Madras High Court
Anjuman-E-Mohammadhi vs The Tamilnadu Wakf Board on 6 June, 2019
Author: C.Saravanan
Bench: C.Saravanan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 29.04.2019
Pronounced On 06.06.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P(NPD).No.2132 of 2014
and
M.P.No.1 of 2014
Anjuman-E-Mohammadhi,
Rep.by its Secretary S.Syed Azizullah,
S/o.Syed Meskinullah,
Office at: Plot No.35 to 39, Reddy Colony,
Villivakkam, Chennai – 600 049.
And residing at Plot No.375/A, 1st Main Road,
Baba Nagar, Villivakkam,
Chennai – 600 049. .. Petitioner
vs
1.The TamilNadu Wakf Board,
Rep. by the Chief Executive Officer,
Chennai – 600 001.
2.Janab N.L.Khaja Kamaludeen .. Respondents
Prayer: Civil Revision Petition is filed under Section 83(9) of Wakf
Act 1995, to set aside the order and decretal order dated
07.04.2014 in O.A.No.11 of 2012 on the file of Wakf Tribunal (1 st
Assistant City Civil Court, Chennai).
For Petitioner : M/s.D.Geetha
for Mr.S.T.Natramil Kaviarasan
For Respondents : Mr.Mohammed Fayaz Ali for R1
http://www.judis.nic.in
R2-No appearance
2
ORDER
The petitioner is a society registered under the provisions of the Tamilnadu Societies Registration Act 27 of 1975. It was registered on 05.01.1988 with the following objects:-
a) To promote to follow the commandments of ALLAH and the SUNNATH OF PROPHET MOHAMMED (SAL) to the possible extent.
b) Promotion of Education of all types in General and particularly Islamic Education in the area of operation of the Society.
c) To establish a prayer hall to offer regular prayers as per AHLAI-SUNNATHWAL-JAMATH-HANAFI with URDU.
d) To indulge in such activities which will help social, economic and moral upliftment of the people of the locality.
e) To help for the education of poor Muslim Children.
f) To impart religious education is to the Muslims.
g) To help for the marriages of poor Muslim Girls.
h) To conduct religious and social meetings, conferences etc.
i) To help for the burial of orphan Muslim Bodies.
j) To raise funds by all legitimate ways and means for achieving the above objects and in particular to have recourse to all legitimate activities in furtherance of the above objections.
2.The 1st respondents Waqf Board wanted to treat the petitioner society and its properties “as Waqf' and “Waqf Property” under the Provisions of the Waqf Act, 1995 ( 43 of 1995). http://www.judis.nic.in 3
3.By an order dated 10.03.2006 bearing refer R.C.No.15035/C1/TVLR, the 1st respondent Waqf Board passed an order and held that the petitioner society was a “Waqf” and thereby would be governed by the provisions of Waqf Act, 1995.
4.The said order was passed under Section 40(3) of the Waqf Act, 1995. The said order directed the petitioner society to register itself before the 1st respondent Waqf Board. The said order was challenged by the petitioner society before the Waqf Tribunal in O.A.No.4 of 2006.
5.By an order dated 20.12.2007, the Waqf Tribunal set aside the aforesaid order dated 10.03.2006 bearing reference R.C.No.15035/C1/TVLR passed by the 1st respondent Waqf Board and remanded the case back to the 1 st respondent Waqf Board to decide the case afresh after giving notice to the petitioner herein.
6.Thereafter, notice was issued to the petitioner society herein. By an order dated 13.08.2012 bearing reference Proc.No.15035/05/B4/TVLR, the 1st respondent again concluded that the petitioner was “Waqf” and the properties under its http://www.judis.nic.in 4 adminstration were to be governed by the provisions of the Waqf Act, 1995 and therefore called upon the petitioner society to register under itself under the provisions of the aforesaid Act.
