Madras High Court
A.K.Khalifulla vs S.A. Gulam Rasool on 17 October, 2007
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 17/10/2007 Coram THE HONOURABLE MR.JUSTICE K.CHANDRU CRP.(PD).No.2716 of 2003 and CMP.No.20543 of 2003 and CMP.Nos.2707 and 2708 of 2004 W.P.NO.3511 of 2006 and WPMP.No.3771 of 2006 W.P.No.4294 of 2006 MP.Nos.4523 and 4524 of 2006 W.P.No.4334 of 2006 and WP.MP.No.4572 of 2006 CRP(PD).No.2716 of 2003 1. A.K.Khalifulla 2. Abdul Rahman 3. Syeed Ammeer .. Petitioners Respondents/Defendants vs 1. S.A. Gulam Rasool .. Respondent/Petitioner 2. Tamil Nadu Wakf Board rep. by its Executive Authority No.4, Santhome High Road Chennai 600 004 .. Respondent/4th respondent/Defendant 3.Abdul Khader, (Impleaded as 3rd respondent vide Court ordered dated 27.09.2007 in CMP.No.2708 of 2004) Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 1.9.2003 passed by the Principal Subordinate Judge, Tiruchy in I.A.No. 380 of 2003 in O.S.No. 44 of 1952. !For Petitioners ... Mr.D.Rajendran ^For Respondents ... Mr.K.K.Senthil for R2 Ms.J.Anandhavalli for R1 W.P.NO.3511 of 2006 and WPMP.No.3771 of 2006 Hazarath Nabi Sallalahu Alahi Vassallam Trust, rep. by its Managing Director A.K.Khalifulla ... Petitioner vs 1. The Chair Person The Tamil Nadu Wakf Board Chennai 20. 2. The Chief Executive Officer, Tamil Nadu Wakf Board 7/4, 9th Cross Street Adayar, Chennai 20. 3. The Wakf Superintendent, Central Zone, Office of the Superintendent Kiladhar Street Trichy 620 002. 4. Jb.B.Abdul Kathar ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records pertaining to the impugned order of the first respondent dated 16.3.2006 and the third respondent the Public notice dated 4.4.2006 in G.S.No. 609/ Va.Ka/ Ma.Sa/ Trichy/2005 as published in the Tamil Daily namely Thinathanthi dated 5.4.2006 and quash the same and consequently forbear the respondents 1 to 3 from in any way interfering with the functioning of the petitioner trust with the present trustees till the trustees are being appointed by the Principal Subordinate Judge, Trichy. For Petitioner ... Mr.G.Prabhu Rajadurai For Respondents ... Mr.K.K.Senthil for RR 1, 2 and 3 Mrs.J.Anandavalli for R4. W.P.No.4294 of 2006 & WP.MP.Nos.4523 and 4524 of 2006 S.Abdul Rahuman ... Petitioner vs 1. The Chair Person The Tamil Nadu Wakf Board Chennai 20. 2. The Chief Executive Officer, Tamil Nadu Wakf Board 7/4, 9th Cross Street Adayar, Chennai 20. 3. The Wakf Superintendent, Central Zone, Office of the Superintendent Kiladhar Street Trichy 620 002. 4. Jb.B.Abdul Kathar ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records pertaining to the impugned order of the first respondent dated 16.3.2006 and that of the Public notice dated 4.4.2006 in G.S.No. 609/ Va.Ka/ Ma.Sa/ Trichy/2005 of the third respondent published in the Tamil Daily namely Thinathanthi dated 5.4.2006 and quash the same and consequently forbear the respondents 1 to 3 from in any way interfering with the functioning of the petitioner trust with the present trustees till the trustees are being appointed by the Principal Subordinate Judge, Trichy. For Petitioner ... Mr.G.Prabhu Rajadurai For Respondents ... Mr.K.K.Senthil for RR 1, 2 and 3 Mrs.J.Anandavalli for R4. W.P.No.4334 of 2006 and WP.MP.No.4572 of 2006 S.M.S.Syed Dastagir ... Petitioner -vs- 1. The Tamil Nadu Wakf Board rep. by its Chair person Indhira Nagar Adayar, Chennai. 2. The Superintendent of Wakfs, Tamilnadu Wakf Board No.12, Kilaythar Street,Trichy 2 ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records relating to the proceedings of the first respondent in Item No.22/2004 Rc.10996/C1/ 2003/ TRY dated 8.12.2005 orders passed on 16.3.2006 and the consequential notice issued by the second respondent in his proceedings m/t/vz;/609. jpUr;rp-t/f/-2005 ehs;; 3.4.2006 and quash the same as illegal. For Petitioner ... Mr.M.E.Elango For Respondents ... Mr.K.K.Senthil :COMMON ORDER
The Civil Revision Petition filed under Article 227 of the Constitution of India arises out of an order made in I.A.No.380 of 2003 in O.S.No.44 of 1952 dated 01.09.2003 passed by the Principal Subordinate Judge, Tiruchirappalli.
