Larabsha Dharga Panruti v. The Tamil Nadu Wakf Board & Others
2005-07-22
K.P.SIVASUBRAMANIAM
body2005
DigiLaw.ai
Judgment :- This writ petition has been filed by two Mutawallis of the petitioner Dharga situated at Panruti Town. They claim to be hereditary Mutawallis. The Dharga owns about 1.19 acres of land and in a portion of the said extent, there are shops. According to the petitioners, respondents-2 to 6 are encroachers, falsely claiming to be Members of a Jamath Committee. The respondents claim to have obtained lease from one of the petitioner mutawallis/Heeralal. They had obtained a document from Heeralal by fraud and deception and had committed criminal trespass on a portion of the Dharga premises on 8.3.1992. This was informed to the police earlier as well as to the Tamil Nadu Wakf Board. A report dated 17.3.1992 had been sent to the Board. 2. W.P.No.6440 of 1992 was earlier filed by the Dharga, praying for a direction to the Wakf Board to remove the encroachments by the said respondents and to proceed against Heeralal for acting against the interests of the Dharga and to direct the Board to prevent the said encroachers from interfering with the administration of the Dharga. Learned single Judge, while disposing of the writ petition, by order dated 23.3.1998, took note of the fact that the Wakf Board was remaining silent though repeated complaints have been made and directed the Board to take up the complaint, to issue notice to the respondents and to pass orders on or before 30.10.1998. While ordering so, the learned Judge also observed that under Section 54 of the Wakf Act, 1995, it was the duty of the Wakf Board, if there was a prima facie case, to issue notice to the encroachers and to take action for the removal of the encroachment and that the Act gave summary powers to take action. 3. The then Chairman of the Board, by order dated 26.2.1999, rejected the prayer for removal of encroachment and it is as against the said order, this writ petition has been filed seeking to quash the same and to direct the Board to remove the encroachment by respondents-2 to 6. The petitioners contend that Heeralal being only one of the trustees, had no power to execute the lease without the consent and authority of the other Mutawallis. Even if the lease was valid, it was only for a period of eleven months.
The petitioners contend that Heeralal being only one of the trustees, had no power to execute the lease without the consent and authority of the other Mutawallis. Even if the lease was valid, it was only for a period of eleven months. The Wakf Board had erroneously interpreted the lease as a permanent lease, whereas, no mutawalli had any power to grant a permanent lease in favour of anyone. The Board had not properly appreciated that the Dharga was a private wakf. Dharga had filed O.S.No.90 of 1982 on the file of the Sub Court, Cuddalore, for a declaration that the Dharga was a private Wakf and that they were the hereditary mutawallis and to restrain the Board from interfering with the management and administration of the Dharga. Though they had succeeded in the suit, the appeal filed by the Wakf Board was allowed by the appellate Court and now, the proceeding was pending before this Court in S.A.No.641 of 1996. According to the petitioner, because of the proceedings initiated by the petitioner, the then Chairman was prejudiced against the petitioners. 4. In the counter affidavit filed by the Secretary of the Board, after denying the various contentions in the affidavit, the Board contended that in their enquiry, it was found that in order to safeguard the sanctity of the Dharga, to utilise the vacant portion of the land and also to prevent anti-social elements from creating problems, a Jamath of the town wanted to construct a Mosque and that the Jamath people had entered into an agreement with one of the Mutawallis agreeing to construct a mosque and that the lease should be for a period of eleven months for the specific purpose of construction. But the purpose of the lease was really a permanent lease. The entry of the Jamath was perfectly legal and the petitioners' claim for hereditary trusteeship was pending for consideration in S.A.No.641 of 1996. 5. In the counter affidavit filed by respondents-2 to 6 they contended that there is no infirmity in the impugned order. The Dharga was a notified public wakf. The Jamath wanted to construct a Mosque in order to safeguard the property from unsocial elements and the Jamath people entered into an agreement with mutawalli Heeralal. The purpose has been clearly stated as a lease. The real idea was only for a permanent tenancy.
