Madras High Court
Vinod K. Sharma vs The State Of Tamil Nadu (W.P.No.1134 Of ...
Application No.7140 of 2010 in C.S.No.117 of 1954 VINOD K. SHARMA, J., The applicant seeks appointment as a Trustee in place of defendant No.23 in C.S.No.117 of 1954 by inheritance.
2 The case of the applicant is that late N.Paliwan Sahib, maternal grandfather of the applicant had founded five trusts, i.e., of the year 1905, 1907, 1909, 1911 and 1915 by registered trust deeds. The property covered under the trust deed of 1915, is a house having door No.45 (old No.1/99) Linghi chetty street, Chennai.
3 While disposing of C.S.No.117 of 1954, this Court framed a Scheme vide order dated 01.10.1963. The Clause 3 of the Scheme as framed by this Court reads as under:
3. That the parties herein shall be at liberty to apply, well in advance of the period of expiry of three years; for filling up the vacancies which will arise and in the event of any trustee resigning or dying and that the Wakf Board also shall be at liberty to apply to this Court in this behalf ;
4. It is submitted by the applicant, that under the Scheme as framed, the applicant is entitled to be appointed as a trustee in the place of deceased trustee, and that the power of appointment is to be exercised by this Court under Clause 3 of the Scheme reproduced above.
5 The learned counsel for the Tamil Nadu Wakf Board opposed this application, on the ground that after coming into force of Wakf Act, 1995, the power to appoint any trustee is with the Wakf Board under Section 32 of the Wakf Act, 1995, and this Court does not have jurisdiction, to entertain the application filed by the applicant.
6 Section 32 of the Wakf Act reads as under:-
32. Powers and function of the Board:-
(1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended:
Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the Wakf and any usage or custom of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs.
Explanation - For the removal of doubts, it is hereby declared that in this sub-section, "Wakf" includes a Wakf in relation to which any Scheme has been made by any Court of law, whether before or after the commencement of this Act.
(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be
(a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every Wakf;
(b) to ensure that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were intended or created;
(c) to give directions for the administration of wakfs;
(d) to settle Schemes of management for a Wakf:
Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;
(e) to direct -
(i) the utilization of the surplus income of a Wakf consistent with the objects of a Wakf;
(ii) in what manner the income of a Wakf, the objects of which are not evident from any written instrument, shall be utilized.
(iii) in any case where any object of Wakf has ceased to exist or has become incapable of achievement, that so much of the income of the Wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community:
Provided that no direction shall be given under this Clause without giving the parties affected an opportunity of being heard.
Explanation - For the purposes of this Clause, the powers of the Board shall be exercised-
(i) in the case of a Sunni Wakf, by the Sunni members of the Board only; and
(ii) in the case of a Shia Wakf, by the Shia members of the Board only:
Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the powers should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this Clause;
(f) to scrutinise and approve the budgets submitted by mutawallis and to arrange for the auditing of account of wakfs;
(g) to appoint and remove mutawallis in accordance with the provisions of this Act;
(h) to take measures for the recovery of lost properties of any Wakf;
(i) to institute and defend suits and proceedings relating to wakfs;
(j) to sanction any transfer of immovable property of a Wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act:
Provided that no such sanction shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction;
(k) to administer the Wakf Fund;
(l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the Wakf property as the Board may, from time to time, require;
(m) to inspect, or cause inspection of, Wakf properties, accounts, records or deeds and documents relating thereto;
(n) to investigate and determine the nature and the extent of Wakf and Wakf property, and to cause, whenever necessary, a survey of such Wakf property;
(o) generally do all such acts as may be necessary for the control, maintenance and administration of wakfs.
(3) Where the Board has settled any Scheme of management under Clause (d) or given any direction under Clause (e) of sub-section (2), any person interested in the Wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decisions of the Tribunal thereon shall be final.
(4) Where the Board is satisfied that any Wakf land, which is a Wakf property, offers a feasible potential for development as a shopping centre, market, housing flats and the like, it may serve upon the mutawalli of the concerned wakf a notice requiring him within such time, but not less than sixty days, as may be specified in the notice, to convey its decision whether he is willing to execute the development works specified in the notice.