2. The revision petitioners were respondents before the Trial Judge in the interim application. The first respondent filed an application before the Subordinate Court seeking for a direction to transfer the papers relating to appointment of trustees to be made pursuant to the scheme decree in O.S.No. 44 of 1952 to be dealt with by the Tamil Nadu Wakf Board, Chennai -4. The contention of the petitioner was that in terms of Wakf Act, 1995, more particularly, under Section 15 of the said Act, trustees will have to be appointed only by the Wakf Board.
3.The Principal Subordinate Judge, after hearing both sides, by an order dated 1.9.2003 directed the transfer of the entire papers relating to appointment of trustees pursuant to the scheme decree made in O.S.No.44 of 1952 to the second respondent, Tamil Nadu Wakf Board. Aggrieved by the said order, the present Civil Revision Petition is filed. The contention was that once the Civil Court frames a scheme decree, it can only be dealt with by the Civil Court and neither the Wakf Board nor the Wakf Tribunal will have any jurisdiction over the same.
4. The Civil Revision Petition was admitted on 18.12.2003. An Interim stay was also granted in CMP.No. 20543 of 2003. Subsequently, one Abdul Khadhar filed an application for impleading himself in the Civil Revision Petition by filing CMP.No. 2708 of 2004. The said person stated that even though he was a third party in the Civil Revision Petition as he had filed an application in I.A.No. 110 of 2003 for the appointment of trustees and he being a male heir in the female line of the founder of the trust he should be made as party in the civil revision petition. He also stated that even though he had initiated action for the appointment of trustees, he was not impleaded. Further the existing office bearers' term was already over and therefore, there was urgent necessity to hear the matter. He was also impleaded by the order of this Court dated 27.9.2007.
5. During pendency of the Civil Revision Petition, Hazarath Nabi Sallalahu Alahi Vassallam Trust, represented by its Managing Director, A.K.Khalifulla, (first revision petitioner in the Civil Revision Petition) filed W.P.No.3511 of 2006 and wanted to set aside the proceedings of the Wakf Board and consequently the press notification dated 4.4.2006 inviting applications for the appointment of trustees to the Wakf. This writ petition was admitted on 24.4.2006. In WP.MP.NO.3771 of 2006, only notice was ordered.
6.Thereafter, one S.Abdul Rahuman, who was the second petitioner in the Civil Revision Petition filed W.P. No.4294 of 2006 and also questioned the very same paper publication as in the case of W.P.No. 3511 of 2006. The said writ petition was directed to be posted along with W.P.No. 3511 of 2006 and status quo was ordered by an order dated 24.5.2006.
