Madras High Court
Tirupur Khaderpet Ahle Sunnath Jamath vs The Chairman on 10 January, 2023
C.R.P.No.3572 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.11.2022
PRONOUNCED ON : 10.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.No.3572 of 2022
and
C.M.P.Nos.18976 and 18979 of 2022
Tirupur Khaderpet Ahle Sunnath Jamath
Masjid & Madrasa Paribalana Sabai,
Rep by its President,
Mr.A.Salim @ A.Abdul Rahman,
No.25, Lhaerpet, Tirupur. ... Petitioner
vs
1.The Chairman,
Tamil Nadu Waqf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
2.The Chief Executive Officer
Tamil Nadu Waqf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
3.R.Syed Haroon ... Respondents
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution
of India r/w Section 83(9) of the Waqf Act 1995, praying to set aside the fair
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C.R.P.No.3572 of 2022
and decretal order dated 02.11.2022 made in O.A.No.237 of 2019 (Old No.15
of 2014) on the file of Tamil Nadu Waqf Tribunal, Chennai.
For Petitioner : Ms.A.Ajimath Begum
For R1 and R2 : Mr.Dr.C.Shankar
For R3 : Mr.N.A.Nissar Aiimed
ORDER
The Civil Revision Petition is filed against the dismissal of the original application filed by the petitioner before the Tamil Nadu Waqf Tribunal, Chennai seeking permanent injunction restraining the respondents 1 and 2 from passing any orders under Section 65 of the Waqf Act without following due process of law viz., by issuing notice and conducting a detailed enquiry and passing orders on the subjective satisfaction as per the requirement contemplated under Section 65 of the Waqf Act.
2. According to the petitioner, Tiruppur Khaderpet Ahle Sunnath Jamath Masjid and Madarasa Paripalana Sabai, Tiruppur is a public and religious Waqf and it is governed by committee members consisting of 21 members to be elected by local jamath and recognised/approved by Tamil Nadu Waqf Board. In the year 2010, 21 members were elected and the term of 2/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 office was approved upto 2013 by the 1st respondent. According to the petitioner, after the expiry of the term of office on 23.12.2013 another election was conducted and 21 members of the Executive Committee had been elected. The petitioner further submitted that the 3rd respondent and some other persons filed an application before the respondents 1 and 2 for framing of a scheme under Section 69 of the Waqf Act. It was further stated by the petitioner that the 2nd respondent issued a suo motu Show Cause Notice dated 05.09.2014 calling upon the petitioner to give its explanation for certain irregularities/mismanagement of Waqf. The petitioner filed an explanation disputing all the allegations of irregularities/mismanagements. On 24.11.2014, the 2nd respondent conducted an enquiry in which the petitioner also participated and the petitioner was informed that the respondents 1 and 2 had been contemplating with an idea of passing an order under Section 65 of the Waqf Act for taking over the direct management of the Waqf. It is the submission of the petitioner that the respondents 1 and 2 can pass orders for direct management of the Waqf only on the grounds mentioned under Section 65 of the Waqf Act. It was submitted that one of the 3/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 allegations against the petitioner was election was not conducted for electing the members of the Executive Committee in the presence of Waqf Officials from 2013.
3. According to the petitioner, election was conducted in the year 2013 properly and the same was forwarded to the respondents 1 and 2 for due recognition and pending consideration of the same, the respondents 1 and 2 are contemplating with initiation of proceedings under Section 65 of the Tamil Nadu Waqf Act.
4. The 2nd respondent filed a counter and the same was adopted by the 1st respondent wherein it was submitted that election said to have been conducted on 23.12.2013 was not made in the presence of Waqf Officials. Further, it was submitted by the respondents 1 and 2 in pursuance of the suo motu Show Cause Notice issued by them on 05.09.2014, an enquiry was conducted and the present committee members were removed from their position and the Waqf Board had passed an order for taking over the direct 4/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 management of the Waqf as per the Section 65 of the Waqf Act. The resolution to that effect was passed by the Waqf Board in Item No.102/2014 dated 26.11.2014. It was further stated by the respondents 1 and 2 that the original application filed by the petitioner herein had become infructuous, even at the time of inception and consequently, it is liable to be dismissed.
