Madras High Court
Mss Wakf Board College, Rep. By Its ... vs Haji M. Mohamed Ali Jinnah And Ors. on 9 September, 2005
Equivalent citations: (2005)4MLJ262
Author: P. Sathasivam
Bench: P. Sathasivam, T.V. Masilamani
ORDER P. Sathasivam, J.
1. Since the issues raised in these writ appeals are inter connected, they are being disposed of by the following common judgment.
2. Aggrieved by the common order, dated 22.12.2004, made in W.P. (MD) Nos. 1007, 1411 and 1461 of 2004, of the learned Single Judge issuing certain directions for receipt of annual subscription and admission of the writ petitioners as members of General Body and also to furnish the list of members of M.S.S. Wakf Board College, Madurai, to all the writ petitioners, MSS Wakf Board College, Madurai, through its Secretary and Correspondent, has filed Writ Appeals 6 to 8 of 2005.
3. Against the dismissal of W.P. (MD) No. 6243 of 2005, dated 20.7.2005, by another learned Single Judge, at the admission stage, filed for quashing the communication of Chairperson, Tamil Nadu Wakf Board, dated 5.7,2005, appointing Mrs. I. Nazneen as Secretary and Correspondent of MSS Wakf Board College, Madurai, the writ petitioner therein, namely, Musthak Shaw Sahib Surgru @ M.S. Shaw, has filed Writ Appeal No. 322 of 2005.
4. The brief facts are as follows:
(a) MSS Wakf Board College, appellant in Writ Appeal Nos. 6 to 8, is a minority institution and the Constitution of the same is governed by G.O. Ms. No. 1127, Commercial Tax and Religious Endowments Department, dated 9.9.1978. As per the said Government Order, MSS Wakf Board College, Madurai, had come into existence on account of compromise decree passed by the High Court in A.S. No. 435 of 1964 between the Tamil Nadu State Wakf Board and the Founder. The said college is offering educational facilities to the public at large.
(b) MSS Wakf Board College was started in a rental building, initially and subsequently shifted to the site donated by the Government of Tamil Nadu. The college and its properties have been notified as Wakf Properties by the Tamil Nadu Wakf Board under the old Wakf Act, 1954. The affairs and administration of the college are controlled by Administrative Bodies called Government Body, Executive Committee and General Body. G.O.Ms. No. 1127 indicate the details of their composition and the powers of the college Administrative Bodies. The Chairperson of the Tamil Nadu Wakf Board shall be the Chairman of the Governing Body, Ex-Officio and likewise the Secretary and Correspondent nominated in terms of Clause (2)(1)(a) of the Constitution shall also be the secretary of the Governing Body. The Governing Body shall be answerable to the Madurai University, the Director of Collegiate Education, Tamil Nadu State Wakf Board and the Government of Tamil Nadu.
(c) There are 51 General Body members and the strength of Governing Body is 10 (out of 11 members) in the Administrative Bodies of the College. The Constitution of the College also indicate enrolment of General Body members. The last expansion of General Body members took place in 1992 as per Government Order by effecting due paper publication by the Chairperson of the Governing Body on the basis of the directions of the Government and the Wakf Board. The Chairman and Secretary of the Governing Body shall act in the same capacity of the Executive Committee and the General Body.
(d) It is the claim of the College that the policy of expansion of members squarely rests with the Wakf Board and the Government and they are competent to accept or reject the proposal of the Governing Body also. The Constitution of the College also says that the sanction and concurrence of the Government shall be obtained whenever any deviation from the Constitution of the College is contemplated.
(e) After resignation of Mr. Saliha as Secretary and Correspondent of the College, Dr. M. Amanullah was appointed on 26.4.2004. It is also the claim of the college that before the appointment of Dr. Amanullah, one Mr. Jamalueein was functioning as Secretary and Correspondent of the College for a brief period and he unauthorisedly, collected amounts from the public and also from the writ petitioners for enrolling them as members of the General Body of the College. Since he had no authority to collect any amount from the public or to hold meeting on his own, all the amounts collected were ordered to be returned to the persons concerned, including the writ petitioners.
