Syed Ahmed Sakaf merely purchased a share from one of the beneficiary and therefore he is not a beneficiary of Saint Dadasha.
33. He has also drawn attention to the order dated 04.05.1944 passed by the Chief Judge, Small Causes Court, Madras in the miscellaneous petitions in Land Case No.29 of 1916.
34. A specific reference was made to the following passage from the said order in Page No.3, which reads as under:-
_____________ https://www.mhc.tn.gov.in/judis Page No. 24 of 40 W.P.Nos.15977 of 2021 etc. “ .......... to Safdar Ali; that Ikramunnisa was therefore entitled to 2115/20160 as her share; that she subsequently sold and assigned one half share to her sister son Syed Ahmed Sakaf and the balance to the latter's son Syed Abadul Samad Sakaf by registered deed dated 29.04.1919; the Syed Abdul Samad having died unmarried his share was inherited by his father; that the father Syed Ahmad Akaf having died leaving behind the petitioners as the son and daughter the 1/2 share to which he was entitled has devolved upon the petitioner in equal share and that as such they share to be brought on records as the persons entitled to the share of the deceased 8th claimant."
35. It is submitted that the petitioner's grandfather admittedly purchased a share in the proceedings of the Wakf from petitioner's grandmother's sister. It is submitted that mere purchase of the share ipso facto would not need a conclusion that the petitioner's grandmother was not a descendant of Saint Dadasha. That apart, it is submitted that when the Wakf was recognized, the petitioner's father, Syed Mohammed Sakaf was also recognized as one of the beneficiaries and when the scheme was framed the petitioner's brother also participated in the proceedings, which led to the scheme being framed under Section 69 of the Act.
36. The writ petition filed by the petitioner in W.P.No.12442 of 2022 _____________ https://www.mhc.tn.gov.in/judis Page No. 25 of 40 W.P.Nos.15977 of 2021 etc. is supported by the 6th to 11th respondents in W.P.No.12442 of 2022 who were also elected along with the petitioner.
37. The learned counsel for the 6th to 11th respondents submits that the notice dated 05.05.2022 is vague and therefore liable to be quashed in the light of the decision of Hon'ble Karnataka High Court in Victory Glass and Industries Ltd Vs. Collector of C.Ex 1990(25) ECC, 72.
38. As far as W.P.No.15977 of 2021 is concerned, Mr.A.Muthukumar, learned counsel for the 6th to 11th respondents submits that the question of paying the amount for enjoying the right of easement does not arise. Therefore, the impugned proceeding therein is liable to be quashed.
39. The writ petition is opposed by the learned counsel for the Wakf Board and the private respondent and the parties at whose behest, the proceedings came to be initiated for countermanding the election of the petitioner and enquiry for taking direct management of the Wakf by the Wakf Board.
_____________ https://www.mhc.tn.gov.in/judis Page No. 26 of 40 W.P.Nos.15977 of 2021 etc.
40. Mr.Y.Kaja Navas, learned counsel for the 5th respondent in W.P.No. 14935 of 2022, who gave a complaint on 26.11.2021 submits that the writ petition is devoid of merits as the petitioner was issued with a notice and called upon to come for an enquiry. That apart, it is submitted that the parties at whose behest, the proceedings were initiated have not been made parties to the present proceedings.
41. The learned counsel has referred to the decision of the Madurai Bench of this Court in O.M.A.Udhuman Mydeen Vs The Chief Executive Officer, The Tamil Nadu Wakf Board and others, passed in W.P(MD)No.3791 of 2022, dated 01.04.2022, reported in MANU/TN/2253/2022. A reference was made to Paragraphs 42 and 43, which reads as under:-
"42. The petitioner has also been summoned earlier for an enquiry. However, the petitioner has not brought same to the attention of this Court. Thus, there is a suppression of fact. Whether the petitioner has requisite qualification to continue as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal is to be decided by the Wakf Board as was observed by the Division Bench of this Court in its order dated 22.03.2018 in W.A (MD) Nos.865 and 866 of 2016. Merely because _____________ https://www.mhc.tn.gov.in/judis Page No. 27 of 40 W.P.Nos.15977 of 2021 etc. the Appeal Suit stood abated itself would not mean that the post of Mutawalli automatically fell on the lap of the petitioner even though the petitioner may or may not have the requisite qualification.