The Dharga was a notified public wakf. The Jamath wanted to construct a Mosque in order to safeguard the property from unsocial elements and the Jamath people entered into an agreement with mutawalli Heeralal. The purpose has been clearly stated as a lease. The real idea was only for a permanent tenancy. The other trustee had knowledge of the transaction as well as the construction which was undertaken. The mosque had become a Corporate body and cannot now be changed into an individual character. The Wakf is a public wakf even though the Mutawallis are hereditary. According to the respondents, there was no violation of any of the rights of the joint Mutawallis. 6. At the stage when the writ petition was taken up for hearing during the month of June, 2004, judgment in S.A.No.641 of 1996 had been rendered allowing the appeal, and with the result, holding that the Dharga was a private wakf. While the writ petition was taken up for hearing, learned counsel for the petitioner sought leave of this Court, permission to file an additional affidavit regarding certain events which had allegedly taken place in the meantime, and later sought permission to file two additional affidavits in W.M.P.Nos.25615 and 15616 of 2004. 7. In W.P.M.P.No.25616 of 2004, it is stated that after the disposal of S.A.No.641 of 1996, the writ petition was posted for hearing on 29.6.2004 and the first petitioner was at Madras. The second petitioner was at Panruti. At about 11.30 am., the Chairperson of the Wakf Board, accompanied by four other persons, and about 20 to 25 persons came up to the Dharga premises and the Chairperson inspected the temporary shed put up for holding the prayers. The Pallivasal Jamath Committee members were headed by the Chairperson. The petitioner's son and the second petitioner were asked to meet the Chairperson at the Board's premises on 7.7.2004, along with the petitioner. It is further stated that on 7.7.2004, all of them went to the Wakf Board and they were watching the arrival of the Chairperson, who went up at 5.30 p.m. The petitioner and others were all together inside the place and the Chairperson had told the petitioners that they will proceed with the construction of the Pallivasal inside the Dharga premises.
Though the petitioners represented that the wakf is a private wakf as conclusively been established in the appeal and that the petitioners had no other income except the income from the tenants of the Dharga premises, the Chairperson would not listen to the contentions of the petitioner. It is stated that the Chairperson was supporting the fifth respondent by insisting that the petitioners should allow the Mosque to be constructed and that they should give up their claims. The Chairperson directed the petitioners to produce the copy of the judgment in S.A.No.641 of 1996. According to the petitioner, the manner in which the Chairperson had thought fit to construct the mosque inside the premises after the judgment in the Second Appeal would reveal the partisan attitude of the Chairperson and it is stated that they apprehend that they will not get justice from the Chairperson or even the Chief Executive Officer, who is a subordinate of the Chairperson. 8. The said allegations have been denied by the Chairperson in her counter affidavit dated 24.8.2004. 9. A reply affidavit has been filed on behalf of the petitioner in W.P.M.P.Nos.25615 and 25616 of 2004, reiterating the allegations contained in the additional affidavit. 10. During the hearing of the writ petition, a controversy arose between both sides regarding the correctness or otherwise of the statement contained in the impugned order of the Board to the effect that Mr.Narasimhan, learned counsel for the petitioner, during the hearing of the Board, had "agreed that the Mosque would not be demolished". An affidavit had been filed by Mr.A.S.Narasimhan Advocate on 24.6.2004, stating that when the matter was heard by the Board, the petitioners were not inclined and did not agree for the construction of the Mosque. Such a stand would be contrary to the pleadings of the petitioner and evidence. Mr.H.Idayathullah, representing the respondent, who had appeared in the hearing before the Board, had asserted that Mr.Narasimhan did make such a statement during the enquiry and the statement as recorded in the impugned order was correct. A reply affidavit has been filed by the petitioners referring to the contentions in the affidavit filed by in support of the writ petition and a separate reply affidavit has been filed by Heeralal. 11.