(f) One Hajee Mohammed Ali Jinnah has filed W.P. (MD) No. 1007 of 2004 praying for a direction to MSS Wakf Board College to furnish list of members of the College to him. In W.P. (MD) No. 1411 of 2004, one Janab S. Ibrahim and 28 others prayed for a similar direction and to receive from them a sum of Rs. 100 towards membership renewal fee for the year 2004. In W.P. (MD) No. 1461 of 2004, one M. Bishmillahkhan prayed for a direction to the MSS Wakf Board College to receive a sum of Rs. 100 towards membership renewal fee from him for the year 2004. By common order, dated 22.12.2004, the learned Single Judge, after finding that since all the petitioners are Muslims and membership of the General Body is open to all the Muslims and once the amount is received they become members of the General Body, issued directions to the MSS Wakf Board College to receive the amount of annual subscription and also admit them as members of General Body of the MSS Wakf Board College. In the same order, the learned Single Judge has also directed to furnish list of members of MSS Wakf Board College to all such persons. Against this, as said earlier, MSS Wakf Board College has filed W.A. (MD) Nos. 6 to 8 of 2005.
(g) Since the term of the elected members of the Governing Body of MSS Wakf Board College, Madurai has expired on 4.7.2005 and also the Secretary and Correspondent is one of the persons elected as a member of the Governing Body, whose term also expired, as per the direction of the Government in their letter, dated 4.7.2005, the Chairperson of the Tamil Nadu Wakf Board, in her letter dated 5.7.2005, appointed one Mrs. I. Nazneen as Secretary and Correspondent of MSS Wakf Board College, Madurai, for smooth functioning of the institution. The said order was challenged by one M.S. Shaw in W.P. (MD) No. 6243 of 2005. By order, dated 20.7.2005, another learned Single Judge, accepting the stand taken by the Government and the Chairperson of the Tamil Nadu Wakf Board, dismissed the said writ petition, against which the said M.S. Shah has preferred Writ Appeal No. 322 of 2005.
5. Heard Mr. R. Muthukumarasamy, learned Senior Counsel, for the appellants in W.A. Nos. 6 to 8, Mr. Vijay Narayanan, learned Senior Counsel, for the contesting parties, namely writ petitioners, Mrs. C. Ambujam Selvarani, Special Government Pleader, for Respondent No. 2 in W.As. 6 and 7 of 2005, Respondent No. 30 in W.A. 8/2005 and Respondent No. 1 in W.A. 322 of 2005 and Mr. G.R. Swaminathan, learned Counsel appearing for the appellant in W.A. No. 322 of 2005.
6. Mr. R. Muthukumarasamy, learned Senior Counsel, at the foremost raised an objection regarding maintainability of the writ petitions against MSS Wakf Board College, particularly against the Governing Body of the College, since there is no public duty attached to it. He also raised a contention, inasmuch the writ petitioners have effective alternative remedy, namely Wakf Tribunal, to vindicate their grievance, the writ petitions are not maintainable. Regarding merits, learned Senior Counsel contended that in the light of the Constitution of MSS Wakf Board College, Madurai, and various clauses therein, the direction of the learned Single Judge to accept their payment and make them as members of the Governing Body cannot be sustained and liable to be set aside.
7. On the other hand, Mr. Vijay Narayanan, learned Senior Counsel, submitted that first of all this objection was not raised before the learned Single Judge and the College subjected to the jurisdiction of this Court. Secondly, considering the constitution of the Governing Body, Executive Committee, etc. and the control of the State Government over the aforesaid college, the writ petitions are maintainable. He further submitted that even with the availability of alternative remedy, this Court has jurisdiction to consider the grievance of the writ petitioners. Regarding merits, he supported the order of the learned Single Judge.
8. Mr. G.R. Swaminathan, learned Counsel appearing for the appellant in W.A. (MD) No. 322 of 2005 would submit that the appointment of one I. Nazneen as Secretary and Correspondent of the College is contrary to the various clauses of the Constitution of the College and the learned Single Judge failed to consider the same. Mr. R. Muthukumarasamy, learned Senior Counsel, by taking us through the relevant clauses in the Constitution of the College and pointing out that as a temporary measure, the Chairperson of the Wakf Board is fully justified in appointing Mrs. I. Nazneen as Secretary and Correspondent of the College. He also submitted that the Government having control over the Wakf Board authorised the chairperson of the Tamil Nadu Wakf Board to make alternative/suitable arrangement and hence the learned Single Judge is perfectly right in dismissing the writ petition filed by M.S. Shaw.
9. We have perused the relevant materials and considered the rival contentions.
10. Coming to the maintainability and alternative remedy, it is not in dispute that the College is offering education facilities to public at large and the same is functioning in the site donated by the Government of Tamil Nadu. The College and its properties have been notified as Wakf Properties by the Tamil Nadu Wakf Board under Wakf Act, 1954. It is also brought to our notice that the affairs and administration of the College are controlled by Administrative Bodies called Governing Body, Executive Committee and General Body. The Government by G.O. Ms. No. 1127 detailed their composition and the powers of the College Administrative Bodies.