7.Challenging the same, an appeal vide O.A.No.11 of 2012 was filed under Order 83(1) and (2) of Waqf Act, 1995 before the Waqf Tribunal. The said Tribunal was presided over the I Assistant City Civil Judge, Chennai. The said appeal was resisted by the 1st respondent Waqf Board herein.
8.By an order dated 07.02.2014 in O.A.No.11 of 2012, the Waqf Tribunal has upheld the order dated 13.08.2012 passed by the 1st respondent Waqf Board with the following observations:-
“The Waqf Board ought to have taken diligent steps as directed by this Court in O.A.No.4 of 2006. Three months time was granted to give opportunity to the applicant and pass necessary orders. But the orders were passed on 13.08.2012. It is true that the Waqf Board has not followed the direction with respect to time given by this Court. But the reason given by the Waqf Board is that the standing counsel has not communicated the order of this Court as there was a change of counsels. The reasons stated by the Waqf Board may be a true but being an institution it ought to have carried out the direction given by this Court. However, since the order dated 13.08.2012 is not within the time stipulated by this Court it cannot be called as an illegal order. There is a lapse on the part of the Waqf Board still it is not illegal. An opportunity was http://www.judis.nic.in 5 also given to the applicant by a notice dated 10.07.2012.” The only reason given in impugned order reads as under:-
“Therefore the Board has given the power to register any property under the Waqf Act eventhough it is registered under any other Act after issuing notice to the concerned person and pass an order as it may think it fit.
In the present O.A, the order under challenge creating the applicant as a Waqf do not contain any irregularity for the reasons stated above. The objection of the applicant though of different fold. Yet the applicant doesn't want to create a wakf but the property to be a property registered under Socities Registration Act. Therefore, there is no irregularity in the order dated 13.08.2012 by the Waqf Board for the reasons stated above. No merits in this application”
9. Challenging the same, the petitioner society has preferred this Civil Revision Petition.
10.Heard Ms.D.Geeta learned counsel duly instructed by Mr.Nataramil Kaviarasan the learned counsel for the petitioner and Mr.Mohammed Fayaz Ali the learned counsel for the 1st respondent Waqf Board.
http://www.judis.nic.in 6
11.The learned counsel for the petitioner submits that the three properties which are the only properties administered by petitioner society were purchased prior to registration of the petitioner society under the provisions of the Tamil Nadu Societies Registration Act, 1975.
12.As per the registered bye-laws of the petitioner society, the petitioner society was formed only on 05.11.1987 and was registered on 05.01.1988 under the provisions of the Tamil Nadu Societies Registration Act, 1975. The purchase of the three properties are dated 30.11.1984, 30.01.1985 and 30.04.1987 respectively. Thus, they were both purchased prior to formation of the petitioner society on 05.11.1987 and its registration on 05.01.1988. It is submitted that the petitioner was promoted with the following important objects:-
a) To promote to follow the commandments of ALLAH and SUNNATH OF PROPHET MUHAMMED (SAL) to the possible extent.
b) Promotion of Education of all types in General and particularly Islamic Education in the area of operation of the Society.
c) To establish a Prayer Hall to offer regular prayers as per AHLAI-SUNATHWAL-JAMATH-HANAFI with URDU.
http://www.judis.nic.in 7
13.It was submitted that there was no dedication of the property as is contemplated under Section 2(r) of the Waqf Act, 1995 by the petitioner and therefore there is no question of treating the petitioner society or its properties as a “Waqf” and Waqf Property”.
14.It is submitted that only a portion of the property purchased is used as a place of worship and rest of the premises are meant for promoting other objects of the society which are strictly not religious in nature through may be charitable in nature.
15.Therefore, it was contended there are several activities which are general in nature and not necessarily confined to 1 st object and therefore the petitioner cannot come within the purview of the Waqf Act. It was submitted that there was no dedication of the property.