A reply affidavit has been filed by the petitioners referring to the contentions in the affidavit filed by in support of the writ petition and a separate reply affidavit has been filed by Heeralal. 11. It was further stated that in the enquiry, the Wakf Board did not examine Mutawallis nor examined the respondents and no documents were filed before the Wakf Board by them in support of the alleged lease. No lease deed was ever produced before the Board. 12. Mr.Santhanagopalan, learned senior counsel appearing for the petitioners, after referring to the salient facts as mentioned above, raised the following contentions: (i) The main dispute regarding the nature of wakf has been concluded by the High Court in favour of the petitioners in the Second Appeal and the wakf has been held to be a private wakf and that the petitioners were hereditary mutawallis. (ii) The party respondents had highhandedly trespassed into the property on 8.3.1993. In terms of the order of this Court in the earlier writ petition, it is the Chief Executive Officer who is the competent authority under Section 54 of the Act and it is not the Board or the Chairman who will be competent to deal with the issues. (iii) Khaleel Basha was not examined by the Board. Rules 17 and 18 of the Wakf Rules of 2000 were not properly complied with. (iv) A lease by one of the trustees will be invalid. (v) A permanent lease as construed by the Wakf Board cannot be a valid lease. (vi) Alleged concession by the counsel is false and even if true, cannot bind the party unless the party had given any written instructions. In support of all his contentions, learned counsel cited several judgments which would be discussed below. 13. Mrs.Hema Sampath appearing for the party-respondents, contended that the character of the Wakf cannot be gone into in a writ petition as well as the validity of the lease which involve disputed questions of fact. Such issues cannot be gone into in writ proceedings. It was open to the petitioners only to approach the civil Court or to approach the Tribunal constituted under the Act for appropriate remedy, if a party is aggrieved by the order of any authority, inclusive of the wakf. The petitioners cannot be permitted to approach the writ Court.
Such issues cannot be gone into in writ proceedings. It was open to the petitioners only to approach the civil Court or to approach the Tribunal constituted under the Act for appropriate remedy, if a party is aggrieved by the order of any authority, inclusive of the wakf. The petitioners cannot be permitted to approach the writ Court. As regards the contention regarding demolition, learned counsel contends that the counsel for the petitioner had conceded the contention of the respondents that the mosque shall not be demolished and hence, the petitioners cannot be heard to make any submission to the contrary. 14. Learned counsel, after referring to the definition of wakf under the Act contended that the Wakf- Alal-Aulad will be a wakf under the Act only to the extent to which the property was dedicated for religious cause. Once it was held that there is some property which has been dedicated for religious and charitable purposes, it would be necessary for the Court to determine the extent of such dedication based on the evidence. The Court has to determine the extent to which the properties have been dedicated for religious purposes. Such issues can be gone into and be decided only in a suit and hence, relief can be obtained by the petitioner only by filing a suit and not by invoking the powers under Section 54 of the Act. 15. Reliance was placed on the following judgments in support of the said contentions: (i) V.MOHAMED MAHIN Vs. THE MADRAS STATE WAKF BOARD ( 1967 (1) MLJ 65 ); (ii) The said judgment was confirmed by the Division Bench in MADRAS CITY WAKF BOARD V. MOHAMED MAHIM (1984 L.W. 61); and (iii) TAMIL NADU WAKF BOARD Vs. M.E.MUSUEE AND OTHERS (AIR 1979 Madras 231). 16. Mr.Kaizer, appearing for the Wakf Board, had contended that the attitude of the petitioner in making allegations against the Chairman of the Wakf Board was not at all proper. Allegations of bias or partisan attitude against the Chairman was unwarranted. Learned counsel referred to the judgment in U.P. SUNNI CENTRAL WAKF BOARD Vs. HASAN JEHAN (AIR 1993 Allahabad 18) in support of his contention that the Wakf-Alal-Aulad would come under the control of the Wakf Board, only to the extent of its religious and charitable purposes. 17.