43. The first and second respondents who are the officials of the Wakf Board have power to decide as to whether the petitioner has requisite qualification or does not suffer from any disqualification under the Wakf Act, 1995. Therefore, I do not find any merits in the present writ petition."
42. It is submitted that in the light of the above, the present writ petition is liable to be dismissed.
43. Representing the 14th to 17th respondents in W.P.No.12442 of 2022, who are the elected members of the newly elected Managing Committee, the learned counsel submitted that though the election was held on 03.10.2021, proceedings came to be initiated for countermanding the election of the petitioner. It is submitted that the petitioner has to establish the fact regarding his status as the descendant of late Dadasha. _____________ https://www.mhc.tn.gov.in/judis Page No. 28 of 40 W.P.Nos.15977 of 2021 etc.
44. It is submitted that though the petitioner and other private respondents were elected, the petitioner in these writ petitions is not entitled to continue in the office as he has not established that he is one of the descendants of late Dadasha.
45. Opposing the objections, the learned counsel for the petitioner interjects and referred to the decision of the Hon'ble Division Bench of this Court in the case of The Managing Director, Represented by the Board of Trustees, Nagore Dargah, Nagore Vs Haja Noordeen Sahib @ Alhaj Dr.S.Syed Kamil Sahib and others, passed in W.A.No.1640 of 2016, dated 08.06.2018 reported in 2018 (3) CTC 801.
46. A specific reference was made to Paragraphs 17 to 20, to state that if at all, a person has any grievance against the election held and the against the elected person like the petitioner on the ground that the petitioner, Syed Kasim Sakaaf is not a beneficiary, it is for them to file a Civil Suit to declare that the petitioner is not a descendant of Dadasha and therefore the proposed enquiry by the Wakf Board is liable to be quashed.
47. It is further submitted that the Wakf Board is not the authority to _____________ https://www.mhc.tn.gov.in/judis Page No. 29 of 40 W.P.Nos.15977 of 2021 etc. determine the question as to whether the petitioner is a descendant of Dadasha under the relevant proforma and bye-laws and therefore he submits that this writ petition deserves to be allowed.
48. The learned counsel for the Wakf Board in W.P.No.15977 of 2021 submits that if at all the petitioner was aggrieved by the decision, only an appeal has to be filed under Section 83 of the Wakf Act.
49. I have considered the arguments advanced by the learned counsel for the petitioner and respondents. I have also perused the impugned orders and records of the proceedings of the respondents in the respective writ petitions.
50. I shall first deal with W.P.No.15977 of 2021 and W.P.No. 15779 of 2022 wherein the respective petitioners have challenged the impugned order dated 07.07.2021 of the Chief Executive Officer of the Wakf in proceedings bearing reference Proc No.619/99/B9/Chen. It deals with the right of easement claimed by the petitioner in W.P.No.15977 of 2022. _____________ https://www.mhc.tn.gov.in/judis Page No. 30 of 40 W.P.Nos.15977 of 2021 etc.
51. Easement is a right in rem. Meaning, it acts against the entire world. It is not a right in personam, which is a right arising out of personal obligations and enforceable only against a particular individual or individuals, but belongs to the category of rights in rem or rights enforceable against the world.
52. In the 3rd edition of The Law Relating to Easements by Frederick Peacock (2016) revised by H.K. Saharay as part of the Tagore Law Lectures, 1899 it has been opined at page no.55 that “If a man, for the advantage of his own land, has the right to walk across his neighbours field, or divert the water of his neighbours screen, he has the accompanying right that no one shall interfere with this easement whether the same arose out of contract or otherwise.”