16.It was further submitted that the 1st respondent and the Waqf Tribunal failed to note that the earlier order passed by the said Waqf Tribunal on 20.12.2007 had not been complied with. http://www.judis.nic.in 8
17.It is further stated that the petitioner was already registered under the provisions of the Tamil Nadu Societies Registration Act, 1975 and therefore cannot be governed by the provisions of the Waqf Act, 1995.
18.It was therefore submitted that the petitioner society cannot be under a dual control under two enactments. Further, it was stated that the 2nd respondent has submitted his resignation from the post of the secretary of the petitioner society pursuant to which an order dated 04.06.2012 in I.A.No 6365 of 2011 in O.S.No. 3387 of 2011 had been passed. However, ignoring the same, the 1st respondent has deliberately treated the 2nd respondent as the secretary of the petitioner society.
19.It was further argued that there are several other mosques and madras as were there in the neighbourhood, administration of which have not been disturbed by the 1 st respondent. However, the 1st respondent has been unfairly and selectively targeted the petitioner based on a frivolous complaint filed by the 2nd respondent.
http://www.judis.nic.in 9
20.Learned counsel for the petitioner relied upon the following decisions of the court in support of the petitioner:-
i. Nagoor Kaniammal and Ors vs Tenkasi Vangaru Muthu Merran Sahib Thailka Pallivasal and Ors 2015(4) CTC 34.
ii. The Coimbatore Athar Jamath vs The Tamil Nadu Wakf Board SCA NO 29 OF 1968.
iii. Nazam Zain yar Jung vs Director of Endowments AIR 1963 SC 985.
21.In all these cases it was held that proof of dedication is required to show a property was a waqf property and if there is no dedication or if it is not possible to infer dedication there cannot be any waqf. In the last mentioned case it was held that there has to be a clear indication as to dedication as is required in the case of waqf property.
22.Per Contra, the learned counsel for the 1st respondent Waqf Board submitted that the order passed by the Waqf Tribunal was well reasoned and requires no interference.
23.It was submitted that the properties under the control of http://www.judis.nic.in 10 the petitioner society were purchased for constructing mosques for Muslim communities and for performing prayer in the name of Allah. Therefore, there was valid dedication and a waqf came into being and therefore the properties in question are necessarily to be governed by the provisions of the Waqf Act, 1995.
24.It is submitted that though the society has been registered subsequently, nevertheless the object of the society is also to promote the commandments of Allah, Sunnath of Prophet Mohammed and to establish prayer hall for the benefit of followers of Islam.
25.It is further submitted that the society itself is located inside the mosque compound hence the address of the society is also given as the mosque. It is under these circumstances notice of hearing was issued by the respondent to the petitioner and 10.7.2012 under Section 40 (3) of the Waqf Act.
26.Learned counsel for the 1st respondent relied upon the following decisions:-
http://www.judis.nic.in 11 i. Haji B. Pakkir Mohammed vs The secretary to the government 2011 (6) CTC 485 : It was held that , it is settled law that once a property is dedicated to the Almighty under Muslim law as a Waqf to serve the religion and poor, the character of such property can never be altered otherwise, for, such dedication is not bound by time as it is perpetual. Once a waqf property always a waqf and it cannot be altered and further waqf once created cannot be ceased.” ii. Madurai Yagappanagar Muslim Jammat society vs sub registar Theppakulam 2016 1 LW 741 wherein it was held that the question as to whether a waqf is registered or unregistered is totally immaterial to apply the provisions of the Waqf Act, since the provisions of the Waqf Act will apply to all the waqfs whether it is registered or unregistered.
iii. U.P. Sunni Central Board of Wakfs Vs. Mazhar Hasan (2001) 6 SCC 289: It held that if the dedication carries with it an idea of voluntary self donation without any demand or appeal for the same and that subscription or donation made on appeal being made by people at large cannot be taken to be the donation of property of permanent character which is the essential ingredient of the definition of 'waqf' under the Act. If a property is set apart for a definite purpose, such property would become 'dedicated' for a purpose.