5. After hearing the arguments of all the parties, the Court below came to the conclusion that already Waqf Board/1st respondent passed a resolution on 26.11.2014 and passed orders for direct management of the Waqf Board. The said resolution dated 26.11.2014 which calls for direct management by the Waqf Board was not at all challenged by the petitioner and hence, the same had become final. Therefore, the Waqf Tribunal come to the conclusion that the original application filed by the petitioner had become infructuous even at the time of filing of the same and hence dismissed the original application. Further, the Tribunal also found that the term of present Members of the Executive Committee had expired even in the year 2016. Aggrieved by the said order of dismissal, the petitioner is before this Court.
6. The learned counsel for the petitioner submitted that the order 5/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 passed by the 1st respondent for taking over the direct management of the petitioner/Waqf but vitiated as it was done without following due process of law by issuing notice or conducting detailed enquiry. It was also submitted that on behalf of the petitioner that when there are suitable persons to manage the Waqf there was no cause of action for the 1st respondent to invoke Section 65 of the Waqf Act 1995 and order direct management of the Waqf. It is further submitted by the learned counsel for the petitioner that an election was conducted for electing 21 Members for Executive Committee of Waqf on 08.12.2013 and the list of elected members were sent to the 1st respondent for approval. Instead of passing orders approving the same, the 1st respondent initiated proceedings under Section 65 of the Waqf Act, 1995 for taking control of the Waqf as if there was nobody to look after the administration.
7. The learned counsel for the respondents 1 and 2 submitted that already a resolution was passed by the 1st respondent for taking over the direct management of Waqf and based on the resolution, an order can be issued. The petitioner without questioning the resolution passed by the 1st respondent cannot maintain the present petition restraining the Board from 6/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 passing any order under Section 65 of the Waqf Act, 1995.
8. The learned counsel for the 3rd respondent supporting the resolution passed by the 1st respondent for removal of the present Executive Committee Members of the petitioner/Waqf and for taking over the management of the Waqf by the 1st respondent, submitted that the person incharge of the waqf affairs indulged in mismanagement and consequently, the 1st respondent issued a Show Cause Notice, conducted an enquiry and thereafter, passed resolution for taking over direct management of the Waqf.
9. Heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondents 1 and 2 and the learned counsel for the 3rd respondent and perused the typed-set of papers.
10. The petitioner herein has filed the original application before the Tamil Nadu Waqf Tribunal, Chennai seeking an order of injunction restraining the respondents 1 and 2 from passing any orders under Section 65 of the Waqf Act, 1995, without following due process of law viz., by issuing 7/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 notice and conducting detailed enquiry and passing orders on the subjective satisfaction as per the requirement as contemplated under Section 65 of the Waqf Act. The respondents 1 and 2 herein filed a counter and brought it to the notice of the Court that even prior to the filing of the original application by the petitioner on 28.11.2014, the 1st respondent passed a resolution for removal of the existing committee members and for taking over the direct management of the petitioner/Waqf. The main prayer in this petition is for injunction restraining the respondents 1 and 2 from exercising its power under Section 65 of the Waqf Act, except by due process of law.