(5) On consideration of the reply, if any, received to the notice issued under sub-section (4), the Board, if it is satisfied that the mutawalli is not willing or is not capable of executing the works required to be executed in terms of the notice, it may, with the prior approval of the Government, take over the property, clear it of any building or structure thereon, which, in the opinion of the Board is necessary for execution of the works and execute such works from Wakf Funds or from the finances which may be raised on the security of the properties of the Wakf concerned, and control and manage the properties till such time as all expenses incurred by the Board under this section, together with interest thereon, the expenditure on maintenance of such works and other legitimate charges incurred on the property are recovered from the income derived from the property:
Provided that the Board shall compensate annually the mutawalli of the concerned wakf to the extent of the average annual net income derived from the property during the three years immediately preceding the taking over of the property by the Board.
(6) After all the expenses as enumerated in sub-section (5) have been recouped from the income of the developed properties, the developed properties shall be handed over to mutawalli of the concerned wakf.
7 In support of the contention, that the Wakf Board alone is competent to appoint trustees, reliance is placed on the judgment of this Court in the case of Mohamed Mujeebur Rahman vs. The State of Tamil Nadu (W.P.No.1134 of 2011 dated 06.06.2011) wherein this Court was pleased to lay down as under:-
"33. After referring to plethora of decisions about the jurisdiction of the Civil Court to interfere in the matters relating to the wakf, this Court having held that Act 43 of 1995 is a self-contained code and that any dispute relating to the wakf has to be decided by the Tribunal constituted under Act 43 of 1995 and there has been a specific bar of jurisdiction of the Civil Court under Section 85 of Act 43 of 1995 relating to any wakf or wakf property or any other matter which is required to be decided by the Tribunal and having found that even though under the Wakf (Amendment)Act, 1984 there was no notification excluding Section 92 of the Code of Civil Procedure, subsequently under Act 43 of 1995, in Explanation of Section 32(1), it has been explicitly made clear that even a Scheme made by the Civil Court is included as a wakf and that the settlement of Scheme is within the purview of the Wakf Board, has allowed the revision by setting aside the order of the Principal Judge, City Civil Court, Chennai and directed the Wakf Board to make necessary advertisement for the purpose of electing trustees and ordered that till such decision is taken status quo shall be maintained. The operative portion of the order is as follows: "37. In the facts and circumstances of the case, and in view of the clear position of law, the Wakf Board is directed to make necessary advertisements in one of the leading English Daily and two leading Tamil Dailies circulated in Chennai city and Saidapet Taluk calling for applications from the interested persons belonging to Muslim community residing at Madras or Saidapet Taluk to be appointed as Trustees and shall give fair opportunity to all such applicants including those who have already applied before the Principal Judge, City Civil Court, Chennai despite their being selected or rejected, and take a decision by conducting a detailed enquiry in respect of the merits and demerits of the candidates which will suit to the best interest of the Wakf. Till then, the status quo prevailing as on date will be continued & quot;
40. The submission made by the learned counsel for the petitioner by relying upon Section 66 of Act 43 of 1995 is again a misnomer. Section 66 of Act 43 of 1995, which as follows:
" Section 66. Powers of appointment and removal of Mutawalli when to be exercised by the State Government:
Whenever a deed of wakf or any decree or order of a court of any Scheme of management of any wakf provides that a court or any authority other than a Board may appoint or remove a mutawalli or settle or modify such Scheme of management or otherwise exercise superintendence over the wakf, then notwithstanding anything contained in such deed of wakf, decree, order or Scheme, such powers aforesaid shall be exercisable by the State Government.
Provided that where a Board has been established, the State Government shall consult the Board before exercising such power. & quot;
enables the Government to exercise its power when a deed of wakf or any decree or order of the Court in respect of any Scheme of management of a wakf provides the Court or any authority other than a Board to make appointment or removal of a mutawalli or settle or modify such Scheme of management, notwithstanding such power given to the Court or authority and in cases where a Board has been established, the Government shall consult the Board before exercising such powers. This is an extraordinary power of the State Government taking the power of the Wakf Board as well as the Scheme Court and that is not applicable to the facts of the present case at all.
