Madras High Court
O.M.A.Udhuman Mydeen vs The Chief Executive Officer on 1 April, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P. (MD) No.3791 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On 28.03.2022
Pronounced On 01.04.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.(MD) No.3791 of 2022
and
W.M.P. (MD) Nos.3298 & 3299 of 2022
O.M.A.Udhuman Mydeen ... Petitioner
Vs.
1.The Chief Executive Officer,
The Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Sethakathi Nagar,
Chennai – 600 001.
2.The Inspector of Waqf,
54, High Road,
Tirunelveli District.
(Now was Tenkasi District)
3.O.M.S.Hasan Maghoom Alim ... Respondents
Writ Petition filed for issuance of a Writ of Certiorari, to call for
the entire records pertaining to the impugned notice passed by the first
respondent vide her proceedings Ref.No.R.C.No.6211/12/B1/TNV, dated
24.02.2022 and quash the same.
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 34
W.P. (MD) No.3791 of 2022
For Petitioner : Mr.Issac Mohanlal, Senior Counsel
for Mr.Niranjan S. Kumar
For R1 & R2 : Mr.G.Chandrasekar
For R3 : Mr.T.S.Mohammed Mohidheen
ORDER
In this Writ Petition, the petitioner O.M.A. Udhuman Mydeen has challenged the impugned notice dated 24.02.2022 of the first respondent Chief Executive Officer, Tamil Nadu Wakf Board. By the impugned notice dated 24.02.2022, the petitioner herein and others including the third respondent herein O.M.S.Hasan Magdhoom Alim have been called to appear before the first respondent Chief Executive Officer, Tamil Nadu Wakf Board with all relevant documents in their possession, failing which, the matter will be decided in their absence.
2. The dispute in this Writ Petition pertains to Naina Mohammed Periya Kuthuba Pallivasal. The petitioner's and the third respondent's paternal grandfather namely, O.M.S.Syed Masood Alim Sahib was the Hereditary Mutawalli of three Wakfs, namely (i) Syed Masood Nayagam Darga, (ii) Uduman Labbai Shiek Taikkal and (iii) Naina Mohammed Periya Kuthuba Pallivasal. Present dispute pertains to Naina Mohammed ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 34 W.P. (MD) No.3791 of 2022 Periya Kuthuba Pallivasal. After his death in 1985, a dispute arose as to who would be the Mutawalli of the respective Wakfs.
3. The third respondent's father namely, O.M.S.Sheik Udhuman Alim Sahib (father of the third respondent) the elder son of O.M.S.Syed Masood Alim Sahib was made as Mutawalli of Syed Masood Nayagam Darga and Uduman Labbai Shiek Taikkal, whereas the petitioner's father namely, O.M.S.Abdul Basith Alim Sahib (father of the petitioner) the younger son of O.M.S.Syed Masood Alim Sahib was made as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal by the Wakf Board, by its order dated 09.02.1985. The petitioner's father namely, O.M.S.Abdul Basith Alim Sahib passed away on 22.05.2012 and the third respondent’s father namely, O.M.S.Sheik Udhuman Alim Sahib passed away in 2014.
4. After the younger son of O.M.S.Syed Masood Alim Sahib namely, O.M.S.Abdul Basith Alim Sahib (the father of the petitioner) was appointed as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal, there was a power struggle between the two brothers who are the sons of O.M.S.Syed Masood Alim Sahib namely, O.M.S.Sheik Udhuman Alim Sahib and O.M.S.Abdul Basith Alim Sahib. ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 34 W.P. (MD) No.3791 of 2022
5. As per the proforma of the Naina Mohammed Periya Kuthuba Pallivasal, the succession to the office of the Mutawalli is the Hereditary according to Custom. Similarly, succession to the office of the Syed Masood Nayagam Darga is also Hereditary according to the Custom.
6. The third respondent’s father namely, O.M.S.Sheik Udhuman Alim Sahib therefore filed a petition before the Wakf Board, Chennai in Rc.No.3886/C6/TNV/83 against his younger brother O.M.S.Abdul Basith Alim Sahib (the father of the petitioner), to set aside the order of the Wakf Board pending appointing the petitioner's father O.M.S.Abdul Basith Alim Sahib as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal and to approve the third respondent’s father O.M.S.Sheik Udhuman Alim Sahib as sole Hereditary Mutawalliship of the Wakfs.
7. The Wakf Board by its proceedings dated 09.02.1985 appointed the petitioner's father O.M.S.Abdul Basith Alim Sahib as Mutawalli of the Naina Mohammed Periya Kuthuba Pallivasal and the third respondent’s father O.M.S.Sheik Udhuman Alim Sahib as Mutawalli of the Syed Masood Nayagam Darga. The operative portion of the order reads as under:-
______________ https://www.mhc.tn.gov.in/judis Page No 4 of 34 W.P. (MD) No.3791 of 2022 As regard the claim to the office of the Muthawalliship for the other two Wakfs namely Nainar Mohamed Periya Kuthba Pallivasal and Syed Masood Nayagam Durgah, we proceed to consider the respective claims of the two brothers. Though the rule of succession is hereditary according to custom, it is not the case that the eldest son O.M.S.Sheik Uduman Alim Sahib that to is entitled to be appointed as Muthawalli for all the three wakfs is not sustainable. The younger brother Addul Basith is a lalfiz that is to say he knows the Holy Kuran by heart and he is also holding a diploma from the Madharsha of Lalpet, we, therefore appoint Janab Abdul Basith as the Muthawalli for Nainar Mohamed Periyakuthba Pallivasal. His claim to the office of the Masood Nayagam Durga is rejected. Mr.O.M.S.Abdul Basith Alim Sahib will run the Mosque with the income from the land belonging to the wakf property and from public contribution.