Allegations of bias or partisan attitude against the Chairman was unwarranted. Learned counsel referred to the judgment in U.P. SUNNI CENTRAL WAKF BOARD Vs. HASAN JEHAN (AIR 1993 Allahabad 18) in support of his contention that the Wakf-Alal-Aulad would come under the control of the Wakf Board, only to the extent of its religious and charitable purposes. 17. Per contra, Mr.Santhanagopalan, in reply, referred to the factual materials and also the provisions under the Act to show that the expression "wakf" would include the Wakf-Alal-Aulad. The petitioner wakf is a registered private wakf and contributions have been made under Section 72. The Tribunal's jurisdiction under Section 83(2) of the Act will not apply to the case of the petitioner, the dispute being not one of the disputes which have been contemplated under the Act for consideration by the Tribunal. 18. I have considered the submissions of both sides. 19. The pleadings and contentions as above give rise to the following points to be considered: (i) Maintainability of the writ petition; (ii) Jurisdiction of the Board to consider the petition under Section 54 of the Act; (iii) Whether the impugned lease in favour of the respondents is valid and enforceable and whether it creates any permanent tenancy; (iv) Whether there has been any concession by the learned counsel for the petitioner and whether the same is binding on the petitioner. 20. I would take up the validity of the alleged lease first which would, to a large extent, be sufficient to adjudicate the dispute between the parties. 21. Point No.(iii): There there was some challenge to the truth and veracity of the alleged lease deed and that the same was not produced before the Board. We may assume that the lease deed had been executed and signed by one of the mutawallis – Heeralal. I am inclined to hold that the lease deed is invalid due to various reasons as rightly contended on behalf of the petitioner: (a) Admittedly, one of the hereditary mutawallis alone had signed the deed. It has not been signed by the other mutawallis and there is neither pleading nor proof of the other trustees having endorsed or ratified the lease. It is settled proposition in the law of Trusts that any lease or sale of a trust property has to be signed or ratified by all the authorities. In JANAKIRAMA IYER Vs.
It has not been signed by the other mutawallis and there is neither pleading nor proof of the other trustees having endorsed or ratified the lease. It is settled proposition in the law of Trusts that any lease or sale of a trust property has to be signed or ratified by all the authorities. In JANAKIRAMA IYER Vs. NILAKANTA IYER ( AIR 1962 SC 633 , the Supreme Court held that if all the trustees do not join in the execution of the conveyance, the conveyance would be invalid. In IN RE: H.E.H. THE NIZAM'S JEWELLERY TRUST ( AIR 1980 SC 17 ), the Supreme Court held that in the case of a private Trust where there are more trustees than one, all must join in the execution of the Trust. The concurrence of all is necessary in a transaction affecting the Trust property. It was held that in order to bind the Trust estate, the action must be an act of all Trustees. In ABDUL RAHAMAN Vs. ANGUR BALA (AIR 1974 Calcutta 16, learned single Judge of the Calcutta High Court held that in a case of Trust, co-trustees cannot act singly and that the Managing Trustee alone has no power to create a lease without the concurrence of other trustees. In M/s.KARNATAKA TRADER, HUBLI Vs. HIREN SHAMJI (AIR 1987 Karnataka 204), learned single Judge of the Karnataka High Court held that when the property of the Trust was managed by co-trustees, the lease of property by only one of the trustees to the exclusion of the co-trustees would be bad in law and will not convey any right, title or interest to the transferee. (b) The next legal ground on which the lease is questioned is that a permanent lease, as construed by the Board is neither factually correct nor can a permanent lease by a Trust be held to be valid. On facts, it is rather strange that ignoring the actual recitals in the document, the Wakf Board should have come to the conclusion that what was intended to be created was only a permanent lease notwithstanding the period mentioned in the document being restricted to eleven months. For the sake of discussion, it may be assumed that the intention was to create a permanent lease and we have to see whether it is permissible.
For the sake of discussion, it may be assumed that the intention was to create a permanent lease and we have to see whether it is permissible. Permanent lease by Trust had always been held to be invalid, more so in the present case, in view of the specific statutory provision under Section 56 of the Wakf Act, 1995. A lease or sub-lease for any period exceeding three years of any immovable property shall, notwithstanding anything contained in the deed, be void and of no effect. A lease for a period of one year and above not exceeding three years, shall be valid only if approved by the Board. The same was the position in the Wakf Act, 1954 also vide Section 36-F. Therefore, the lease as a permanent lease, is void ab initio and cannot confer any right on the lessee. In HANUMANTHU Vs. KRISHTABRAHMAN (AIR 1927 Madras 829), this Court held that a permanent lease by mutawallis are not valid and such lease will be void as being beyond the ordinary power of mutawallis. (c) On facts also, the lease is not a permanent lease on a simple reading of the lease deed, which is restricted only for a period of eleven months. It is rather unfortunate that the Wakf Board, which should conform to legal limitations should, in an unfair manner, strain itself to favour one of the parties and hold that what was contemplated was only a permanent lease, also ignoring that a permanent lease was void in law. Having come to the conclusion that it was a permanent lease, there was no other alternative for the Board to conclude than that the lease was void and unenforceable. At any rate, the lease cannot be valid or operative beyond the period of eleven months and the so called lessee has no right to continue in possession after the said period of eleven months. 22. Point Nos.1 and 2: The objection to maintainability of the writ petition as raised by the respondents is really two fold. The first objection is that there is an alternate remedy to approach the Tribunal and the second objection is that the Trust being claimed to be a private Trust, the provisions of the Act will not apply.
