Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 1102 (MAD)

V. S. Basha v. The Tamil Nadu Wakf Board

2003-07-23

P.D.DINAKARAN

body2003
Judgment :- Aggrieved by the proceedings of the Wakf Board dated 19.3.2003 appointing Superintendent of Wakfs, Salem, as Election Officer and directing him to conduct the election to the office of Mutawalli for Valappadi mosque known as Jamia Masjid, Valappadi Town and Taluk, Salem District, the petitioner seeks a writ of Certiorari calling for the records relating to R.C.16090/B3/SLM/2002 dated 19.3.2003 on the file of the Tamil Nadu Wakf Board, Chennai and quash the same. 2. The impugned resolution of the respondent dated 19.3.2003 reads as under. "Sl.No.1(Supp.) Rc.16090/B3/SLM/2002Item No.22/2003 JAMIA MASJID, VALAPADI TALUK AND TOWN, SALEM DISTRICT. RESOLUTION: Dt.19.3.2003. Valappadi Mosque known as Jamia Masjid, Valappaddi Town and Taluk, Salem District is a sureyed and notified Wakf and its G.S.No.is 254/SLM. Complaints have been received through telegrams and petitions from the Jamathars against the Muthawalli Janab.V.S. Basha and the Secretary Janab.A.Alijan alleging that they have not handed over the accounts to the Jamathars; they have let the Mosque management in a careless situation and they are acting according to their whims and fancies without consulting the Jamathars and they have requested the Board to rectify the irregularities committed by the present management, to regularize the rental and other income of the Mosque and to conduct proper election for the management of the Mosque. On these complaints, the Superintendent of Wakfs, Western Zone, Salem was directed on 5.11.2002 to inspect the Wakf and to submit a detailed report. The Superintendent of Wakfs, Salem in his report dated 10.1.2003 has stated that the Muthawalli, who had requested time during the enquiry conducted by him on 13.12.2002, appeared before him for the further enquiry on 8.1.2003 and has orally contended that the Board has no power to interfere in the administration of the Mosque and refused to produce Accounts or records for the enquiry. The Superintendent of Wakfs has further reported that the Jamathars assembled in the Mosque premises during his enquiry and formed an adhoc committee consisting of 11 members and requested for its approval in the better interests of the Wakf. He has also forwarded the petition dated 9.1.2003 received from Haji K.V.S. Abdul Shukoor to this effect. The Superintendent of Wakfs has further reported that the Jamathars assembled in the Mosque premises during his enquiry and formed an adhoc committee consisting of 11 members and requested for its approval in the better interests of the Wakf. He has also forwarded the petition dated 9.1.2003 received from Haji K.V.S. Abdul Shukoor to this effect. As regards the petition of the Jamathars, the Superintendent of Wakfs, Salem has reported that Janab.V.S. Basha is a default Muthawalli and his period of Muthawalliship already expired on 16.12.2001 and that he has not taken any steps to convene the General Body Meeting to select new office bearers or a committee for the Mosque. Further, the Muthawalli has not rendered accounts to the Board from 1957-58 to 2001-2002 and not remitted contribution and that his activities are against the Board as well as the Jamathars of Valappadi. The matter came up before the Board today. Notices were sent to parties Janab.A.K. Isaq Ali, Janab.A.Liyakath Ali, Janab.A.Siddiq, Janab.A.Wahab, Janab.E.Mohamed Sheriff, Janab.E.Shajahan, Janab.K.V.S.A.Fathah, Janab.K.V.S.A.Sukoor, Janab.K.V.S.A.Umar Farook, Janab.V.S.Basha (Muthawalli), Janab.A.Ali John, Janab.M.M.A.Mannan Hajiar and the Superintendent of Wakfs, Salem are present. Janab.Abdul Samad called absent. Janab.S.A.Feroz, Advocate filed vakalat for Janab.V.S.Basha, Muthawalli and Janab.A.Ali John, Secretary of the Wakf and Janab.S.S.Hussain Mian, Advocate filed vakalath for Janab.A.Liakath Ali. Heard the representations. The Board notes that the above Wakf has been treated as an unassessable Wakf and Accounts are not submitted and contribution not remitted to the Board. The persons in the management should have submitted accounts for the last five years upto 2001-2002 and remitted contribution as per the provisions of the Wakf Act 1995 but have not cared to do so. As the period of the present management has already