11. The Ex.R1 filed by the 1st respondent proved that already a resolution was passed by the Waqf Board directing direct management of the Waqf by the Waqf Board. The PW.1 examined on behalf of the petitioner in his evidence admitted that Waqf Board issued a notice to them pointing out irregularities. The vernacular portion of evidence of PW.1 is as follows:-
“gphpt[ 64d; fPH; tf;g[ thhpak; bfhLj;j mwptpgg; pwF ; tf;g[ thhpa tprhuizf;F vd; tHf;fwp"Uld; M$h; Mndd; vd;why; rhpjhd;/ fzf;F tHf;Ffs; rhpahf ,y;iy vd;W mwptpg;g[ bfhLj;jhh;fs;. v';fs; fzf;fhsh; ,Uf;fpwhh;. mtiu tprhhpa[';fs; rhpapy;iy vd;why;8/12
https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 ehd; tpsf;fk; mspf;fpnwd; vd;W brhd;ndd;/ Ex.P8y; tut[ bryt[ tpgu';fs; brhy;yg;gltpy;iy vd;why; mJg;gw;wp tf;g[ thhpak; nfl;fhjjhy; brhy;ytpy;iy/ ,j;jPgg; haj;jpYk; tut[ bryt[ fzf;Ffis jhf;fy; bra;atpy;iy/ kDjhuh; tf;ig tf;g[ thhpak; neuo eph;thfk; bra;a cj;jut[ gpwg;gpj;j njjp vdf;F "hgfkpy;iy/”
12. The next witness examined on behalf of the petitioner viz., PW.2 admitted that the 1st respondent passed an order on 26.11.2014 ordering direct management of the petitioner/Waqf and the present application was filed by them only on 28.11.2014. The relevant portion of his evidence in vernacular is extracted below:-
“,e;j tHf;if 28-11-2014 md;W jhf;fy; bra;njhk;/ 26-11- 2014 vd;W Kd; njjpaplL; tf;g[ thhpak; cj;jut[ gwpg;gpj;jij epUgpf;f Mtzk; jhf;fy; bra;Js;nshkh vd;W vd; tHf;fwp"Uf;F jhd; bjhpak;/ 26-11-2014 md;nw tf;g[ thhpak; neuo eph;thfk; vLj;J cj;jutpl;lJ vd;gjhy; 28-11-2014y; epue;ju cWj;J fl;lis nfl;L ,e;j tHf;F jhf;fy; bra;ag;gl;lJ rl;lg;go bry;yhJ vd;why; rhpay;y/”
13. The close scrutiny of evidence of PW.1 and PW.2 make it clear that Ex.R1/resolution was passed by the 1st respondent on 26.11.2014 and the present original application was filed only on 28.11.2014. Though PW.2 in his evidence had stated that order of the Waqf Board was pre-dated 9/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 subsequent to filing of the original application, there is nothing on record to substantiate the same. In the present application, the petitioner seeks an injunction restraining the 1st respondent from passing any order under Section 65 of the Tamil Nadu Waqf Act, 1995 for taking over direct management of the petitioner/Waqf except by due process of law.
14. A perusal of Ex.R1 and admissions of PW.1 and PW.2 would make it clear that the 1st respondent/Waqf Board passed an order for taking over direct management of the Waqf even prior to filing of the present original application. In fact, PW.1 also admitted that the 1st respondent issued a notice regarding irregularities and mismanagement and conducted an enquiry. The petitioner even in his pleadings admitted that a notice was issued by the 1st respondent and an enquiry was conducted only during the course of enquiry, they acquired knowledge about the intention of the 1st respondent to pass an order for direct management of the petitioner/Waqf and hence, they were constrained to file the original application. Therefore, it is clear that a show cause notice was issued to the petitioner and then an order was passed under 10/12 https://www.mhc.tn.gov.in/judis C.R.P.No.3572 of 2022 Section 65 of the Act for direct management of the petitioner/Waqf. Therefore, even on the date of filing of the original application, the prayer had become infructuous as already a resolution was passed by the 1st respondent for taking over direct management of the petitioner/Waqf.
15. In these circumstances, the finding arrived at by the Tribunal below that the original application filed by the petitioner had become infructuous, cannot be interfered with. Therefore, I do not find any illegality or irregularity in the order passed by the Waqf Tribunal.
16. Accordingly, the Civil Revision Petition stands dismissed. No costs. Consequently, the connected civil miscellaneous petitions are closed.
10.01.2023
NCC : Yes
Index : Yes / No
Speaking Order : Yes / No
dm
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C.R.P.No.3572 of 2022
S.SOUNTHAR , J.
dm
To
1.The Tamil Nadu Waqf Tribunal,
Chennai.
2.The Chairman,
Tamil Nadu Waqf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
3.The Chief Executive Officer
Tamil Nadu Waqf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
C.R.P.No.3572 of 2022
10.01.2023
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