53. Easement is not an interest in land. It is a mere privilege appurtenant to the dominant tenement and imposes upon the servient owner an obligation to suffer something to be done or not done, in or upon the servient tenement.
_____________ https://www.mhc.tn.gov.in/judis Page No. 31 of 40 W.P.Nos.15977 of 2021 etc.
54. An easement exists for the benefit of the dominant tenement alone and the servient owner acquires no right to insist on its continuance or to ask for damages on its abandonment as held in Mason versus The Shrewsbury and Hereford Railway Co. (1871), L.R., 6 Q.B.,578.
55. Further, one of the qualities of an easement is that it should attach itself to the soil of the servient tenement and in imposing itself thereon, it lays a negative obligation upon the servient owner, not to do anything which may interfere with the enjoyment of the dominant owner. There is a passive obligation to not interfere with the rights enjoyed by the dominant owner.
56. The petitioner in W.P.No.15977 of 2021 claims the right of easement. The easementary right and the nature of the easement enjoyed by the petitioner in W.P.No.15977 of 2021 involves a disputed question of fact which has to be decided by the Wakf Tribunal.
57. Whether the petitioners in W.P.No.15977 of 2021 is required to enter into an agreement with the Wakf as ordered or whether the petitioner _____________ https://www.mhc.tn.gov.in/judis Page No. 32 of 40 W.P.Nos.15977 of 2021 etc. in W.P.No.15779 of 2022 is correct and can object to the right of easement permitted to the petitioners in W.P.No.15977 of 2021 has to be decided only by the Wakf Tribunal as it involves disputed questions of fact which cannot be decided in a summary proceeding under Article 226 of the Constitution of India.
58. Further, the Wakf Tribunal is the ultimate fact-finding authority and therefore the respective petitioners cannot expect this Court to decide disputed questions of fact. The respective petitioners for and against the right of easement and cost thereof have an alternate remedy before the Wakf Tribunal under Section 83 of the Wakf Act, 1995. Hence, these two writ petitions are liable to be dismissed.
59. Now I shall deal with W.P.No. 14935 of 2022 and W.P.No.12442 of 2022.
60. The term of the previous elected Managing Committee came to an end on 06.07.2021. The Wakf appears to have been brought under the direct management on 06.08.2021 in terms of Special Resolution No. _____________ https://www.mhc.tn.gov.in/judis Page No. 33 of 40 W.P.Nos.15977 of 2021 etc. 5/1990 dated 14.06.1990, though there are no records to substantiate that the corresponding notification under Section 65 of the Wakf Act, 1995 as is contemplated was issued and gazetted by the Wakf Board.
61. The Superintendent of Wakf, Chennai was ordered to conduct a fresh selection of a new committee and accordingly a notification for selection of a new Managing Committee was fixed on the notice board as per the bye-laws.
62. The list of beneficiaries were scrutinised and the list containing 139 beneficiaries from the branches 1 to 7 was also affixed on the Notice Board. The Superintendent of Wakf also conducted a meeting of the beneficiaries on 03.10.2021 in the premises of the Dadasha Makkan Wakf, Perambur, Chennai where some of the beneficiaries who were present objected to filing of the consent letters and requested the Superintendent of Wakf to select/elect the members of the Managing Committee as per clause 12 of the bye-laws of the above Wakf.
63. The challenge to the election conducted on 03.10.2021 can be _____________ https://www.mhc.tn.gov.in/judis Page No. 34 of 40 W.P.Nos.15977 of 2021 etc. only by way of proceedings before the Wakf Tribunal under Section 83 of the Wakf Act, 1995.
64. It is not open for any disgruntled member to countermand an election indirectly by giving a complaint to the Board and its officers namely the Chief Executive Officer and/or the Inspector to hold an enquiry to unseat the elected body.
65. The elected body cannot be ousted by an indirect method. When law mandates a particular thing to be done in a particular manner, then it shall be done in that manner.