The other wakf Syed Masood Nayagam Durgah is running a High School under the name of Masood Thulka High School, Janab O.M.S.Sheik Uduman Labbai is now the correspondent of this school. We, are therefore inclined to appoint Janab Sheik Uduman Labbai Alim Sahib as Muthawalli of the wakf known as Syed Masood Nayagam Durgah. Accordingly, Janab Sheik Uduman Labbai Alim Sahib is appointed as Muthawalli for the wakf known as “Syed Masood Nayagam Durgah”.
8. Aggrieved by the said order, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib filed W.P.No.1575 of 1985 before this Court challenging the appointment of the petitioner’s father ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 34 W.P. (MD) No.3791 of 2022 O.M.S.Abdul Basith Alim Sahib as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal. The said Writ Petition was allowed. Aggrieved by the said order, the petitioner’s father O.M.S.Abdul Basith Alim Sahib filed W.A.No.848 of 1986 before the Division Bench of this Court. The Division Bench by its Judgment dated 27.07.1989 gave right to the third respondent’s father O.M.S.Sheik Udhuman Alim Sahib to file a suit within one month from the date of the order with the following observations:-
By consent, the following order is passed since the question to be decided in the case is whether the custom of hereditary succession by primogeniture would apply to the wakf in question. No doubt, under Sec.42 of the Wakf Act, the Wakf Board was of the view that on the death of the previous Muthawalli, there were as many vacancies which are three in this case, out of which, we are presently concerned with only two. If really the Rule of Primogeniture is applied, one sat of consequence would follow and if it is not established, the other consequences would follow. In these circumstances, we are of the view that though there are allegations to this effort in the affidavit filed in support of the writ petition, that has been denied by the second respondent (the present appellant) in paragraph 11 of the counter affidavit. Therefore, the disputed duration of fact as to the custom of primogeniture had to be established in a Civil Suit.
We direct the first respondent – writ petitioner to file a suit within one month from today. As and when such a suit is filed, it shall be disposed of with ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 34 W.P. (MD) No.3791 of 2022 utmost expedition, preferably within nine months from the date of filing of the suit. The Status Quo as on today shall prevail till the disposal of the suit. Till then, the Wakf Board shall stay off its hands concerning the appointment of Muthawalli.
We make it clear that we have not expressed any opinion on the merits of the case.
9. Thus, the petitioner's father O.M.S.Abdul Basith Alim Sahib was allowed to continue as the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal. Pursuant to the above order, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib filed O.S.No.138 of 1989 before the Sub Court, Tenkasi for a declaration that the appointment of Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal should be based on primogeniture and for a permanent injunction to restrain the petitioner's father and other persons from officiating and to allow the third respondent’s father O.M.S.Sheik Udhuman Alim Sahib as Mutawalli of said Naina Mohammed Periya Kuthuba Pallivasal. The Sub Court by its Judgment and Decree dated 05.08.1993 framed the following issues:-
i.gpuhJ jgrpy; gs;spthrYf;F guk;giuapy; %j;j Mz; kfd; gjtp mila Ntz;Lnkd;w Kiwapy; (legal Primogeniture by custom) Kj;jty;yp gjtp tfpf;fg;gLk; vd;w thjp fl;rp nra;tJ rupah? MJ rl;l rk;ge;jkhdjh?
______________ https://www.mhc.tn.gov.in/judis Page No 7 of 34 W.P. (MD) No.3791 of 2022 ii.nrq;Nfhl;ilchpikapy; ePjpkd;w K.c.t.128/6 y; Vw;gl;l jPHg;gpd; Ngupy; jpUney;Ntyp khtl;l ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;l Nk.K.122/62 y; gpwe;j jPHg;gpd; gb thjp ,t;tof;if jhf;fy; nra;a Kuz; jilgl;Ls;shH vd;gJ rupah?
iii.Thjp jhth gs;spthrYf;F thhPRg;gb Kj;jty;yp vd;gJ rhpah?
iv.kw;w ,U gs;spthry; rk;ge;jkhf ghpfhuk; Nfhhp jhth gs;spthry; rk;ge;jkhf kl;Lk; tof;F jhf;fy; nra;jpUf;Fk; tbtj;jpy; epiyf;fj;jf;fjh?
v.tof;F Njitahd jug;gpdiu fl;rp NrHf;fhj Fiwghl;bw;Fs;sjhfpwjh?
vi.tf;G thhpaj;jpw;F mwptpf;if ,y;yhj epiyapy; Nkw;gb tof;F nry;yf;$bajh?
vii.,t;tof;fpy; thjpf;F fpilf;f$ba ghpfhuk; vd;d?