43. When that is the only dispute that is to be decided, by virtue of Explanation to Section 32(1) of Act 43 of 1995, it has been made abundantly clear that the wakf includes a Scheme made by the Court and that explanation itself is an answer making it clear that on a conjoint reading with Section 85 of Act 43 of 1995 it is the Wakf Board which has to execute and act as per the terms of the Wakf, which has been created by way of a Will based on which a Scheme has been framed by the Scheme Court under Section 92 of the Code of Civil Procedure. Code of Civil Procedure, being a general and procedural law based on which the Scheme suit is filed on the basis of a Will executed by the testatrix, is certainly subject to the special law, viz., Act 43 of 1995,which is a personal law in respect of the administration of the wakfs belonging to Mussalmans. By virtue of the specific provision available under the Explanation to Section 32(1) and Section 85 of Act 43 of 1995 creating a bar on the Civil Court, there is absolutely no difficulty to come to a conclusion that it is the Wakf Board which has to enforce and act as per the Scheme framed by the Civil Court.
8 It is also the contention of the learned counsel for the Wakf Board that in view of the law laid down by this Court, and the fact that Wakf Board, was not heard when the Scheme was initially framed, the right to appoint trustees, will not be governed by the Scheme framed by this Court, but the power is to be exercised under section 32 of the Wakf Act.
9 The learned counsel for the Wakf Board further relied on the judgment of this Court in CRP(PD)No.2716 of 2003, W.P.No.3511 of 2006 and other connected cases (A.K.Khalifulla and others vs. S.A. Gulam Rasool and another - decided on 17th October, 2007) laying down as under:-
"3. The Principal Subordinate Judge, after hearing both sides, by an order dated 1.09.2003 directed the transfer of the entire papers relating to appointment of trustees pursuant to the Scheme decree made in O.S.No.44 of 1952 to the second respondent, Tamil Nadu Wakf Board. Aggrieved by the said order, the present Civil Revision Petition is filed. The contention was that once the Civil Court frames a Scheme decree, it can only be dealt with by the Civil court and neither the Wakf Board nor the Wakf Tribunal will have any jurisdiction over the same.
11.The short question that arises for consideration is that subsequent to the enactment of the Wakf Act, 1995, whether the Wakf Board has jurisdiction to decide all matters arising out of the Schemes evolved by the Civil Court. It was contended by the revision petitioners that the order of the Principal Subordinate Judge was erroneous and the learned Judge ought not to have transferred the matters to the Wakf Board as the Scheme decree was made by the Civil Court.
15. In Syed Peer Shah Mohideen Kadiri v. T.N.Wakf Board by its Secretary (supra), in para 3, it was observed as follows:-
"It is in this way that the controversy has thus been considerably watered down.
There are three judgments of our Court which practically conclude the matter. The first one is reported in C.S.Peeran v.State Wakf Board, VENKATADRI, J has observed that once a special Act comes into force for the purpose of securing better administration and supervision of Wakf properties and concurrently creates an obligation and enforces the performance in a specified manner, the rule is that the performance cannot be enforced in any other manner. This is based on the well-known principle that the special excludes the general and also the maxim that a special prescription, which has been made to exercise a power, cannot be substituted by another one not provided for by an enactment or under the common law. This judgment of VENKATADRI, J was approved by N.S.RAMASWAMI, J. in Application No.674 of 1971 in C.S.No.307 of 1934 (Special Officer for Wakfs, Madras v.S.B.Fazluddin and others). ALAGIRISWAMI, J. again sitting on the original side in Application No1078 and 1079 of 1968 in C.S.No.159 of 1931 Mohamed Ziauddin v.Noorulla Sahib reiterated the said principle in an exhaustive, reasoning given by him......"
25. In the light of this legislative development, the arguments of the petitioners that the interpretation given under the old Act should continue to be governed for dealing with the provisions of the new enactment is only stated to be rejected. In fact, when parliament makes a new law and intends to remove any mischief under the old laws the attempt of this Court must be to try to interpret the same in tune with the object of the new enactment. It cannot put the clock back as contended by the learned counsel for the revision petitioners.
26.Under the old enactment of 1954, there was neither any judicial Tribunal constituted nor power was given to the Wakf Board to modify the Schemes made by the Court of law, either before or after the commencement of 1995 Act as found in the explanation to the proviso provided under Section 32. Further sub-sections (d) and (g) of Section 32, the Wakf Board has also been given powers to appoint Mutawallis for vaious wakfs and frame Schemes. Though the judgment rendered by the Division Bench, prescribed over the Honourable Chief Justice MARKANDEY KATJU(as he then was), dealt with a case of the petitioner approaching a writ Court, yet, the interpretation given to 1995 Act in the case relating to Salem Khan v. Tamil Nadu Wakf Board and Others (supra) case will apply to this case in all its four corners. Therefore, there is no substance in the argument of the revision petitioners. Hence, the Civil Revision Petition shall stand dismissed. Consequently, connected CMP is also dismissed. No costs.