66. The impugned proceedings of the Chief Executive Officer of the Wakf Board and the Inspector of Wakf calling the petitioner in W.P.No. 14935 of 2022 and W.P.No.12442 of 2022 and others to come for enquiry during the pendency of the proceeding before the Tribunal was unwarranted and therefore cannot be allowed as the Tribunal is seized of the issue. The attempt is to outreach the pending proceeding. _____________ https://www.mhc.tn.gov.in/judis Page No. 35 of 40 W.P.Nos.15977 of 2021 etc.
67. Therefore, these proceedings initiated by the Chief Executive Officer of the Wakf Board and the Inspector of Wakf are liable to be quashed. Thus, W.P.No.14935 of 2022 and W.P.No.12442 of 2022 deserves to be allowed while leaving all the issues open to be decided in the proceedings before Wakf Tribunal.
68. If the private parties in W.P. No. 14935 of 2022 and W.P.No.12442 of 2022 are not a party to the proceeding before the Wakf Tribunal, it is open for them to implead themselves in the said proceeding failing which the Wakf Tribunal is at liberty to decide the rights of the parties in W.P.No. 14935 of 2022 and W.P.No.12442 of 2022 based on the available records.
69. In the light of the above observations, i. W.P.No.15977 of 2021 and W.P.No.15779 of 2022 are dismissed with liberty to the respective petitioners to work out their remedy before the Wakf Tribunal under Section 83 of the Wakf Act,1995.
ii. Therefore, the respective petitioners, if advised, _____________ https://www.mhc.tn.gov.in/judis Page No. 36 of 40 W.P.Nos.15977 of 2021 etc. may file such statutory appeal before the Wakf Tribunal, within a period of four weeks from the date of receipt of a copy of this order.
iii. Status quo as on date regarding the right of easement shall continue to remain in force for a period of eight (8) weeks from the date of receipt of a copy of this order.
iv.All the rights of the said petitioners shall be subject to further orders of the Wakf Tribunal. v. W.P.No.14935 of 2022 and W.P.No.12442 of 2022 filed by the petitioner are allowed with the observations contained herein.
vi.The Wakf Tribunal shall endeavour to bring a finality to the proceedings in O.A.No.31 of 2022 within a period of three months from the date of date of receipt of a copy of this order. vii. Pending further orders by the Wakf Tribunal, the persons elected on 03.10.2021 shall continue to discharge their duties as elected Managing Committee of the Wakf.
viii.All facts are directed to be placed before the Wakf Tribunal.
ix. Consequently, connected miscellaneous petitions are closed. No costs.
_____________ https://www.mhc.tn.gov.in/judis Page No. 37 of 40 W.P.Nos.15977 of 2021 etc. 10.10.2022 Index : Yes/No Internet : Yes/No Speaking : Non-Speaking Order kkd To
1. The Chief Executive Officer, Tamil Nadu Waqf Board, No.1, Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai-1.
2. The Chairman, Tamil Nadu Waqf Board, No.1, Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai-1.
3. The Superintendent of Wakf Tamil Nadu Waqf Board, No.1, Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai-1.
_____________ https://www.mhc.tn.gov.in/judis Page No. 38 of 40 W.P.Nos.15977 of 2021 etc.
4.The Inspector of Wakf, Chennai Zone, 3 & 4 at No.139, Dr.Besant Road, Ice House, Triplicane, Chennai-5.
5.The Secretary, Dadasha Makkan Waqf, No.5, Dargah Street, Dadashamakkan, Chennai-12.
C.SARAVANAN,J.
kkd Pre-delivery Common Order in W.P.Nos.15977/2021, 12442,14935 & 15779/ 2022 _____________ https://www.mhc.tn.gov.in/judis Page No. 39 of 40 W.P.Nos.15977 of 2021 etc. 10.10.2022 _____________ https://www.mhc.tn.gov.in/judis Page No. 40 of 40