10. Before the Sub Court, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) had stated that their father O.M.S. Syed Masood Alim Saheb before his death wished that the third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) be appointed as the Mutawalli and had reduced the same in writing. However, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) did not file the same before the Court and ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 34 W.P. (MD) No.3791 of 2022 therefore, the contention of the third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) was rejected by the Sub Court as not proved.
11. The Sub Court further concluded that in respect of the founder of the Pallivasal, there were several contradictions in the Exhibits filed by the parties and therefore, the prayer of the third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) that the appointment of Mutawalli of the Pallivasal based on the primogeniture was incorrect. The Sub Court thus dismissed the said suit.
12. The said decision was taken on further appeal in A.S.No.1024 of 1993 before this Court by the third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) during his life time. The said Appeal filed by the third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) was also dismissed as both the sons of O.M.S.Syed Masood Alim Saheb namely, the father of the respective petitioner and the third respondent, died by then. The petitioner's father O.M.S.Abdul Basith Alim Sahib died on 22.05.2012 and the third respondent's father O.M.S.Sheik Udhuman Alim Sahib died on 28.06.2014. ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 34 W.P. (MD) No.3791 of 2022
13. The subsequent attempt by the petitioner and his brother O.M.A.Dhanaullah in C.M.P. (MD) No.886 of 2021, to restore the A.S.No.1024 of 1993 was also dismissed by this Court by an order dated 26.02.2021 with the following observations:-
4. Admittedly, the suit is instituted as per the direction of the Division Bench. However, the suit got dismissed. As against which, the appeal suit has been filed and since the appellant died and no steps have been taken, the Appeal suit was also dismissed as abated. As the challenge in the main suit is as against the order of the Wakf Board of the year 1985 and the same got dismissed, it goes without saying that the wakf Board order stands revived.
14. Meanwhile, the petitioner officiated as the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal for the period between 22.05.2012 and 28.06.2014 as his father died on 22.05.2012. However, on
27.06.2014, the Wakf Board appointed the third respondent O.M.S.Hasan Magdhoom Uduman Alim as the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal, for a term of three years between 25.06.2014 and 24.06.2017 under Section 63 of the Wakf Act, 1995. The appointment of the petitioner was an interim arrangement. Under these circumstances, ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 34 W.P. (MD) No.3791 of 2022 the petitioner filed W.P.(MD)No.12143 of 2014, which came to be allowed on 29.04.2016. The above Writ Petition filed by the petitioner was allowed on the ground that the impugned order therein was based on a Resolution dated 21.08.2013 which was not existing and that it was passed after the orders were reserved. Paragraph 7 of the order dated 29.04.2016 in W.P.(MD)No.12143 of 2014 reads as under:-
7.On a careful perusal of the order of the Wakf Board, there also it is very clearly stated that the order was reserved on 21.08.2013 and it was pronounced only on 25.06.2014. Therefore, the taking over of the management on 27.06.2014 citing the order dated 21.08.2013 or a resolution dated 21.08.2013 is not correct. In any view of the matter, the Wakf Board has also stated that it is only an interim arrangement pending disposal of the appeal. Therefore, suffice to state that as I have rightly pointed out, this will not affect the rights of the parties and the parties will abide by the civil court order which is also already declared by the Division Bench judgment. As the first appeal is pending, the parties will abide by the result of the first appeal. Hence, the impugned order is set aside. Accordingly, the Writ Petition is allowed.
No costs. Consequently, the connected miscellaneous petitions are closed.
15. Thus, the petitioner once again became entitled to the post of ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 34 W.P. (MD) No.3791 of 2022 Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal. Aggrieved by the said order, both the Wakf Board and the third respondent filed W.A. (MD)Nos.865 and 866 of 2016 respectively before the Division Bench. The Writ Appeals were dismissed by the Division Bench of this Court on 22.03.2018. While dismissing W.A.(MD)No.865 of 2016 filed by the Wakf Board and W.A.(MD)No.866 of 2016 filed by the third respondent herein, the Division Bench by its common judgment dated 22.03.2018 observed as follows:-
20. This Court taking into consideration of the fact that the appellant in W.A(MD)No.866 of 2016 is acting as Muthavalli in respect of 'Syed Masood Nayagam Dharga', Therku Ayyapuram, Kadayanallur, is of the considered view that till the proceedings takes place, as to the appointment of permanent Muthavalli, in respect of 'Naina Mohammed Peria Kuthba Pallivasal', Peria Street, Kadayanallur, the first respondent in both the Writ Appeals/writ petitioner, is to be continued as temporary Muthavalli in respect of 'Naina Mohammed Peria Kuthba Pallivasal', Peria Street, Kadayanallur and it is also made clear that it is also subject to the result of A.S.No.1024 of 1993.