10 The reliance was also placed on the judgment of this Court in the case of U.Ghulam Mohamed Ghouse vs. TamilNadu Wakf Board rep by its Chief Executive Officer No.7,9th Cross Road, Indira Nagar, Chennai 20 and others (W.P.Nos.7378 of 2004, 37465 of 2005 and CRP(PD).392 of 2006 decided on 5th January 2008) laying down as under:
"5. It is pursuant to the said order dated 09.11.2004, the Principal Sub Court, Cuddalor has now passed orders in I.A.No.104 of 2004 in O.S.No.53 of 1952 appointing respondents 3 and 9 to 12 in W.P.No.34769 of 2005 as trustees of the above referred to Wakf Board. In the above stated factual background of this case, learned counsel appearing for the respective parties addressed their arguments. All the learned counsel in unison contended that after coming into force of the Wakf Act, 1995(hereinafter referred to as the '1995 Act'), by virtue of Sections 32 and 69 of the 1995 Act, all the Wakfs in the State including the Wakfs in relation to which any Scheme has been framed by any Court of law, vests with the first respondent Wakf Board and that it is the duty of the said Board to exercise its power under the 1995 Act for the proper superintendence, maintenance, control and administration including any income derived from such properties of the Wakf. Learned counsel further pointed out that the bar of jurisdiction of the Civil Courts as specified under Section 85 of the 1995 Act would be in relation to matters which could be tried by the Tribunals that are constituted under Section 83 of the 1995 Act.
6. We are concerned with the question whether the Civil Court viz. The Principal Sub Court, Cuddalore can continue to exercise its jurisdiction in relation to the present wakf by virtue of the Scheme decree passed in O.S.No.52 of 1953 dated 14.08.1959. Under Section 32 of 1995 Act, it has been explicitly made clear that the general superintendence of wakfs in a State shall vest in the Board or the State itself. The explanation to sub-section 1 of Section 32 of 1995 Act makes it clear that the expression "wakf" used in Sub-Section 1 would include a wakf in relation to which any Scheme has been made by any Court of law. Sub-section 2 inter-alia contains the other functions of the Board, as stipulated in Sub-Section 1 of Section 32 of the 1995 Act and the power of settle Schemes of management for a wakf. The proviso to said Section 32(2) of 1995 Act however states that no such settlement should be made without giving the parties affected an opportunity of being heard. Under Section 69 of the 1995 Act, it is again stated that the first respondent Board, if satisfied, whether on its own motion, or on the application of not less then five persons interested in any Wakf Board can by an order frame such Scheme for the administrtion of the wakf after the consultation with the mutawalli or the applicant in the prescribed manner. The other sub Sections of 69 1995 Act specifies as to how such Scheme framed by the Wakf Board should be validated and enforced as well as for any aggrieved person to wok out his remedy by approaching the appropriate Tribunal. Sub-Section 5 of Section 69 of 1995 Act invests with the Wakf Board necessary powers for appointment of suitable person to perform all or any of the functions of the mutawalli for proper administration of the wakf.
7. A conjoint reading of the proviso along with the provisions along with the other provisions makes it abundantly clear that after the coming into force of the 1995 Act, the first respondent who has been exclusively invested with the powers can deal with all the existing wakf as well as wakfs to be created in future. Having regard to the explanation contained in Sub Section 1 of Section 32 of the 1995 Act, even the wakfs governed by the provisions of any Civil court decree shall vest with the first respondent Board automatically. Under such circumstances, there was no scope for the Principal Sub Court, Cuddalore to have exercised its powers, merely based on the decree dated 14.8.1959 passed in O.S.No.53 of 1952 as confirmed in A.S.No.5 of 1956. any person who is interested in the wakf wish to seek for any appointment of trustees for the wakf should have only approached the first respondent Board even if it were to be under the Scheme decree. Therefore, the application filed in I.A.No.104 of 2004 in O.S.No.53 of 1952 was not maintainable in law.
