Madras High Court
V.Sadak Peer vs The Tamil Nadu Wakf Board on 22 January, 2010
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22 .01.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P. NPD Nos.3097 and 3098 of 2009 and M.P.Nos.1 and 1 of 2009 V.Sadak Peer ...Petitioners in both CRPs Vs. The Tamil Nadu Wakf Board, Rep. By its Secretary, No.1, Jaffer Syrang Street, Manndi, Chennai-1. ...R1 in both CRPs V.Kader Batcha ...R2 in CRP 3097/09 Janab.Mohammed Mustafa ...R2 in CRP 3098/09 Prayer in CRP 3097/09: Civil Revision Petitions filed under Article 227 of the Constitution of India against the order dated 29.06.2009 in O.A.No.17 of 2008 passed by the Wakf Tribunal, (I Assistant Judge) City Civil Court, Chennai. Prayer in CRP 3098/09: Civil Revision Petitions filed under Article 227 of the Constitution of India against the order dated 11.06.2009 in O.A.No.22 of 2008 passed by the Wakf Tribunal, (I Assistant Judge) City Civil Court, Chennai. For Petitioner : Mr.T.Velumani (in both CRPs) For R1 : Mr.A.Thameem Mohideen (in both CRPs) For R2 : Mr.A.Rajendra Kumar (in both CRPs) COMMON ORDER
The petitioner has filed these Civil Revision petitions as against the orders dated 29.06.2009 in O.A.No.17 of 2008 and 11.06.2009 in O.A.No.22 of 2008 passed by the learned I Assistant Judge, City Civil Court, Chennai (Wakf Tribunal).
2. The Wakf Tribunal while passing order in O.A.No.17 of 2008 dated 29.06.2009 has among other things opined that 'the respondent inspite of the specific allegations by the other side has not adduced any contra evidence. It is only R1 who had chosen to contest the case. R2 and R3 have remained exparte inspite of service of notice. Therefore it is apparent that R2 and R3 are not refuting the claim of the petitioner. The R1 inspite of filing a counter denying the claim of the petitioner/appellant has not chosen to produce the copy of paper publication by which the applications called for and the relevant reasons for appointing of Rs.3 as the 5th member and the fact that the appointment was within the time fixed by the Honourable High Court. Therefore the appellant has made out a case in his favour, etc., and as such resultantly allowed the application.'
3. The Wakf Tribunal (the learned I Assistant Judge, City Civil Court, Chennai) while passing the order in O.A.No.22 of 2008 dated 11.06.2009 has inter alia opined that ' the main contention is that no publication has been effected as per the direction of the scheme decree. The respondent inspite of claiming that the publication was effected as alledged by him no document has been filed in support of the same. Ex.P2 also shows that an enquiry was proposed to be conducted and resultantly allowed the application without costs.'