21. This Court would also make it clear that de horse this order, it is always open to the appellant in W.A(MD)No.865 of 2016, namely, Tamil Nadu Wakf Board, to exercise its powers in terms of the Wakf Act, 1995 and the Rules framed thereunder, as to the office of ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 34 W.P. (MD) No.3791 of 2022 Muthavalliship in respect of 'Naina Mohammed Peria Kuthba Pallivasal', Peria Street, Kadayanallur as well as 'Syed Masood Nayagam Dharga', Therku Ayyapuram, Kadayanallur.
16. Thus, the appointment of the petitioner was only temporary and not permanent. In the light of the above order, on 05.07.2018, the Wakf Board once again appointed the third respondent as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal.
17. Under these circumstances, the petitioner once again filed W.P. (MD)No.16615 of 2018. The said Writ Petition was allowed by this Court by its order dated 30.08.2018 with the following observations:-
24.As held in preamble to this order, a singular issue which is placed for consideration before this Court is whether the impugned action of the first respondent in appointing the second respondent as Muthavalli to the Kuthba Pallivasal can be countenanced in law and on facts. In the teeth of the specific direction of this Court, in two orders namely, order dated 27.07.1989 passed in W.A.No.848 of 1986 and the order dated 22.03.2018 passed in W.A(MD)Nos.865 and 866 of 2016, particularly, in paragraph 20 and also the dismissal of the suit in O.S.No.138 of 1989 filed by the second respondent and the pendency of A.S.No.1024 of 1993 before this Court as ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 34 W.P. (MD) No.3791 of 2022 against the dismissal of the suit, the entire adjudication of the issue before this Court is to be confined only to those three specific events, which would decide the issue in one way or the other in respect of rival claim of both the petitioner as well as the second respondent in regard to appointment of Muthavalli to the Kuthba Pallivasal.
25.From the pleadings and materials placed on records, it could be seen that originally the Division Bench of this Court allowed the writ appeal in W.A.No.848 of 1986 on 27.07.1989 by directing the parties to appear before the Civil Court and ordered status quo to be maintained till the decision of the suit. By which direction by the Hon'ble Division Bench, the petitioner's father was allowed to act as Muthavalli of Kuthba Pallivasal on the basis of his original appointment by the Wakf Board on 09.02.1985. As rightly contended by the learned Senior Counsel appearing for the petitioner, though the suit filed by the second respondent has been dismissed, against which, the appeal in A.S.No.1024 of 1993 was filed and the same is pending before this Court even as on date, which means that the civil proceedings has not attained finality and hence, the status quo ordered by the Division Bench of this Court in the afore-said writ appeal would have to be continued, unless and until the inter se claim is finally decided by the civil Court the question of disturbing the status quo by the Wakf Board does not arise, particularly, in appointing the second respondent as Muthavalli of the Kuthba pallivasal by displacing the petitioner. Such action on the part of the Wakf Board is in violation of the specific direction passed by the ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 34 W.P. (MD) No.3791 of 2022 Hon'ble Division Bench of this Court dated 27.07.1989.
26.Moreover, the second respondent, who has approached the civil Court in O.S.No.138 of 1989 to declare him as Muthavalli for the Kuthba Pallivasal having failed to obtain any decree cannot get himself appointed as Muthawalli for the said Pallivasal by the proceedings of the first respondent Wakf Board.
Such appointment in the opinion of this Court is a clear attempt to circumvent the pending litigation and certainly such appointment would upset the status quo order passed by the Division Bench of this Court. Once the second respondent has chosen to approach the civil Court for enforcement of his right for his appointment of Muthavalli to Kuthba Pallivasal and until the civil proceedings is finally concluded, the question of his appointment would not arise at all. In all fairness, the Wakf Board ought to have waited for the outcome of the civil proceedings, which is pending before this Court, even as on date. Only in such circumstances, the earlier attempt by the Wakf Board appointing the second respondent as Muthavalli of Kuthba Pallivasal vide order dated 27.06.2014 was discountenanced by this Court in the order dated 29.04.2016 in W.P(MD)No.12143 of 2014. In fact, such order was clearly illegal as the petitioner was allowed to assume office after the death of his father in 2012 and he acted as such since 28.06.2014. This Court is unable to appreciate as to why the Wakf Board has suddenly decided to appoint the second respondent as Muthavalli for the Kuthba Pallivasal.