27.I have considered the rival contention of both the parties. The expression Waqf is defined as follows:-
http://www.judis.nic.in 12 3(r) “Waqf” means the permanent dedication by a person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-
(i) a Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) “grants” , including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a Wakf-al-al-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and ‘Wakif’ means any person making such dedication;
28.The above definition is wide and inclusive therefore, prima facie, use of the immovable properties purchased prior to the registration of the petitioner society appear to be for religious and charitable and for pious purpose and there is Waqf. However, there is no proper determination.
29. In the present case, the properties in questions were purchased for the aforesaid purpose in the name of Mr.Mohammad http://www.judis.nic.inYusuf as Uba Thalaivar i.e Vice President of Anjuman-E- 13
Mohammadhi to be governed in accordance with the bye-laws of Anjuman-E-Mohammadhi.
30.At that stage the petitioner society was neither formed nor registered. The properties were purchased for building Mosque for prayer for members of Muslim community of the are who have later registered themselves as society. The sale deed itself declares that the properties were being purchased for building Anjuman-E- Mohammadhi mosque for member of the Muslim Community residing in Villivakam Village and North Madras. The seller has also agreed to issue of patta in the name of Anjuman-E-Mohammadhi.
31.Though source of the fund is not discernable, it appears that the properties were purchased with the contribution of the members of the congregation who decided to eventually organise themselves as an association under the provisions of the Tamil Nadu Societies Registration Act, 1975 and thus registered themselves as Anjuman-E-Mohammadhi as per the rules of Sunnath Jamath, Hanafi-Urdu.
32.There is however no transfer the ownership of the property in favour of the petitioner society after its registration. The petitioner society is merely registered society to manage the affairs http://www.judis.nic.in 14 of its members. The bye-laws of the petitioner society also declares the object of the petitioner society which has been extracted above indicates that its membership is open to all Muslim residing in Nagars of North Villivakkam and nearby areas.
33.The membership is open for any person above the age of 18 who subscribes to the aims and objects of the society. The society has 3 categories of members namely patron members who shall pay a sum of Rs.1000/- and above, life members who shall pay a lump sum of Rs.500/- and above and ordinary members who shall pay Rs.25/- annually on monthly a sum of Rupees 2 or above.
34.The admission to the society is made by the governing body and on receipt of application in the prescribed form duly signed by the intending member and proposed and seconded by 2 members. The bye-laws prescribes elaborate procedure for recovery of arrears of subscription, expulsion and removal of members, resignation, eligibility for contesting. It is specifically stated that the petitioner society is a non political organisation and is purely a religious, cult, social and educational organisation of the Muslims. http://www.judis.nic.in 15
35.The management of the petitioner society rest with the governing body consisting of 10 members which shall consist of President, 1 Secretary, 1 Joint Secretary, 1 Treasurer and 6 committee members. The petitioner society is required to file necessary returns with the Registrar of Societies and the general body of the petitioner society consists of patron members, life members and ordinary members. The bye-laws is silent about the properties which are sought to be treated as Waqf properties.
36.The bye-law has several other clauses which deals with the manner in which the petitioner society has to be governed and managed. The fact that there of the 3 immovable properties purchased prior to registration of the petitioner society do not find a mention in the bye-laws is crucial. There is no takeover of the management of the asset though in reality these properties are being administered by the petitioner society.
37.There are also no documents to substantiate that the properties in question in respect of which the 1st respondent has sought to exercise power has been transferred to the petitioner or dedication of the asset for constituting the valid Waqf though there http://www.judis.nic.inare enough indications that the properties are being used only for 16 the pious, religious and charitable purpose as is contemplated under the provisions of the Act. However, it would require proper adjudication.