been expired and in view of the present situation reported, it is hereby resolved to hold election by secret ballot system for electing a 20 member committee for the election of Valappadi Mosque known as Jamia Masjid, Valappadi, Salem District within a period of 3 months. The Superintendent of Wakfs, Salem is appointed as the Election Officer and he is directed to conduct election within the stipulated time by strictly observing all the usual formalities. Sd/- Chairperson. " 3.1. The Superintendent of Wakfs, Salem is appointed as the Election Officer and he is directed to conduct election within the stipulated time by strictly observing all the usual formalities. Sd/- Chairperson. " 3.1. According to the respondent Wakf Board, the Superintendent of Wakfs, Salem, in his report dated 10.1.2003, has stated that he had received certain complaints against the petitioner to the effect that the petitioner claiming himself as Mutawalli and one Janab A.Alijan, claiming himself as Secretary of the said Wakf, have not handed over the accounts to the Jamathars and have let the mosque management in a careless situation and have acted according to their whims and fancies, without consulting the Jamathars and therefore, requested the Board to rectify the irregularities committed by the petitioner and the Secretary and to regularise the rental and other income of the mosque and to conduct appropriate election for the management of the mosque. 3.2. On receipt of such complaint, the Superintendent of Wakfs, Western Zone, Salem, was directed on 5.11.2002 to inspect the Wakf and to submit a report. 3.3. In the report of the Superintendent of Wakfs, Salem, dated 10.1.2003, it is further stated that the Mutawalli sought time during the enquiry conducted by him on 13.12.2002 and thereafter, appeared for further enquiry on 8.1.2003 and contended that the Board has no power to interfere with the administration of the mosque by the petitioner and refused to produce accounts or records of the mosque. 3.4. It is also reported that the petitioner has committed default in not taking steps to convene a general body meeting and to elect new office bearers, even though his term expired on 16.12.2001 nor rendered any account to the Board from 1957-58 to 2001-2002 nor remitted his contribution. 3.5. It is under such circumstances, the Board resolved to appoint Superintendent of Wakfs, Salem, as Election Officer and directed him to conduct the election. Aggrieved by the said resolution of the Board dated 19.3.2003, the petitioner has preferred the above writ petition. 4.1. According to the learned counsel for the petitioner, the petitioner was not appointed as Mutawalli for any fixed term, but he has inherited the office of Mutawalli, after the death of his father in the year 1985. Therefore, the finding that the term of office of the petitioner as Mutawalli expired on 16.12.2001, as observed in the impugned resolution, is incorrect. 4.2. Therefore, the finding that the term of office of the petitioner as Mutawalli expired on 16.12.2001, as observed in the impugned resolution, is incorrect. 4.2. The learned counsel for the petitioner contends that if the respondent Board propose to remove the petitioner from the office of Mutawalli, they should have conducted an enquiry, as contemplated under Section 64(3) of the Act, which reads as under. "Section 64: Removal of mutawalli. (1) ... (2) ... (3) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of mutawalli; or .... " 4.3. It is further contended by the learned counsel for the petitioner that the petitioner was not given any opportunity to put forth his contentions nor he was furnished with any of the documents relied upon by the Board. Inter alia, it is contended that the petitioner is entitled to maintain the above writ petition, without approaching the Tribunal. 4.4. The learned counsel for the petitioner, to substantiate his contentions, places reliance on the decisions in A.M. ALI AKBAR v. KEELAKARAI SOUTH STREET JAMATH MASJID PARIPALANA COMMITTEE reported in 2001 MLJ 126 , B. GOWRA REDDY v. GOVT. OF A.P. reported in AIR 2002 A.P.313 and ALI HUSSAIN v. PARANGIPETTAI S. ALI MOSQUE @ VATHIYAALLI reported in 2002 (5) Supreme 256 . 5. I have given careful consideration to the above submissions of the learned counsel for the petitioner. 