11. The Governing Body shall consist of the following eleven members.
1. The Chairman of the Tamil Nadu State Wakf Board;
2. A nominee of the Tamil Nadu State Wakf Board (either from amongst its members or an expert from outside);
3. A member of the family of the original donor (Sirguro family) as nominated by the family;
4. The Principal of the College - Ex-officio;
5. A representative of the Madurai University;
6 to 9. Four members elected from among the members of the executive Committee; and 10 & 11. Two nominees of the State Government.
The Executive Committee consists of 25 members and the members of the Governing Body will be Ex-Officio members of the Executive Committee.
The General Body will consists of Muslims. Such of those who donate Rs. 35,000 in lump sum shall be admitted as patrons and those who contribute Rs. 2,500 in lump sum of entrance and also Rs. 100 per month from the subsequent year shall be admitted as members of the General Body.
The sanction and concurrence of the Government shall be obtained whenever any deviation from the Constitution of the College is contemplated. The College is also answerable to the Madurai Kamaraj Univesity, the Director of Collegiate Education, Tamil Nadu State Wakf Board and the Government.
12. All the above details show that the Tamil Nadu Wakf Board and the State Government have control over the affairs of the College. In such circumstances, it cannot be claimed that the writ petitions are not maintainable. On perusal of the above materials, we hold that the writ petitions are maintainable.
13. Coming to the alternative remedy, though Wakf Tribunal is the appropriate authority, considering the relief prayed for by the writ petitioners and of the fact that, as rightly pointed by Mr. Vijay Narayanan, learned Senior Counsel for the writ petitioners, the said objection relating to jurisdiction has not been raised before the learned Single Judge, we are of the view that merely because alternative remedy is available, the appellant College is not permitted to raise this objection at this stage. In other words, as rightly pointed out, having subjected to the jurisdiction of the learned Single Judge and participated in the proceedings, without raising such objection, the contention relating to existence of alternative remedy is liable to be rejected.
14. Coming to the merits of the order, the grievance of the writ petitioners is that since all of them are Muslims and also paid requisite amount as entrance fee, the College ought to have admitted them as members of the General Body. The learned Single Judge, after finding that in the absence of scrutiny or control or restriction in the Constitution of the College, issued directions to admit them as members of the General Body. The relevant clause relating to General Body and its constitution is as follows:
"VII. GENERAL BODY A. Constitution.--
(a) The General Body will consist of Muslims. Such of those who donate Rs. 35,000 in lump sum shall be admitted as patrons and those, who contribute Rs. 25000 (Amended vide Government Letter No. 46004A/XIII(1)/79-l C.T. and R.E. Department, dated 23.10.1979) in lump sum of entrance and also Rs. 100 per annum from the subsequent year shall be admitted as members of the General Body. Contributions paid will not be refunded on any account.
(b) Donations in kind will be excluded for the purpose of membership fees.
(c) Only those who have paid the annual subscriptions upto date will have voting powers from the second year of their membership.
(d) Membership may be open to persons not only from Madurai but also from other places.
(e) Members who fail to pay their annual contribution of Rs. 100 for three consecutive years shall automatically cease to be members of the General Body and they shall also forfeit the contribution paid for admission and also subsequent annual contributions.
(f) The Chairman and the Secretary and Correspondent of the Governing. Body and the Executive Committee shall always serve as such in the General Body."
15. It is not in dispute that any one being Muslim and pays necessary entrance fee is to be admitted as member of the General Body. However, as rightly pointed out by Mr. R. Muthukumarasamy, learned Senior Counsel, in the light of the language used in Sub-clause (a) of Clause VII, on remittance of entrance fee, it is not automatic to become a member of the General Body, but the person or persons have to be 'admitted' either as patrons or members of General Body. We have already referred to the fact that the Chairman and the Secretary and Correspondent of the Governing Body and the Executive Committee always serve as such in the General Body.
16. Clause VIII of the Constitution of the College speaks about disqualification. A member shall be disqualified--
"(a) if he is found to be of unsound mind;
(b) if he is found to be an undischarged insolvent;
(c) if he is convicted of an offence involving moral turpitude; or
(d) if he had been on any previous occasion removed from Court from any position of trust either for mismanagement or corruption."
17. All the above details make it clear that the person or persons concerned must be a Muslim and subject to disqualification prescribed in Clause VIII, they are to be admitted as member of the General Body by the competent authority/authorities. Inasmuch as the Chairman and Secretary of the Governing Body and the Executive Committee shall act in the same capacity in the General Body, as rightly pointed out by Mr. R. Muthukumarasamy, learned Senior Counsel, the policy of expansion of members rests with the Wakf Board and Government and they are competent to accept or reject the proposal of the Governing Body also. The Constitution of the College also clearly says that the sanction and concurrence of the Government shall be obtained whenever any deviation from the Constitution of the College is contemplated.