7.One SMS.Syed Dastagir filed another W.P.No.4334 of 2006 challenging the order of the Wakf Board dated 3.4.2006 which stated that as per the scheme decree in O.S.No. 44 of 1952, further amended by A.S.No. 666 of 1954 and by the order of the learned Principal Subordinate Judge in I.A.No. 380 of 2003 dated 1.9.2003, two trustees were to be appointed and that shortly announcement will be made in the Press. The said person claims that he was the grandson of the founder of the Trust and that the Wakf Board cannot appoint any person to the Board of Trustees. This writ petition was admitted on 31.5.2006 and directed to be posted along with other writ petitions.
8. All these matters came to be posted before this Court by the orders of the Honourable Mr.Justice P.D.DINAKARAN dated 1.8.2007. Accordingly, the matters were heard together.
9. Heard the arguments of Mr.G.Prabhu Rajadurai, learned counsel appearing for the petitioners in WP.No. 3511 of 2006 and W.P.No. 4294 of 2006 and also the arguments of Mr.K.K.Senthil, learned counsel appearing for respondents 2 and 3 in W.P.No.3511 of 2006; for respondents 1, 2 and 3 in W.P.No.4294 of 2006; for respondents 1 and 2 in W.P.No.4334 of 2006 and for respondent 1 in CRP.No. 2716 of 2003. Heard Ms.J.Anandavalli, learned counsel appearing for respondent 4 in W.P.Nos.3511 of 2006 and 4294 of 2006 and for respondent 2 in CRP.No.2716 of 2003. Heard Mr.M.E.Elango, learned counsel appearing for the petitioner in W.P.No. 4334 of 2006 and Mr.D.Rajendran, learned counsel appearing for the revision petitioner in CRP. No.2716 of 2003 and have perused the records.
10. All the learned counsel have agreed that the disposal of the Civil Revision Petition will dispose of all the three writ petitions also and therefore, the Civil Revision Petition was heard first.
11. The short question that arises for consideration is that subsequent to the enactment of the Wakf Act, 1995, whether the Wakf Board has jurisdiction to decide all matters arising out of the schemes evolved by the Civil Court. It was contended by the revision petitioners that the order of the Principal Subordinate Judge was erroneous and the learned Judge ought not to have transferred the matters to the Wakf Board as the scheme decree was made by the Civil Court.
12.In this context, the learned counsel for the petitioners referred to the following decisions of this Court as well as the decision of the Andhra Pradesh High court.
(1) PALNI MUSLIM DHARMAPARIPALANA SANGAM v. WAKF BOARD [1975 (1) M.L.J. 201] (2) SYED PEER SHAH MOHIDEEN KADIRI v. T.N. WAKF BOARD BY ITS SECRETARY [89 L.W. 108) (3) THE EXECUTIVE COMMITTEE OF THE MASJID-E.FARKHUNDA & OTHERS v. P.A.G.HUSSAIN MOULANA & OTHERS [1996-2-L.W.788] (4) AMJADULLA SIDDIQUI v. MIRZA NIZAMUDDIN BAIG [AIR 1982 ANDHRA PRADESH 342]
13. In the judgment of PALNI MUSLIM DHARMAPARI-PALANA SNGAM, (cited supra), it was held that if the said Wakf Board is not satisfied with the functioning of the sangam with reference to the wakf properties, it is open to the Wakf Board to apply to the Civil Court for modification of the scheme or to institute a suit for settling a new scheme.
14.In this context, the following passage found in para 7 was referred to, "........ the Act does not confer any power on the Wakf Board to ignore the scheme or to do anything contrary to the terms of the scheme decree. There is no provision whatever in the Wakfs Act, 1954 enabling the State Wakf Board to ignore a decree of the civil court settling a scheme for the administration of the Wakf and to take action contrary to the terms of the scheme decree in the purported exercise of its powers of general Superintendence. "
15. In SYED PEER SHAH MOHIDEEN KADIRI case, (cited supra), in para 3, it was observed as follows:-
"It is in this way that the controversy has thus been considerably watered down.