______________ https://www.mhc.tn.gov.in/judis Page No 15 of 34 W.P. (MD) No.3791 of 2022
27.In any event, the said appointment was put to challenge in W.P(MD)No.12143 of 2014 by the writ petitioner and the writ petition was allowed and the order of the Wakf Board dated 27.06.2014 was set aside. Thereafter, the writ appeals were filed in W.A(MD)Nos.865 and 866 of 2014 both by the Wakf Board and by the second respondent and the Division Bench of this Court in the order passed on 22.03.2018 has clearly concluded in favour of the petitioner herein in paragraph 20 of the Judgment as extracted supra. Although much reliance has been placed in paragraph 21 of the Judgment of the Division Bench by the counsel appearing for the first respondent, from the entirety of the order passed by this Court, this Court has necessary come to inexorable conclusion that the Division Bench of this Court has favoured continuance of the petitioner as Muthavalli for the Kuthba Pallivasal. However, liberty was given to the Wakf Board to exercise its power, as per the provisions of Wakf Act, 1995, but it did not mean that such power could be exercised in violation of the direction as contained in paragraph 20 of the Judgment. In fact, in paragraph 20 of the Judgment, the Hon'ble Division Bench made it very clear that the petitioner has to be continued as Muthavalli in respect of the Kuthba Pallivasal subject to the result of the appeal in A.S.No.1024 of 1993. When such clear direction is given and A.S.No. 1024 of 1993 has still not attained the finality, this Court finds that the impugned action of the first respondent, dated 05.07.2018, in appointing the second respondent as Muthavalli for the Kuthba Pallivasal is contrary to the direction passed by the Division Bench of this Court and therefore, the same has to be held as illegal and unsustainable. As regards the principal ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 34 W.P. (MD) No.3791 of 2022 submission made on behalf of the first respondent that the appointment of Muthavalli is not hereditary, this Court is of the view that such contention does not really upset the claim of the petitioner herein in view of the order passed by the learned single Judge of this Court in favour of the petitioner in W.P(MD)No.12143 of 2014 dated 29.04.2016 and also the dismissal the writ appeal, in W.A(MD)Nos.865 and 866 of 2016. Once the Court recognized the appointment of the petitioner as Muthavalli for the Pallivasal and granted seal of approval de-hors the legal provisions whether the appointment is hereditary or not, the petitioner has to be continued in terms of the ruling of the single Judge as well as the Division Bench of this Court. Further, as regards the qualification of the second respondent vis-a- vis, the petitioner for the appointment as Muthavalli, the learned counsel appearing for the first respondent did not draw any specific reference to the provisions of the Wakf Act as what qualification is prescribed for appointment as Muthavalli for Pallivasal and Dargah. In any event, it is the submission of the learned Senior Counsel for the petitioner that the petitioner also in possession of all the required qualifications for appointment as Muthavalli and such submission has not been seriously disputed by the respondents. That being the case, even this Court is of the view that the petitioner is deemed to be qualified for continuance as Muthavalli for the Pallivasal.
28.Finally, in regard to the objection as to the maintainability of the writ petition on the ground that the resolution dated 19.06.2018 has not been challenged and it is only the consequential order dated 05.07.2018 alone is challenged and as per the Section 83 the Wakf ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 34 W.P. (MD) No.3791 of 2022 Act, an effective and alternative remedy is provided and non-exhaustion of the same would be fatal to the present proceedings is concerned, this Court is of the considered view that even in the earlier proceedings initiated by the petitioner, it is only the order passed by the Wakf Board, which was put to challenge and not resolution which proceeded such action.
29.The learned Senior Counsel appearing for the petitioner submitted that the resolution, dated 19.06.2018, has not been made available and therefore, the subsequent communication dated 05.07.2018, is challenged and there is nothing wrong in such challenge by the petitioner.
30.As regards the availability of effective and alternative remedy under Section 83 the Wakf Act, as rightly contended by the learned Senior Counsel for the petitioner that the entire issue hinges on the implementation of the order passed by the Hon'ble Division Bench of this Court, dated 22.03.2018, in W.A(MD)Nos.865 and 866 of 2016. While that being the case, the question of approaching the Wakf Tribunal under Section 83 the Wakf Act does not arise at all. In the facts and circumstances of the present case, it is not necessary for the petitioner to approach the Wakf Tribunal, since the order impugned in the present writ petition is contrary to the specific direction passed by this Court dated 22.03.2018 in W.A(MD)Nos.865 and 866 of 2016. Therefore, in such scenario, it is not fair and proper to drive the petitioner to resort to alternative remedy available under the scheme of the Wakf Act. The Hon'ble Supreme Court has held consistently that in extraordinary circumstances, the writ petition can be ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 34 W.P. (MD) No.3791 of 2022 entertained without compelling the party to resort to alternative remedy provided under various statutes. This Court is of the view that in the instant case, the facts and circumstances warrant direct intervention of this Court and the objection raised on behalf of the respondents on this ground is liable to be rejected, as being without any merits.
31.For the above reasons, this Court find that the petitioner has made out a clear case for relief and hence, impugned order passed by the first respondent in Ref.No.CHE.MU.AANAI.No. 6211/12/A1/TVELI dated 05.07.2018 is hereby quashed. There shall be a consequential direction to the first respondent to pass appropriate order appointing the petitioner as Muthavalli for the Kadayanallur Naina Mohammed Periya Kuthba Pallivasal, till the disposal of A.S.No.1024 of 1999 pending on the file of this Court in furtherance of the direction of the Division Bench of this Court dated 22.03.2018 in W.A(MD)Nos.865 and 866 of 2016 as found in the paragraph 20 of the Judgment, which is reproduced supra. The Consequential order is directed to be passed by the first respondent, within a period of four weeks from the date of receipt of a copy of this order.