6. It is not in dispute that the Tribunal constituted under Section 83 of the Wakfs Act, 1995, is empowered for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under the Act. Any Mutawalli person interested in a Wakf or any other person aggrieved by an order made under the Act or rules made thereunder, may make an application to the Tribunal for determination of any dispute, question or other matters relating to the Wakf. Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil Procedure, while trying the suit or executing a decree or order. Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil Procedure, while trying the suit or executing a decree or order. Section 83(9) of the Act also provides that no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal, which would otherwise means that the Tribunal is also empowered to pass an interim order. 7. In A.M. ALI AKBAR v. KEELAKARAI SOUTH STREET JAMATH MASJID PARIPALANA COMMITTEE reported in 2001 MLJ 126 , it is only held that the Tribunal constituted have no jurisdiction to entertain a petition seeking for permanent injunction restraining the petitioners therein from interfering in their management of the Jamath and consequently, granting temporary injunction restraining the revision petitioners from holding the election is also unsustainable. Therefore, the ratio laid down in the above decision is against the petitioner to the effect that there cannot be any injunction against holding the election. 8. The case in B. GOWRA REDDY v. GOVT. OF A.P. reported in AIR 2002 A.P. 313 is related to a dispute as to the Wakf property wherein it is held that the occupants who were served with notice before notifying the property occupied by them as a Wakf property are entitled to move a writ petition under Article 226 of the Constitution of India. Hence, the ratio laid down in the above case would not be applicable to the instant case. 9. The case in ALI HUSSAIN v. PARANGIPETTAI S. ALI MOSQUE @ VATHIYAALLI reported in 2002 (5) Supreme 256 is with reference to the ratio that the right of Mutawalli in management of the Wakf can be nullified only when the order of removal is pass under the Act. In the instant case, even though the petitioner contends that he has inherited Mutawalliship after the death of his father in the year 1985, the finding of the Board is that his term of office as Mutawalli has expired on 16.12.2001. Therefore, the question of removing the petitioner, after the expiry of his term of office as Mutawalli does not arise. Therefore, the question of removing the petitioner, after the expiry of his term of office as Mutawalli does not arise. Consequently, his contention that the impugned order is contrary to Section 64(3) of the Act, is also not sustainable in law and the question of holding enquiry for removing the petitioner from the office of Mutawalli also does not arise, in view of the findings of the Board. 10. Therefore, if the petitioner is aggrieved by the findings of the Board that his term has expired on 16.12.2001, he is at liberty to stake his claim by filing an application before the Tribunal, which is competent to go into the grievance of the petitioner in that regard. 11. The only remaining contention that the petitioner has not been given a fair and reasonable opportunity nor given any relevant records is not sustainable in law, in view of the findings of the Board in the resolution that even though sufficient opportunity was given to the petitioner, he has failed to avail the same on 13.12.2002 and on 8.1.2003. On the other hand, it is observed that it is only the petitioner who refused to produce the records relating to the accounts of the Wakf. 12. All the contentions raised on behalf of the petitioner fails and hence, except to permit the petitioner to move the Tribunal within fifteen days from the date of receipt of a copy of this order and to direct the Tribunal to dispose of the application expeditiously, and in any event, within six months from the date of receipt of a copy of this order and to make it clear that the election which was admittedly held on 20.7.2003 pursuant to the impugned resolution of the Board dated 19.3.2003, shall be subject to the final decision by the Tribunal in that regard, no further order is required in the writ petition. The writ petition is dismissed with the above directions. No costs. Consequently, WPMP No.25397 of 2003 is closed.