22. Point Nos.1 and 2: The objection to maintainability of the writ petition as raised by the respondents is really two fold. The first objection is that there is an alternate remedy to approach the Tribunal and the second objection is that the Trust being claimed to be a private Trust, the provisions of the Act will not apply. As regards the first objection, learned counsel for the petitioner contends that an order passed under Section 54 was not appealable before the Tribunal under Section 83(2). According to him, the liberty given to the aggrieved person under Section 53(4) to file a suit before the Tribunal is not available to the mutawalli. I am unable to sustain the said contention that Section 83(2) will not apply. It is true that Section 53(4) would appear to apply only to a third party aggrieved by the order and who claims to possess independent rights over the wakf property but the grievance of a mutawalli may not come strictly under that provision. But Section 83(2) certainly entitles the mutawalli to proceed before the Tribunal. But, in this case, I am inclined to hold that it would be an unnecessary and futile exercise to drive the parties to go before the Tribunal, considering that the impugned order has been passed by the Board, which is not the proper authority to pass an order under Section 54. The proper authority is only the Chief Executive Officer and not the Board. Secondly, on the admitted facts, namely, the lease having been executed only by one of the trustees and the lease being a permanent lease, which is void in law, it would be an unnecessary and empty formality to drive the parties to go before the Tribunal. Parties need not be driven to go before the civil Court or to avail the alternate remedy when on the admitted and undisputed facts, it is seen that the lease is void in law and the lessee, therefore, has no enforceable right. 23. The second objection relating to maintainability which is raised at the instance of the party respondents is that the trust having been held to be a private Trust/Wakf-Alal-Aulad, the provisions of the Act are not applicable. Elaborate submissions were made on the scope of a Wakf-Alal-Aulad being a subject matter of a proceeding under the provisions of the Wakf Act.
The second objection relating to maintainability which is raised at the instance of the party respondents is that the trust having been held to be a private Trust/Wakf-Alal-Aulad, the provisions of the Act are not applicable. Elaborate submissions were made on the scope of a Wakf-Alal-Aulad being a subject matter of a proceeding under the provisions of the Wakf Act. While according to Mrs.Hema Sampath the petitioner cannot seek recourse to the provisions under the Act and that they should approach the civil Court, Mr.Santhanagopalan contends that though the petitioner Dharga is a private wakf, it is registered under the Wakf Act and amenable to the provisions of the Act. Contributions are being made under Section 72 of the Act and the Wakf is registered under Section 5 of the Act. In the case of Wakf-Alal- Aulad, though the Wakf Board would not be entitled to interfere with the administration or management of the wakf, yet, in respect of the religious and charitable functions of the Wakf, the Wakf Board has jurisdiction especially to see to it that the properties of the wakf are free of encroachments as contemplated under Section 53. 24. Having regard to the facts and circumstances of this case, it would be unnecessary to go into the characteristics of a Wakf-Alal-Aulad and the catena of decisions cited by both sides. It is sufficient to state that a Wakf-Alal-Aulad is a wakf within the meaning of the word to the extent to which a property is dedicated to religious and charitable purposes. It could be a simpliciter Trust in favour of the family and descendants alone or may include a dedication for religious and charitable purposes also. Such a composite wakf will be a wakf within the scope of the Act and to the extent of dedication to religious and charitable purposes, the provisions of the Act will apply. The contention that the petitioner wakf is registered with the Wakf Board and is also making contributions under the Act are not disputed by the respondents. It is stated that the wakf has been registered under Section 5 and shown in the proforma as a Dharga. Therefore, it is too late in the day to contend that the provisions of the Act will have no application to the petitioner/wakf. 25. Moreover, in this case, the attitude of the respondents blowing hot and cold cannot at all be appreciated.