4. The learned counsel for the petitioner submits that the impugned orders of the Tribunal are against law and probabilities of the case and as a appointment of the fifth member to the Managing committee, Pulliyur Pallivasal matter of fact, the Tribunal has not taken note of the fact that the, Kodambakkam, Chennai is the sole discretionary power of the first respondent viz., the Tamil Nadu Wakf Board, as per order of this Court made in Application No.1613 of 1969 dated 04.03.1970 and added further, this Court has given a direction that the State Wakf Board shall have the right to choose one Member of their discretion to be appointed as the fifth member of the Managing Committee shall hold the post for a period of five years and this Court has not given any specific direction to the Wakf Board in selecting the fifth member and the first respondent/Wakf Board being a statutory body has overall supervisory and administrative control over all the works in Tamil Nadu and it has ample power to appoint the petitioner as fifth member of the Managing Committee of Puliyur Pallivasal, Kodambakkam, Chennai and that apart, there is no procedural violation or administrative error being committed by the first respondent/Wakf Board in appointing the petitioner as the fifth member to the Managing Committee and besides the publication made in Daily Thanthi (Tamil Newspaper) the first respondent/Wakf Board has also put up a Notice in the Notice Board of the Mosque premises and called for applications from all Mohala people for the appointment of the fifth member to the Managing Committee and the first respondent/Wakf Board had taken into account the credential of all the applicants and appointed the petitioner as the fifth member to the Managing Committee and later the Tribunal appointed the petitioner as the fifth Member. Moreover the second respondent/applicant in both the applications before the Tribunal filed applications and considered as seventh candidate and inasmuch as the copy of the publication has not been filed, the Tribunal has wrongly allowed the applications and indeed the second respondent in both the applications have appeared before the first respondent/Wakf Board and represented their case and the first respondent Board has a discretionary power in appointing the fifth member and the fact of affixer of public notice in the Mosque premises itself amounts to publication, which aspect of the matter has not been adverted to by the Tribunal in a proper perspective and when the second respondent (in both the applications) individually has participated in the enquiry before the Tribunal and has known the election of the fifth member, then the fact of publication is not all a matter to be gone into, but these material factual aspects of the matter have not been properly adverted to appreciad by the Wakf Tribunal in a real perspective and therefore prays for allowing the Civil Revision petitions in the interest of justice.
5. Contending further, the learned counsel for the petitioner takes a plea that the learned Wakf Tribunal as an Appellate Authority can never mark exhibits without there being an application filed thereto and further the Honourable High Court has never directed what kind of procedure is to be followed in regard to the appointment of the fifth member of the Committee and therefore the observation of the Tribunal in O.A.No.17 of 2008 dated 29.06.2009 to the effect that the first respondent inspite of filing a counter denying the claim of the petitioner/applicant has not chosen to produce the copy of the paper publication by which the applications called for and the relevant reasons for appointing the third respondent as the fifth member and the factum that the appointment was within the time fixed by the Honourable High Court and further observation in O.A.No.22 of 2008 dated 11.06.2009 to the effect that in the absence of filing any document in proof of effecting publication calling for applications, it has to be taken the first respondent failed to follow the procedure as per the scheme decree in C.S.No.56 of 1956 are not correct in the eye of law.
6. Moreover, in Application Nos.2722, 2986, 2987 and 5196 of 2006 in C.S.No.56 of 1956 dated 10.09.2007, this Court at Paragraph No.30 of the order has observed thus:-
"30. As I have appointed four persons to the Managing Committee as per the scheme framed by this Court, I direct the Wakf Board to nominate the fifth person within four weeks to constitute a full committee. It is needless to mention here that the Wakf Board should appoint a person independently without considering any of these applicants whose application did not find favour by me in this order."
7. In the proceedings of the first respondent's Chief Executive Officer proceedings dated 10.07.2008, it is mentioned that the second respondent has been appointed to the Managing Committee as the fifth member as a fit person to the Kodambakkam Pulliyur Pallivasal as per provisions of the Wakf Act 1995 and as per the High Court's order in Application Nos.2722, 2986, 2987 and 5196 of 2006 in C.S.No.56 of 1956 dated 10.09.2007.
8.In the notification dated 02.04.2008 in R.C.No.13108/C2/07/Che of the first respondent Wakf Board, the Board has called for applications from the interested Muslims (Male) not below 25 years of age of the Puliyur Jamath Mosque for nominating one member for appointment to the Committee for the Management of Puliyur Mosque, Kodambakkam, Chennai-24 and the applicants have been directed to furnish the particulars mentioned in the format thereto to the Chief Executive Officer of the first respondent Board, etc., . A perusal of the said notification points out that a copy of the same has been marked to one the Jamathars, Puliyur Mosque, Kodambakkam, Chennai-24 to affix the said notice in the Notice Board of the Wakf and further the Superintendent of Wakfs, North Zone, Chennai and the Wakf Inspector, Chennai (South) were directed to affix the notice on the Notice Board of the Mosque and obtain two independent witnesses signature and send the same to the Head Office and further directed to announce the matter in Jumma prayer on 04.04.2008 and 11.04.2008 and submit a report.
