Madras High Court
Mahboob Basha vs Tamil Nadu Wakf Board on 25 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25.7.2012 Coram: THE HONOURABLE MR JUSTICE G.RAJASURIA C.R.P.NPD.Nos.1816 & 2164 of 2012 and M.P.No.1 of 2012(in both) 1.Mahboob Basha ... Petitioner in C.R.P.NPD.No.1816 of 2012 S.Y.Umar Khan ... Petitioner in C.R.P.NPD.No.2164 of 2012 vs. 1. Tamil Nadu Wakf Board, rep.by its Chief Executive Officer, Chennai-1. ... 1st respondent in both the revisions 2. A.S.Mahoob Basha ... 2nd Respondent in C.R.P.No.2164 of 2012 Civil revision petitions filed against the order dated 5.3.2012 passed by the Principal District Judge, Chelglepet, in I.A.No.159 of 2011 in O.S.No.11 of 1934. C.R.P.No.1816 of 2012 Mr.M.M.Abdul Razack M/s.S.Hajamohideen Gisthi C.R.P.No.1816 of 2012 Mr.A.Jenasenan for petitioner Mr.S.Hajamohideen Gisthi for Respondents COMMON ORDER
Animadverting upon the order dated 5.3.2012 passed by the Principal District Judge, Chelglepet, in I.A.No.159 of 2011 in O.S.No.11 of 1934, these civil revision petitions are filed.
2. Compendiously and concisely, the germane facts absolutely necessary for the disposal of these civil revision petitions would run thus:
(i) The Wakf by name, Hazarath Syed Sha Hamed Owlia Darga, is covered by a scheme decree. While so, the District Court, which happened to be the Court, which formulated the scheme earlier, every now and then passed the orders appointing Muthavallies and also enabling the wakf to function.
(ii) In those circumstances, the Tamil Nadu Wakf Board, represented by its Chief Executive Officer, Chennai-1, filed I.A.No.159 of 2011 seeking the following relief:
"to pass orders transferring and vesting the administration and general superintendence of the suit wakf, namely,and its properties including the appointment of the trustees as per the scheme decree."
(extracted as such)
(iii) Mahboob Basha-the petitioner in C.R.P.No.1816 of 2012 filed the counter raising various pleas.
(iv) After hearing both sides, the Scheme Court, namely, the Principal District Judge, Chengleput, passed the order dated 5.3.2012, the operative portion of which would run thus:
"17. In the result, the petition is allowed with the following conditions. The petitioner Tamil Nadu Wakf Board has to examine the scheme decree passed in O.S.No.11 of 1934 and enforced its authority as provided under the provisions of the Wakf Act, 1995. It is open to the petitioner Wakf Board to examine whether or not the appointment of fresh office bearers under the scheme should be made afresh or permit the present set of office bearers for any particular length of time. In order to avoid practical difficulty ith is further directed that the present set of office bearers have to continue for a period of three months and the petitioner Board is also at liberty to appoint or authorise any of its Executive Officer to function along with the present set of office bearers for the proper and clean administration of the Wakf and its properties during the above period of three months."
(extracted as such)
3. Being aggrieved by and dissatisfied with the said order, Mahboob Basha, who claimed to be the trustee appointed by the Scheme Court earlier, filed the C.R.P.No.1816 of 2010.
4. Challenging the same order, one other C.R.P., namely, C.R.P.No.2164 of 2012 was presented with the leave petition by the Treasurer of the Wakf, namely, S.Y.Umar Khan, who was also earlier appointed by the Scheme Court, on the ground that he was not impleaded in the I.A.No.159 of 2011 and heard before passing the said order.
5. Heard all concerned.
6. The point for consideration is as to whether the Scheme Court, even after the coming into vogue of the Wakf Act, 1995, and more specifically the provisions as contained in Section 32 of the Act, had jurisdiction to pass the impugned order?
7. The learned counsel for the revision petitioner in C.R.P.No.1816 of 2012-Mahboob Basha would pilot his arguements, which could pithily and precisely be set out thus:
(i) The Chief Executive Officer had no jurisdiction to petition the Executing Court and he was not authorised by the Board also to file such application and such an official could not have filed, legally, the said petition, but the Court failed to take note of the same.
(ii) The Wakf itself was not impleaded as one of the respondents.
Accordingly, he would pray for setting aside the impugned order.
8. The learned counsel for the revision petitioner in C.R.P.No.2164 of 2010-S.Y.Umar Khan would put forth and set forth his arguements, the gist and kernal of them would run thus:
Even though S.Y.Umar Khan (the petitioner in C.R.P.No.2164 of 2012) happened to be the Treasurer of the said Wakf, he was not arrayed as one of the respondents and simply the order was passed behind his back, warranting interference in the revision. At any rate, the entire order has to be set aside.