There are three judgments of our Court which practically conclude the matter. The first one is reported in C.S.Peeran v. State Wakf Board, Venkatadri, J has observed that once a special Act comes into force for the purpose of securing better administration and supervision of Wakf properties and concurrently creates an obligation and enforces the performance in a specified manner, the rule is that the performance cannot be enforced in any other manner. This is based on the well-known principle that the special excludes the general and also the maxim that a special prescription, which has been made to exercise a power, cannot be substituted by another one not provided for by an enactment or under the common law. This judgment of Venkatadri, J was approved by N.S.Ramaswami, J in Application No. 674 of 1971 in C.S.No. 307 of 1934 (Special Officer for Wakfs, Madras v. S.B.Fazluddin and others). Alagiriswami,J again sitting on the original side in Application No. 1078 and 1079 of 1968 in C.S.No. 159/1931 (Mohamed Ziauddin v. Noorulla Sahib) reiterated the said principle in an exhaustive, reasoning given by him......."
16. In the third decision, (cited supra) the view taken by the EXECUTIVE COMMITTEE OF THE MASJID-E.FARKHUNDA (cited supra) the Division Bench after referring to previous cases held that a scheme decree framed by a Civil Court will not suspend or affect the operation of the scheme decree passed by the Civil Court.
17. The Andhra Pradesh High court in AMJADULLA SIDDI-QUI case (cited supra), agreed with the line of reasonings rendered by the decisions of this Court referred to above.
18. Per contra the learned counsel for the contesting respondents referred to a judgment reported in T.S. YUSUF v. TAMIL NADU WAKF BOARD (AIR 1982 MADRAS
115) wherein following passages is found:
"The learned counsel for the petitioners contended that unless the scheme is amended, the nomination of the three trustees from among the Muslim residents of the Tiruchy cannot be done by the Wakf Board. As the nomination of the three trustees from among the Muslim residents of Tiruchy as per the scheme is only an act of administration which the Wakf Board is competent to perform under Section 15 of the Wakf Act, it is unnecessary to go in for amendment of the scheme before this power can be exercised by the Wakf Board.
The learned counsel for the petitioners next contended that the Wakf Board can appoint trustees under the Wakf Act and not in pursuance of the scheme framed by the Court. This argument again overlooks the fact that the power of superintendence, control and administration vested with the Board under Section 15, carries with it the power to appoint trustees for the management and administration of the wakf properties. The order of the trial court is accordingly confirmed."
19.In the judgment, relating to SALAM KHAN v. THE TAMIL NADU WAKF BOARD AND OTHERS reported in [2005-1-L.W.676], a Division Bench of this Court presided over by M.Katju, Chief Justice(as he then was) dealt with the new Act. Particular reference was drawn to passages found in para 3 and 6 in the judgement which are reproduced below:-
"Para 3. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a special Tribunal for deciding disputes relating to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of petitions relating to Wakfs were being filed in the Courts in India and they were occupying a lot of time of all the Court in the country, which resulted in increase in pendency of cases in the Courts. Hence, a special Tribunal has been constituted for deciding such matters.
.................
Para 6. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf 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 Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. It is not proper for this Court to straight away entertain writ petitions relating to a Wakf or Wakf property when there is a special Tribunal constituted for this purpose. "
20. The very same Division Bench, in a subsequent case relating to MUKRAM SHERIF v. MOINUDEEN SHERIFF & ANOTHER [2005-2-L.W.615], reiterated the previous decision. It was also noted that as against the judgment in SALAM KHAN's case (cited supra), a Special Leave Petition was filed and the same was dismissed by the Supreme Court in SLP (C)No. 4156 of 2005.
21. While the learned counsel for the revision petitioners contended that the provisions of Wakf Act, 1954, which has now been repealed by Section 112 of the Wakf Act, 1995, there is no perceptible change between the two enactments, therefore, the judgments rendered under the old Act, which were cited by them still have operation even for interpreting under the new Act. Therefore, the new Act will have to be interpreted in terms of the decisions cited by him.