38.As per Section 6 of the Act, the Waqf Tribunal is empowered to determine whether the a particular property is a “waqf property” or not. Section 6 of the Act reads as under:-
(1) If any question arises whether a particular property specified as [waqf] property in the list of [auqaf] is [waqf] property or not or whether a [waqf] specified in such list is a Shia [waqf] or Sunni [waqf], the Board or the mutawalli of the [waqf] or [any person aggrieved] may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of [auqaf]: Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section of section ] (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any 1 [waqf] shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.
39.The Honourable Supreme Court in Board of Waqf, West Bengal and another Vs. Anis Farma Begum and another 2010 (4) Supreme Court Cases 588 has held that only Waqf Tribunal has http://www.judis.nic.in 17 the jurisdiction to decide any dispute or question or other matters relating to a Waqf or Waqf property. The paragraph 10, which reads as under :
“10.Thus, the Waqf Tribunal can decide all disputes, questions or other matters relating to a Waqf or Waqf property. The words “any dispute, question or other matters relating to a Waqf or Waqf property” are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Waqf or Waqf property can be decided by the Waqf Tribunal. The word “Waqf” has been defined in Section 3(r) of the Waqf Act, 1995 and hence once the property is found to be a Waqf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Waqf Tribunal.”
40.As per the decision rendered by the Hon’ble Supreme Court in Syed Mohd.Salie Labbai (Dead) by LRs and others V.S Mohd. Honifa (Dead) by LRs and others 1976 (4) Supreme Court Cases 780 following conditions must be satisfied for whether there is dedication of a public nature:-
(i) that the founder must declare his intention to dedicate a property for the purpose of a mosque.
No particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder either express or implied;
(ii) that the founder must divest himself completely from the ownership of the property. The divestment can be inferred from the fact that he had delivered possession to the http://www.judis.nic.in mutawalli or an imam of the mosque. Even if 18 there is no actual delivery of possession the mere fact that members of the Mohomedan public are permitted to offer prayers with azan and ikamat, the Waqf is complete and irrevocable; and
(iii)that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque. As regards the adjuncts the law is that where a mosque is built or dedicated for the public if any additions or alterations, either structural or otherwise, are made which are incidental to the offering of prayers or for other religious purposes, those constructions would be deemed to be accretions to the mosque and the entire thing will form one single unit so as to be a part of the mosque.
41.The Honourable Supreme Court was dealing with an issue relating to burial ground for the muslims. On facts, in para 62, the Court held as follows:
“62.On a consideration, therefore, of the facts, circumstances and the evidence of the present case, we are satisfied that the mosque as also its adjuncts constituted wakf properties and had been used as such for a long time so as to culminate into a valid and binding public wakf. We have already held that as the public character of the wakf was not in issue in the previous judgments relied upon by the appellants, the said judgments did not operate as res judicata. We, therefore, affirm the finding of the High Court on this issue.” http://www.judis.nic.in 19
42.Thus, the application of these principles requires proper adjudication to the facts of the case. Under section 40(3) of the Waqf Act, 1995, if the 1st respondent Waqf board has any reasons to believe that any property of any trust or society registered under any of the enactment mentioned therein is Waqf property, it may notwithstanding anything contained in such Act hold an enquiry with regard to such property and if after such enquiry it is satisfied and the properties are Waqf property, it has to call upon such trust or society as the case may be either to register such property under the Act as Waqf property or show cause why such property should not be so registered.
43. The 1st respondent has to pass an appropriate order after considering such cause as may be shown in pursuance of notice issued under sub-section (3).
44.Thus, it is evident that the Waqf Act, 1995 itself contemplates that a property of the Trust or society registered under either of the enactments can be treated as a waqf property if it satisfies the requirement of the Act.
http://www.judis.nic.in 20
45.In this case, after the 1st remand order was passed by the Waqf Tribunal, by an order dated 13.08.2012 the 1st respondent has concluded that the petitioner Anjuman-E-Mohammadi is a Wakf and has to be registered under the provisions of the Act.