With the above direction, this Writ Petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
18. When the above Writ Petition was filed, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib had also died on 28.06.2014 ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 34 W.P. (MD) No.3791 of 2022 which was not brought to the attention of this Court. Aggrieved by the same, once again, Writ Appeals were filed by both the Wakf Board and the third respondent herein in W.A.(MD)Nos.1468 and 1707 of 2018, respectively. These writ appeals were dismissed on 23.10.2019. The further appeal to the Hon'ble Supreme Court in S.L.P.(C) No.5767 of 2020 by the third respondent herein was also dismissed on 20.02.2020 while granting liberty to the third respondent to take necessary steps for disposal of the appeal pending before this Court in A.S.No.1024 of 1993.
19. Since both the plaintiff and the defendant namely, the third respondent's father and the petitioner's father, died by then, the appeal in A.S.No.1024 of 1993 had abated automatically. It was however later dismissed on 21.12.2020 as having abated. Neither the petitioner nor the third respondent informed the Hon'ble Supreme Court that on 20.05.2020 when the order was passed, A.S.No.1024 of 1993 had already abated as the third respondent's father and the petitioner's father died who were the plaintiff and defendant in O.S.No.138 of 1989 and the appellant and the respondent in A.S.No.1024 of 1993.
20. Though W.A.(MD)Nos.1468 and 1707 of 2018 were dismissed ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 34 W.P. (MD) No.3791 of 2022 on 23.10.2019, the petitioner was not appointed as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal. Therefore, the petitioner filed Cont.P.(MD)Nos.238 and 239 of 2020 in W.A.(MD)Nos.1468 and 1707 of 2018. By an order dated 24.08.2020, the Division Bench of this Court directed the respondents namely, the Chief Executive Officer and the third respondent herein to comply with order.
21. By an order dated 16.07.2020, the first respondent Chief Executive Officer of the Wakf Board appointed the petitioner as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal again for a period of three years from the date of the order subject to the final disposal of A.S.No.1024 of 1993 even though the appeal would have abated in absence of statutory steps for impleading the legal heirs of the appellant and the respondent namely, O.M.S.Sheik Udhuman Alim Sahib and O.M.S.Abdul Basith Alim Sahib. The third respondent who was holding the charge as the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal during the interregnum, was directed to hand over the entire charge to the petitioner herein. The orders were issued with the approval of Special Officer, Tamil Nadu Waqf Board and subject to the result of W.P.No.762 of 2020 pending before the Principal Seat of this ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 34 W.P. (MD) No.3791 of 2022 Court. It is not clear as what is the relevance of the said W.P.No.762 of 2020. The said Writ Petition has been filed by one M.Vinothbabu before the Principal Seat of this Court challenging the proceedings of the second respondent, dated 22.10.2019, transferring the petitioner from SS Headquarters, Chennai, to SMPL, Rajkot. The said Writ Petition was dismissed by an order dated 10.02.2020.
22. Pursuant to the order dated 24.08.2020 in Cont.P.(MD) Nos. 238 and 239 of 2020, by proceedings dated 07.10.2020, the petitioner was once again appointed as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal by the first respondent Executive Officer of the Wakf Board. The Contempt Petitions were later closed in view of the above order dated 07.10.2020. As mentioned above, in the light of the above development, the impugned order has been challenged.
23. Opposing the prayer in this Writ Petition, the learned counsel for the third respondent submits that this Writ Petition is devoid of merits inasmuch as the petitioner has merely challenged the notice seeking the petitioner and the third respondent to come for an enquiry. It is submitted that after the order came to be passed by this Court in the ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 34 W.P. (MD) No.3791 of 2022 above mentioned proceedings, the petitioner and the third respondent were summoned to appear by a communication dated 08.01.2021 by the first respondent herein. The date was fixed for hearing 12.01.2021 at 10.10 a.m. It is submitted that not only the petitioner but also the third respondent and other persons including the Wakf Superintendent, Tirunelveli and the Wakf Inspector, Tirunelveli were asked to appear on 12.01.2021 at 10.10 a.m.
24. It is further submitted that thereafter, another notice was issued on 13.02.2021 and the impugned notice was issued on 24.02.2022. It is submitted that the petitioner had participated in the proceedings and raised serious objections regarding impartially of the Wakf Board and its officers and that a biased decision will be taken against the petitioner. It is submitted that though an enquiry was conducted, the order could not be passed as the Chairman of the Wakf Board passed away before passing order.
25. It is submitted that this Writ Petition is devoid of merits as after the Assembly Election, the Wakf Board has been completely replaced with new set of officers and therefore, the complaint of the petitioner ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 34 W.P. (MD) No.3791 of 2022 against the officers of the Wakf Board also does not survive. It is submitted that any order to be passed by the Wakf Board after the enquiry is appealable under Section 83 of the Wakf Act, 1995. The learned Counsel relied on the decision of the Hon'ble Supreme Court in Board of Wakf, West Bengal and Another Vs. Anish Fatma Begum and Another, (2010) 14 SCC 588.
26. The learned counsel for the third respondent further submits that it was not even pleaded that the petitioner's father O.M.S.Abdul Basith Alim Sahib was appointed as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal, because at that point of time, the petitioner's father O.M.S.Abdul Basith Alim Sahib had requisite qualification. Since the third respondent's father O.M.S.Sheik Udhuman Alim Sahib did not have the requisite qualification, the petitioner's father O.M.S.Abdul Basith Alim Sahib was appointed as Mutawalli of Naina Mohammd Periya Kuthuba Pallivasal. However, that would not entitle the petitioner to automatically step into the shoes of the petitioner's father O.M.S.Abdul Basith Alim Sahib as the officers of the Mutawalli, though Hereditary Customary in practice in terms of the Proforma of Wakf, would require to have requisite qualifications.