9. The learned counsel for the the Tamil Nadu Wakf Board would submit that after the commencement of the Wakf Act, 1995, more specifically, Section 32 of the Act, the Wakf Board, which has been vested with enormous powers to deal with Wakfs, both the past and future. When such is the enormous power, the revision petitioners cannot challenge the order passed by the Scheme Court.
10. I would like to fumigate my mind with the following provision of the Wakf Act, 1995:
"Sec.32.Powers and functions of the Board (1) Subject to any rules that may be made under this Act, the general suprintendence of all wakfs in a State shall vest in the board esteablished 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."
11. I would like to lay stress upon the explanation appended to Sub-Section (1) of Section 32 of the Act, which unambiguously and unequivocally highlight and shed light that Wakf Board has been conferred with enormous statutory powers to deal with even the Wakfs covered by Scheme decrees formulated by the Court.
12. A plain reading of the said provision will leave no doubt in the mind of the Court that such statutory body, irrespective of any Court decree or order already governing such Wakf under any scheme, can exercise its power. While exercising its power, how the Board should conduct itself is found exemplified in Section 32 of the Act itself and I need not dilate or elaborate on that because as of now, this Court is not enjoined to deal with those aspects in extenso.
13. The only point to be considered is as to whether the Chief Executive Officer, on behalf of the Board was justified in approaching the Court seeking permission?
14. I recollect the following maxims:
(i) Verba generalia generaliter sunt intelligenda.- General words are to be understood generally.
(ii) Verba its sunt intelligenda, ut res magis valeat quam pereat. Words are to be so understood that the matter may have effect rather than fail.
15. I would like to refer to the famous treatise 'Maxwell on the interpretation of Statutes 12th Edition'. Certain excerpts from it would run thus:
"The mischief rule:
In Heydon's Case, in 1584, it was resolved by the Barons of the Exchequer (at p.7b) "that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st). What was the common law before the making of the Act. (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th). The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono public." In 1898, Lindley M.R.said: "In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon's Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief." Although judges are unlikely to propound formally in their judgements the four questions in Heydon's Case, consideration of the "mischief" or object of the enactment is common, and will often provide the solution to a problem of interpretation.
In the well-known case of Smith v. Hughes, for example, it was held that prostitutes who attracted the attention of passers-by from balconies or windows were soliciting "in a street" within section 1(1) of the Street Offences Act 1959. "For my part," said Lord Parker C.J. (at p.832), "I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes." Viewed in that way, the precise place from which a prostitute addressed her solicitations to somebody walking in the street became irrelevant."
"The golden rule:
The so-called "golden rule" is really a modification of the literal rule. It was stated in this way by Parke B.: "It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further." "If," said Brett L.J., "the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though note its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning." The application of this rule, and its limits, will be seen in the parts of this work devoted to construction with reference to the consequences, and construction to avoid inconvenience and injustice, and to prevent evasion. Here, a few recent examples of the application of the golden rule will be given.
Construction of words "in Bonam Partem":
Words are prima facie to be taken in their lawful and rightful sense. Where an Act, for instance, gave a certain efficacy to a fine levied on land, it referred only to a fine lawfully levied. The landlord's claim to recover arrears of rent out of goods seized in execution by the bailiff of a county court under section 160 of the County Courts Act 1888 depended upon whether the seizure was lawful: if the goods did not belong to the debtor, and the seizure was consequently unlawful, the claim under the section could not arise. A similar principle was applied to the construction of a covenant by a tenant to pay all parliamentary taxes: it included only such as he might lawfully pay, and not the landlord's property tax which it would have been illegal for him to agree to pay."
16. The cumulative reading of those maxims and the above general interpretation of statutes would amply and unequivocally, pellucidly and palpably highlight the point that once the statutory authority, namely Wakf Board, has been vested with the power to deal with the Wakfs of all kinds, including the ones already covered by any Court judgement or scheme decree, then such statutory authority, namely, the Wakf Board is not enjoined to go before the Court and seek permission to take over the control from the Court to that of itself. But this basic principle has not been considered by the lower Court.
17. The lower Court, in the above judgement cited supra, simply assumed and presumed as though despite passing of the Wakf Act, 1995, it had jurisdiction and could give directions as contained in the impugned order. Such a course would be totally antithetical to the object of the Wakf Act and no more elaboration in this regard is required.
18. As such, I would like to set aside the order passed by the lower Court, giving liberty to the Board to act as per Section 32 of the Wakf Act, 1995, adhering to the principle of audi alteram partem.
19. The civil revision petitions are ordered accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petitions are closed.
msk To The Principal District Judge, Chelglepet