46.The 2nd respondent claimed himself as the secretary of the petitioner was directed and had filed an application with the 1 st respondent pursuant to which a Pro Forma report dated 27.08.2012 was prepared by the 1st respondent.
47.The said order is based on the particular given by the second respondent Janab N.L.Khaja Kamaludeen. The said order had directed to the said Janab N.L.Khaja Kamaludeen to furnish the details within 7days. As the said Janab N.L.Khaja Kamaludeen had already resigned from the petitioner, he could not have furnished the details based on which Pro Forma dated 27.08.2012 was prepared which culminated has in order dated 03.09.2012 of the 1st respondent registering the petitioner as a Waqf bearing Registration No.244/TVLR pursuant to order/letter dated 13.05.2012 bearing reference Proc.No.15035/05/B4/TVR. Copy of the aforesaid order/letter is also not available. It is not clear now such as exercise could have been taken.
http://www.judis.nic.in 21
48.On 03.09.2012 the 1st respondent has also registered the petitioner pursuant to order/letter dated 13.05.2012 bearing reference Proc.No.15035/05/B4/TVR and has allotted registration number No.244/TVR. However, if it is after order dated 13.08.2012 bearing reference Pro.No.15035/05/B4/TVLR of the 1st respondent under Section 40 (3) of the Waqf Act, the petitioner was declared as a Walf, it is not clear how the petitioner could have been registered pursuant order/letter dated 13.05.2012 bearing reference Pro.No.15035/05/B4/TVLR.
49.Under Section 36(7) of the Waqf Act 1995, before registration of a waqf the first respondent has to make inquires regarding genuineness and validity of the application and correctness of any particulars therein by a person administrating the property, and when the application is made by any person other than the person administering the Waqf property the 1st respondent board shall, before registering the waqf, give notice of the application to the person administering the waqf property and shall hear him if he desires to be heard.
50.Though, notice has been given to the petitioner society, the application has been directed to be filed by the 2nd respondent. http://www.judis.nic.in 22
51.It objects are as per Clause 6 of the bye-laws. Therefore, while the property in question Prima facie appears to have been purchased for building a mosque for the benefit of person professing islah in the Baba Nagar of Villivakkam and North Madras areas, however, the property was not registered with 1 st respondent Waqf board under the provisions of the Waqf Act 1954 which was inforce prior to 1995.
52.Whether there was a valid dedication of the property or whether the petitioner is out side purview of Waqf Act and or whether the property was independently to be governed under the provisions of the Waqf Act, 1995 is to be properly determined.
53.These are aspects ought to have been reflected in the order passed by the 1st respondent Waqf Board.
54.Consequently, the order passed by the 1st respondent on 13.08.2012 bearing reference Proc.No.15035/05/B4/TVLR and consequential order dated 03.09.2012 pursuant to order/letter dated 13.05.2012 bearing reference Proc.No.15035/05/B4/TVR of the 1st respondent and impugned order passed by the Waqf Tribunal dated 07.02.2014 in O.A.11 of 2012 are set aside and the case http://www.judis.nic.inremanded back to the 1st respondent for a proper determination. 23
55.Therefore, the case is remanded back to the 1st respondent Waqf Board to pass a fresh order after examining all the aspects after keeping the observation contained herein within a period of six months from the date of receipt of a copy this order.
56.The Civil Revision Petition stands allowed. No costs. Consequently connected Miscellaneous Petition is also closed.
06.06.2019 Index :Yes/No Internet :Yes/No jen Note: Issue Order copy on 05.07.2019.
To
1.I Assistant City Civil Court, (Waqf Tribunal) Chennai.
2.The Executive Officer, TamilNadu Waqf Board, Chennai – 600 001.
3.The Section Officer, V.R.Section, High Court, Madras.
http://www.judis.nic.in 24 C.SARAVANAN, J.
jen Pre-delivery order in C.R.P(NPD).No.2132 of 2014 and M.P.No.1 of 2014 06.06.2019 http://www.judis.nic.in