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27. It is submitted that the petitioner does not have requisite qualification and that the Wakf Board is duty bound to appoint the person with required qualification. It is submitted that office of the Mutawalli though Hereditary Customary in nature does not mean that any person who is not qualified can be appointed as Mutawalli. If that is correct, the petitioner's elder brother Thanuvulla would have stepped into the shoes of Mutawalli of said Pallivasal. In any event, the Wakf Board can appoint only the person who does not suffer from any of the disqualification under the Wakf Act, 1995.
28. The learned counsel for the third respondent submits that the petitioner, his father O.M.S.Abdul Basith Alim Sahib and the brother of the petitioner, Thanuvullah had earlier filed W.O.P.No.3 of 2012 before the Principal Sub Court, Tirunelveli for declaring the order of the first respondent Executive Officer of the Tamil Nadu Wakf Board dated 22.10.2009 is null and void and for declaring the petitioner and the brother of the petitioner Thanuvullah as the Hereditary Mutawalli for the schedule mentioned Syed Masood Nayagam Darga and for directing the ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 34 W.P. (MD) No.3791 of 2022 third respondent to deliver possession of the same. The said suit was dismissed for default on 16.04.2018.
29. It is submitted that after the interim order dated 28.02.2022 was passed by this Court in this Writ Petition, the respondent Wakf Board had fixed the hearing on 16.03.2022. On the said day, the proceeding was adjourned silent in view of the present Writ Petition.
30. Supporting the above submission of the learned counsel for the third respondent, the learned counsel for the first and second official respondents submits that this Writ Petition is premature and therefore is liable to be dismissed.
31. I have considered the arguments advanced by the learned Senior Counsel for the petitioner and the learned counsel for the first and second respondents and the learned counsel for the third respondent.
32. The issue that arises for consideration in the present Writ Petition is whether the third respondent being the elder grandson of O.M.S.Syed Masood Alim Sahib through the first son O.M.S.Sheik ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 34 W.P. (MD) No.3791 of 2022 Udhuman Alim Sahib is entitled to be appointed/recognized as Mutawalli in the place of the petitioner, who is the youngrt grandson of O.M.S.Syed Masood Alim Sahib through the second son O.M.S.Abdul Basith Alim Sahib.
33. There is no dispute that there were three wakfs, of which, the petitioner's and the third respondent's grandfather namely, O.M.S.Syed Masood Alim Sahib was the Mutawalli who died in 1985. After his death, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib would have been appointed as Mutawalli if rule of primogenitor was applied. The succession to the office of the Mutawalli is Hereditary according to the customs. However, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib though eldest son did not have requisite qualification for discharging the functions as the Mutawalli. Therefore, the Wakf Board in its wisdom decided to appoint the petitioner's father O.M.S.Abdul Basith Alim Sahib as the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal and the third respondent's father O.M.S.Sheik Udhuman Alim Sahib as the Mutawalli of Syed Masood Nayagam Darga vide order dated 09.02.1985. ______________ https://www.mhc.tn.gov.in/judis Page No 27 of 34 W.P. (MD) No.3791 of 2022
34. This order of the Wakf was challenged by the third respondent's father O.M.S.Sheik Udhuman Alim Sahib before this Court in W.P.No.1575 of 1985. This Court had dismissed the W.P.No.1575 of 1985 filed by the third respondent's father O.M.S.Sheik Udhuman Alim Sahib. The further appeal before the Division Bench in W.A.No.848 of 1986 was also dismissed vide order dated 27.07.1989 while granting liberty to the third respondent's father O.M.S.Sheik Udhuman Alim Sahib to file a suit to establish his right and thus Status Quo as on the date of the order dated 27.07.1989 was ordered to prevail till the disposal of the suit and ordered that the Wakf Board was to stay-off its hands concerning the appointment of Mutawalli.
35. It is the background of the third respondent's father O.M.S.Sheik Udhuman Alim Sahib to file O.S.No.138 of 1989 before the Sub Court, Tenkasi for a declaration that the appointment of Mutawalli of the Naina Mohammed Periya Kuthuba Pallivasal should be based on primogeniture and for a permanent injunction to restrain the petitioner's father and other persons from officiating. The said suit was dismissed.
36. Further appeal in A.S.No.1024 of 1993 however stood abated ______________ https://www.mhc.tn.gov.in/judis Page No 28 of 34 W.P. (MD) No.3791 of 2022 as the third respondent failed to get himself impleaded after his father died on 28.06.2014, likewise, his father failed to implead the petitioner and petitioner's brother O.M.S.Thanuvullah. The appointment to the post of Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal stood concluded in terms of the decision of the Sub Court in O.S.No.138 of 1989 in view of the appeal having been abated.