11 In view of the settled proposition of law referred to above, the contention raised by the learned counsel for the Tamil Nadu Wakf Board deserves to be accepted that the application for appointment of trustee is not competent in this Court.
12 The learned counsel for the applicant also did not dispute, that after coming into force of Wakf Act, 1995, this Court will have no jurisdiction to appoint the trustees.
13 The contention of the learned counsel for the applicant was that in view of the Scheme framed by this Court, regulating the appointment of trustees, Tamil Nadu Wakf Board, under Sec.32 of the Wakf Act, 1995, has no authority to appoint the trustee.
14 On consideration, I find that the contention of the learned counsel for the applicant, that this Court is to appoint the trustees cannot be accepted. Similarly, stand of the learned counsel for the Tamil Nadu Wakf Board that appointment has to be made by the Wakf Board under Sec.32 of the Wakf Act 1995 also cannot be accepted. The appointment in fact is to be made by the State Government in consultation with the Tamil Nadu Wakf Board.
15 Section 66 of the Wakf Act 1995 reads as under:
"Powers of appointment and removal of mutawalli have to be exercised by the State Government. Whenever a deed of wakf or any decree or order of a court of any Scheme of management of any wakf provides that a court or any authority other than a Board may appoint or remove a mutawalli or settle or modify such Scheme of management or otherwise exercise superintendence over the wakf, then notwithstanding anything contained such deed of wakf, decree, order or Scheme, such powers aforesaid shall be exercisable by the State Government:
Provided that where a Board has been established, the State Government shall consult the Board before exercising such powers."
16 The reading of Sec.66 of the Wakf Act 1995 shows that the Act has been given an overriding effect over the Wakf deed or the Scheme framed by the Court where power to appoint trustees is regulated by Wakf deed or Scheme of the Court that the power in that event, is to be exercised under Sec.66 of the Tamil Nadu Wakf Act, 1995.
17 The contention of the learned counsel for the Wakf Board that this Court in the case of Mohamed Mujeebur Rahman vs. the State of TamilNadu rep. By its Secretary Backward and Most Backward Classes Department, Secretariat, Fort St. George, Chennai 600 009 had rejected the plea regarding right of the State Government to appoint trustees cannot be accepted.
18 This Court nowhere held that Sec.66 of the Wakf Act will not apply with regard to the appointment of trustees where the power is vested with the Court. This Court had merely held that the power under Sec.66 of the Act is extraordinary power given under the Act. This Court in the facts and circumstances of that case held that provisions under Sec.66 of the Act was not applicable to the facts of the said case. This is not the position here. Clause 3 of the Scheme as framed by this Court stipulated that in future, the trustees were to be appointed by this Court, on an application made. Thus, the provisions of Sec.66 of the Wakf Act will be attracted to this case.
19 Similarly, judgment of this Court in the case of A.K.Khalifulla and others vs. S.A.Gulam Rasool and another (supra) and the judgment in the case of U.Ghulam Mohamed Ghouse Vs. Tamil Nadu Wakf Board (supra) and the judgment of this Court in the case of U.Ghulam Mohamed Ghouse vs. TamilNadu Wakf Board rep by its Chief Executive Officer No.7,9th Cross Road, Indira Nagar, Chennai 20 and others (W.P.Nos.7378 of 2004, 37465 of 2005 and CRP(PD).392 of 2006 decided on 5th January 2008) are not applicable to the facts of this case.
20 In all these cases, the Court did not consider as to whether Sec.66 of the Wakf Act would apply, where right under the Scheme for appointment vests with the Court.
21 In any case, reading of Sec.66 of the Act, is very clear, that the intention of the legislature was to give an overriding effect to the Act over the Wakf deed and decree/judgment of the Court.
VINOD K. SHARMA, J., vaan/ari 22 In the case in hand, vacancy is to be filled up by the State Government on an application made, but with the consultation with the Wakf Board.
23 In view of the settled position explained above, the contention of the learned counsel Tamil Nadu Wakf Board deserves to be accepted that this Court has no jurisdiction to entertain the present application, as remedy with the applicant is to approach the State Government under the Wakf Act, 1995.
24 The application is ordered to be returned to the applicant for presentation before the appropriate authority in accordance with law.
No costs.
16.11.2011 ari/vaan Application No.7140 of 2010 in C.S.No.117 of 1954