9. The second respondent in O.A.Nos.17 and 22 of 2008 before the Tribunal have inter alia pleaded that the Honourable High Court has specifically directed the Board not to be influenced by any recommendation or influence of any of the members or applicants. In fact the first respondent appointed the second respondent under the influence of one of the members appointed by this Court and moreover the time framed by the High Court was not followed and that apart, the first respondent has not made any publication in any Daily to select the fifth member nor called for objections filed by public nor the members appointed by the High Court have been noticed except one of them and no reason has been assigned by the first respondent for appointing the second respondent as the fifth member nor any comment made as to his capacity or competency to hold the office and that the other intending applications have been brushed aside without any valid reason and that the report of the Inspector was not produced nor consider at the time of appointment and the first respondent has not taken note of the fact that the second respondent does not belong to sunni sect and the mosque in question is sunni wakf and the second respondent belongs to other sect.
10. The term 'Notice' in its legal sense, may be defined as 'information concerning a fact actually communicating to a party by an authorised person or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded equivalent to knowledge in its legal consequences, in the considered opinion of this Court. A notice may be either express or constructive. Further, express notice or actual notice is notice whereby an individual acquires actual knowledge of the fact. Constructive notice is the equity which treats a person who ought to have known a fact, as if he actually does know it. In short the term 'notice' in its full legal sense embraces a knowledge of circumstances that ought to induce suspicion or belief as well as direct information of the fact. In popular sense, notice is equivalent to information, intelligence or knowledge.
11. This Court aptly recalls the observation in the decision B.BURGH V. LEGE, 5 M&w 420; 8LJ Ex.258, wherein it is observed that 'notice' is a direct and definite statement of a thing as distinguished form supplying materials from which the existence of such thing may be inferred. Also that a constructive notice being the creature of positive law, rest upon strictly legal presumptions, which are not allowed in the case of implied notice as per the decision HAYWARD V. MAYSE, 1 App.Cas (DC 133; 29 Ame.Cyc 1114). After all the term 'notice' indicates merely an intimation to the party concerned of a particular fact. It cannot be limited to a letter. No doubt, a notice may take several forms.
12. Be that as it may, the mode of publication in concerned newspapers is a procedural one, in the considered opinion of this Court. The publication effected through newspapers is now an accepted form of giving general notice. If the publication through newspapers is complied with then the onus is on the concerned individual to establish that he is not aware of the subject matter of the notice. Also that the publication through newspapers is an indeed, an equally effective and efficacious mode of publication. In ordinary circumstances, if notice of publication is effected in a widely circulated English daily or in local Tamil dailies, then the same will not invalidate the method of publication, as opined by this Court.
13. Certainly the first respondent/Wakf Board is empowered to publish the notice through an advertisement in newspapers like English and Tamil Dailies but in the present case on hand, the procedure of issuing a notice of advertisement either in English daily or in Tamil dailies in regard to the filling up of the fifth member of the Managing Committee of Puliyur, Pallivasal, Kodambakkam, Chennai has not been followed by the first respondent/Wakf Board.
14. Continuing further that a notice of publication in local newspapers in respect of the filling up of the fifth member of the Managing Committee, Puliyur, Pallivasal, Kodambakkam, Chennai will be deemed to be a proper service if the same has been carried out by the first respondent/Wakf. Further more, service by publication is a good service.
15. A perusal of the notice paper in O.A.No.17 of 2008 indicates that when the matter has been posted for enquiry on 26.05.2009, the second respondent (in Civil Revision Petition)/applicant in O.A No.17 of 2008 was absent and his counsel was absent and the Tribunal heard the respondent and posted the matter for orders on 26.06.2009 and on 26.06.2009, an endorsement was made that the matter has been reposted for orders by 29.06.2009 and finally the orders have been passed on 29.06.2009. On the side of the second respondent in O.A.No.17 of 2008 before the Tribunal, Exs.P1 to P5 have been marked but marking of documents have not been noted in the notes paper.