37. The Sub Court has itself concluded that the appointment of Mutawalli for Naina Mohammed Periya Kuthuba Pallivasal is not by way of rule of primogenitor. Thus, if the third respondent's father O.M.S.Sheik Udhuman Alim Sahib could not have been appointed as the Mutawalli of the aforesaid Pallivasal by following the rule of primogenitor, the petitioner cannot claim any right which was denied to the third respondent's father O.M.S.Sheik Udhuman Alim Sahib. In other words, it stands concluded that though the succession to the post of Mutawalli is hereditary by customs, it would fall upon only the person who is competent to discharge function of the Mutawalli. Therefore, the aforesaid Pallivasl has to be in the hands of the person who is having requisite qualification to officiate the aforesaid Pallivasal both in the capacity as spiritual and temporal head of the aforesaid Pallivasal. ______________ https://www.mhc.tn.gov.in/judis Page No 29 of 34 W.P. (MD) No.3791 of 2022
38. It is for the precise reasons why the power has to be exercised by the Board under Section 63 of the Wakf Act, 1995. Merely because the petitioner's father O.M.S.Abdul Basith Alim Sahib officiated in the capacity of Mutawalli till his death in 2012 after the death of their grandfather O.M.S.Syed Masood Alim Sahib, ipso facto would not entitle the petitioner to step into the shoes as the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal. The decision of the Sub Court itself makes it clear that the appointment is not by rule of primogenitor.
39. A considered decision has to be taken by the Wakf Board. Any order passed by the Wakf Board can be subject to the further challenge before Wakf Tribunal under Section 83 of the Wakf Act, 1995. Therefore, this Writ Petition is premature.
40. The repeated attempt of the respondents to install the third respondent as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal was set at knot by this Court in its order dated 29.04.2016 in W.P.(MD) No.12143 of 2014 on account of procedural illegally committed by the ______________ https://www.mhc.tn.gov.in/judis Page No 30 of 34 W.P. (MD) No.3791 of 2022 respondent Wakf Board. The further appeal in W.A. (MD) Nos. 865 and 866 of 2016 were also dismissed by the Division Bench. The Division Bench by its order made it clear that the petitioner was to continue temporarily as the Mutawalli of the Naina Mohammed Periya Kuthuba Pallivasal and his continuance will be subject to the final out come of the A.S.No.1024 of 1993. The dispute between the petitioner's father and the third respondent's father came to an end with the Appeal Suit having abated. The Division Bench in paragraph No.21 of the said order made it clear that dehorse the said order, it was open to the appellant in W.A. (MD) No.865 of 2016 namely, Tamil Nadu Wakf Board to exercise its power in terms of Wakf Act, 1995 and Rules made thereunder as to the office of Mutawalliship in respect of Naina Mohammed Periya Kuthuba Pallivasal. Thus, there is no infirmity in the impugned steps of the respondent Wakf Board.
41. Thus, the continuance of the petitioner as the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal after the death of his father O.M.S.Abdul Basith Alim Sahib and several intervention of the Court is temporary in nature. The petitioner cannot claim permanency merely because the petitioner's father O.M.S.Abdul Basith Alim Sahib officiated ______________ https://www.mhc.tn.gov.in/judis Page No 31 of 34 W.P. (MD) No.3791 of 2022 as Mutawalli after the death of the petitioner's and the third respondent's grandfather namely, O.M.S.Syed Masood Alim Sahib in 1985.
42. The petitioner has also been summoned earlier for an enquiry. However, the petitioner has not brought same to the attention of this Court. Thus, there is a suppression of fact. Whether the petitioner has requisite qualification to continue as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal is to be decided by the Wakf Board as was observed by the Division Bench of this Court in its order dated 22.03.2018 in W.A. (MD) Nos.865 and 866 of 2016. Merely because the Appeal Suit stood abated itself would not mean that the post of Mutawalli automatically fell on the lap of the petitioner even though the petitioner may or may not have the requisite qualification.
43. The first and second respondents who are the officials of the Wakf Board have power to decide as to whether the petitioner has requisite qualification or does not suffer from any disqualification under the Wakf Act, 1995. Therefore, I do not find any merits in the present Writ Petition.
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44. The petitioner and the third respondent and other persons are required to appear before the first respondent for enquiry. The first respondent is directed to complete the enquiry within a period of three months from the date of receipt of a copy of this order and thereafter, appoint a person who is competent to step in as the Mutawalli.
45. This Writ Petition is dismissed. No cost. Consequently, connected Miscellaneous Petitions are closed.
01.04.2022 Internet : Yes/No Index : Yes / No jen / smn2 To
1.The Chief Executive Officer, The Tamil Nadu Wakf Board, No.1, Jaffer Syrang Street, Vallal Sethakathi Nagar, Chennai – 600 001.
2.The Inspector of Waqf, 54, High Road, Tenkasi District.
______________ https://www.mhc.tn.gov.in/judis Page No 33 of 34 W.P. (MD) No.3791 of 2022 C.SARAVANAN, J.
jen / smn2 Pre-Delivery Order made in W.P.(MD) No.3791 of 2022 and W.M.P. (MD) Nos.3298 & 3299 of 2022 01.04.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 34 of 34