18. A perusal of the various clauses in the Constitution of the College makes it clear that the expansion of the General Body of the College is a matter of policy which can be taken by the appellant college with the approval of the Wakf Board and the Government. Hence the learned Single Judge committed an error in holding that once the amount is paid by any Muslim they become members of the General Body. We are also unable to accept the observation of the learned Single Judge that the Constitution of the College does not prescribe and nowhere it is stated that the patrons and members of the General Body have to be admitted only with the consent of the Government/Wakf Board. As rightly pointed out by Mr. R. Muthukumarasamy, learned Senior Counsel, the said finding is based on misreading of the Constitution of the appellant College, in which it is clearly mentioned that the. Chairperson of the Tamil Nadu State Wakf Board shall be Ex-Offico Chairman of the Governing Body of the College and, therefore, any membership expansion can be made based on the recommendation of the Governing Body and with the final approval of the Wakf Board and Government.
19. Further, inasmuch as enrolment or expansion of the General Body is a matter concerning the indoor management of the appellant college, the learned Single Judge ought not to have issued direction beyond the relief prayed for in the writ petitions. With the materials placed, we are satisfied that the expansion of membership is a matter of policy and final decision lies with the Wakf Board and the Government. In such circumstances, no positive direction in the form of mandamus is maintainable regarding such matters. With the materials placed and in the light of various clauses in the Constitution of the College, as referred above, we are of the view that the learned Single ought to have dismissed all the writ petitions.
20. Regarding the appointment of Mrs. I. Nazneen as Secretary and Correspondent of the College, it is seen that the Chairperson of the Tamil Nadu Wakf Board wrote a letter on 1.7.2005 to the Government stating that the term of four selected members of the Executive Committee expires on 4.7.2005 and to avoid vacuum in the functioning of the institution, requested the Government of Tamil Nadu that the Chief Executive Officer of the Wakf Board be permitted to function as Secretary and Correspondent of the College. For this, by communication, dated 4.7.2005, the Government permitted the Chairperson of the Tamil Nadu Wakf Board to make necessary local arrangement for smooth functioning of the College. Pursuant to the said communication of the Government, the Chairperson of the Tamil Nadu Wakf Board appointed Mrs. I. Nazneen as Secretary and Correspondent of the College by order, dated 5.7.2005.
21. Though Mr. G.R. Swaminathan, learned Counsel, argued that the procedure followed is opposed to the various clauses of the Constitution of the College, on going through the same and as discussed above and in view of the fact that the Constitution of the College itself gives enough power to the Wakf Board and the Government, we are of the view that the order appointing Mrs. I. Nazneen as Secretary and Correspondent by the Chairperson of the Tamil Nadu Wakf Board, as an interim measure, cannot be faulted with. Further, as rightly pointed out by the learned Single Judge, Clause (2) of the Constitution of the Wakf Board enables the Government and Wakf Board for nominating the Secretary and Correspondent. In such circumstances, the contention that the said appointment is contrary to the Constitution of the College is liable to be rejected and this aspect has been rightly considered by the learned Single Judge. Merely because there is no quorum or elected member in the Governing Body, it cannot be claimed that the Government/Wakf Board have no power at all, particularly considering the smooth functioning of the College and also taking care of day today affairs. The learned Single Judge has also rightly observed that the temporary appointment/nomination to the post of Secretary is very much required for the administration of the College, which is the vital and noble object of Wakf. We are in agreement with the said conclusion.
22. In the light of what is stated above, the common order of the learned Single Judge, dated 22.12.2004, made in W.P. (MD) Nos. 1007, 1411 and 1461 of 2004 is set aside. Consequently, Writ Appeal Nos. 6 to 8 are allowed. In view of the reasons stated above, Writ Appeal No. 322 of 2005 filed by M.S. Shaw is dismissed. No costs. Connected W.A.M.P. (MD) Nos. 7 to 9, 338 to 340 of 2005 are closed. W.A.M.P. (MD) Nos. 377, 421, 422 and 506 of 2005 are dismissed.
ORDER P. Sathasivam and T.V. Masilamani, JJ.
It is represented that the newly appointed Secretary and Correspondence of the College, namely I. Nazneen, is at abroad and in the light of the fact that the day today affairs, particularly financial matters have to be taken care of, we permit the Chairperson of the Tamil Nadu State Wakf Board to perform the functions of the Secretary and Correspondent of the College insofar as the financial matters of the College till Mrs. I. Nazneen returns or new Secretary and Correspondent is elected.