16. In O.A.No.22 of 2008, the Wakf Tribunal marked Exs.P1 to P4 on the side of the applicant. In the preamble portion of the order passed by the Wakf Tribunal on 11.06.2009, it is mentioned that the revision petitioner (in C.R.P.3098/09) who figured as the second respondent has not filed counter.
17. It is relevant to mention that as per Section 83(2) of the Wakf Act 1995, any Mutawalli or person interested in a wakf or any other person aggrieved by an order made under the Act is entitled to project an application to the Tribunal 'for the determination of any dispute or question or other matter relating to Wakf'. The term 'any dispute, question or other matter relating to a Wakf or Wakf property' in Sections 83(1), 83(2) and 84 has given rise to the view that the Wakf Tribunal has plenary and exclusive jurisdiction to deal with all disputes, questions and matters whatsoever and in whatever manner arising relating to a wakf or wakf property, to the total exclusion of the jurisdiction of the regular Civil Court as per Section 9 of the Civil Procedure Code and also in derogation of the powers and functions of the Wakf Board in which is vested with the general superintendence of all wakfs in a State and on which are conferred the duty and power to see that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is properly and duly applied to the object and for the purposes for which such wakfs were created or intended (as per Section 32(1) of the Act).
18. On a careful consideration of the respective contentions, since the first respondent/Wakf Board has issued notice dated 02.04.2008 in regard to the nomination of appointment as Committee Member under Scheme Decree C.S.No.56 of 1956 in regard to Puliyur, Pallivasal, Kodambakkam, Chennai by addressing the same to the Jamathars of Puliyur, Pallivasal, Kodambakkam, Chennai so as to affix the same in the notice Board of the Wakf and in the Notice Board of the Mosque, etc., and since the notice of advertisement has not been issued either in English daily or in local dailies of Tamil language and because of the fact that no wide publicity has been given in regard to the manner of filling up the post of the fifth member of the Managing Committee of Puliyur, Pallivasal, Kodambakkam, Chennai, this Court set aside the notifications dated 02.04.2008 and the orders dated 10.07.2008 of the first respondent and as a logical corollary on the basis of Equity, Fair play, Good conscience and as an Equitable remedy directs the first respondent/Wakf Board to effect a fresh notice of publication through English daily and also in Tamil dailies in regard to the appointment of the fifth member of the Managing Committee of Puliyur, Pallivasal, Kodambakkam, Chennai and also to affix the said copy of notice in the Notice Board of Wakf and also to affix the said notice in the Notice Board of Mosque so as to satisfy the requirement of wide publicity being given thereto in order to provide free, fair and sufficient opportunity to all the intending aspirants/applicants within a period of four weeks from the date of receipt of a copy of this order and thereafter the first respondent/Wakf Board is directed to complete the entire exercise of filling up the nomination for the appointment of the fifth member of the Managing Committee of Puliyur, Pallivasal, Kodambakkam, Chennai, within a period of six weeks and it is open to the parties to the Civil Revision Petitions to take part and apply for the appointment as the fifth member of the Managing Committee in the manner known to law and the first respondent/Wakf Board is also directed to consider the claim of the parties dispassionately and unbiased with any of the observations made by this Court in these Revisions.
19. With the above directions, the Civil Revision Petitions are disposed of. No costs. The connected miscellaneous petitions are closed.
22.01.2010 Index :Yes/No Internet :Yes/No vri To 1.The Tamil Nadu Wakf Board, Rep. By its Secretary, No.1, Jaffer Syrang Street, Manndi, Chennai-1. 2.The Wakf Tribunal, (I Assistant Judge) City Civil Court, Chennai. M.VENUGOPAL,J. Vri Pre Delivery Order in C.R.P. NPD Nos.3097 and 3098 of 2009 22.01.2010