22. This argument overlooks the object of enacting the new enactment by the Parliament. In fact the present enactment viz., The Wakf Act, 1995 (Act 43 of 1995) was made with the object of providing better administration of Wakf as found in the preamble portion of the Act. The statement of objects and reasons appended to the Act also states that the main object was to provide for a better management of all Wakfs and also appointment of a Wakfs Tribunal to consider all questions and disputes pertaining to the Wakf.
23.Section 32 of the Wakf Act, 1995 provides for powers and functions of the Board, which is as follows:-
"Section 32 : Powers and functions of the Board.- (1)Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended:
Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the school of Muslim law to which the wakf belongs. Explanation.- For the removal of doubts, it is hereby declared that in this sub- section, "wakf" includes a wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act. (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-
(a) .......
(b) .......
(c) .......
(d) to settle schemes of management for a wakf;
(e)........
(f) .......
(g) to appoint and remove mutawallis in accordance with the provisions of this Act;"
24. Under Section 83 of the Act a Wakf Tribunal has been constituted for the purpose of deciding any dispute, question or other matter relating to the Wakf or Wakf property. Under Section 83(4) of the Act, the Tribunal is to be presided over by a member drawn from the State Judicial Service, not below the rank of a District Sessions Judge. Under Section 83(5) of the Act, the Tribunal is having the power of a Civil Court. Under Section 83(9) of the Act, an appeal has been provided to this Court either through a suo motu revision power or on an application of the Board or by application of any person aggrieved this Court can revise the orders of the Tribunal. Under Section 85 of the Act, the jurisdiction of the Civil Courts are barred.
25.In the light of this legislative development, the arguments of the petitioners that the interpretation given under the old Act should continue to be governed for dealing with the provisions of the new enactment is only stated to be rejected. In fact when Parliament makes a new law and intends to remove any mischief under the old laws the attempt of this Court must be to try to interpret the same in tune with the object of the new enactment. It cannot put the clock back as contended by the learned counsel for the revision petitioners.
26.Under the old enactment of 1954, there was neither any judicial Tribunal constituted nor power was given to the Wakf Board to modify the schemes made by the Court of law, either before or after the commencement of 1995 Act as found in the explanation to the proviso provided under Section 32. Further sub- sections (d) and (g) of Section 32, the Wakf Board has also been given powers to appoint Mutawallis for various wakfs and frame schemes. Though the judgment rendered by the Division Bench, presided over by the Honourable Chief Justice Markandey Katju (as he then was), dealt with a case of the petitioner approaching a writ court, yet, the interpretation given to 1995 Act in the case relating to SALAM KHAN's case will apply to this case in all its four corners. Therefore, there is no substance in the argument of the revision petitioners. Hence, the Civil Revision Petition shall stand dismissed. Consequently, connected CMP is also dismissed. No costs.
27. In the light of the order of the Principal Sub-ordinate Judge transferring the matters relating to the appointment of trustees pursuant to the scheme decree in O.S.No. 44 of 1952 on the file of the Principal Subordinate Judge, Tiruchirapalli, the Wakf Board shall proceed to decide the matter in accordance with law and after notice to parties.
28.In view of the above the other writ petitions challenging the proceedings of the Wakf Board will have to necessarily fail and accordingly all the three writ petitions shall stand dismissed. Connected MPs are also dismissed. No costs.
To
1.The Principal Subordinate Judge, Tirunelveli.
2.The Executive authority, Tamil Nadu Wakf Board, No.4 Santhome High Road, Chennai-4.
3.The Chair Person, Tamil Nadu Wakf Board, Chennai-20.
4.The Chief Executive Officer, Tamil Nadu Wakf Board, 7/4, 9th cross Street, Adyar, Chennai -20.
5.The Wakf Superintendent, Central Zone, O/o. The Superintendent, No.12 Kiladhar Street, Trichy - 620 002.