Therefore, it is too late in the day to contend that the provisions of the Act will have no application to the petitioner/wakf. 25. Moreover, in this case, the attitude of the respondents blowing hot and cold cannot at all be appreciated. On the one hand, they want to sustain the exercise of power by the Wakf Board and on the other, when it is not convenient for them, they would contend otherwise and seek to drive the petitioners to the civil Court. It is pertinent to bear in mind that the rival Jamath Committee was a party to W.P.No.6440 of 1992 in which, this Court had directed action to be taken under Section 54 of the Act. Mr.Idayathullah Advocate, who is representing the Trust of the respondents, would state in his letter dated 10.4.1999 that the High Court had held that the proper forum to agitate the issue was the Wakf Board. Now all of a sudden, the rival group and their beneficiaries are raising contentions regarding maintainability of the proceedings before the Wakf Board. The attitude of the respondents is not only inconsistent and conflicting but also amounts to abuse of process. Therefore, I am unable to sustain the objections regarding maintainability of the writ petition. 26. Point No.4: An unpleasant feature in this case is that the learned counsel for the petitioner is stated to have conceded that the building put up on the encroached portion need not be demolished. The counsel had filed an affidavit denying any such statement or concession having been made by encroachers and also stating that any such concession will be opposed to the very foundation and pleading by his party. To the contra, an affidavit is filed by Mr.Idayathullah denying the contention of the learned counsel for the petitioner. It is not necessary to go into the said unpleasant allegations and counter allegations. The fact remains that no counsel can concede any legal issue or even factual issue which will have an impact on the basic legal issue and such concession can have no value at all. When the lease itself is found to be legally void and unenforceable, the concession of the counsel cannot give life to it.
The fact remains that no counsel can concede any legal issue or even factual issue which will have an impact on the basic legal issue and such concession can have no value at all. When the lease itself is found to be legally void and unenforceable, the concession of the counsel cannot give life to it. Rights of parties cannot be dealt with so lightly in the absence of written instructions by the party, considering that the petitioners are determined to stand by and to stick on to their claims. Casual statements or submissions of the counsel in the course of hearing cannot result in depriving valuable rights of parties more so in the absence of endorsement in writing by the counsel. 27. Apart from the discussion as above, in view of the decision in the Second Appeal by this Court holding that the plaintiff is a private wakf, the main basis on which the Wakf Board had proceeded with in passing the impugned order, namely, that it is a public wakf, the very foundation of the said order is removed. Even apart from the said basic defect, the manner in which the Wakf Board (as it was constituted then) had handled the issue leaves much to be said. Though the lease agreement is specifically intended only for eleven months, the Board chose to interpret the lease as a permanent lease which is highly improper, not only as an appreciation of a factual issue, but also ignoring the specific statutory bar under Section 56 (36-F of the 1954 Act). The said approach of the Board, to say the least, is irresponsible. Wakf Board, which is supposed to be the statutory guardian constituted under the Act to protect the wakf properties, cannot act in a manner which goes against the provisions of the Act, thereby giving a seal of approval to a permanent lease, which is prohibited and held as void under the Act. There appears to be a galore of violations which the Board had chosen to overlook for its own reasons. The contention that the lease was in favour of an unregistered body is also not denied. The Wakf Board cannot be persuaded and pressurised by a group of people, which is not a legal entity in the eye of law and also to uphold the lease which is void. 28.
The contention that the lease was in favour of an unregistered body is also not denied. The Wakf Board cannot be persuaded and pressurised by a group of people, which is not a legal entity in the eye of law and also to uphold the lease which is void. 28. Therefore, for all the aforesaid reasons, I am inclined to hold that the order of the Wakf Board is liable to be set aside. The lease in favour of respondents-2 to 6 are void ab initio and is not enforceable. Respondents-2 to 6 are liable to be evicted forthwith. In view of the said findings, no purpose would be served in directing any further enquiry to be conducted. All that is necessary is to direct the Chief Executive Officer to take steps under Section 54(3) of the Act. With the conclusion of S.A.No.641 of 1996 holding that the petitioner Dharga is a private wakf and the lease in favour of respondents-2 to 6 being found to be glaringly void, there are no other issues to be agitated before or to be considered by any other authority. Even assuming that respondents-2 to 6 could claim any right for compensation or value of the superstructure put up by them, such a claim can be only by way of separate proceedings. In these proceedings, it is sufficient to hold that the party respondents are not entitled to remain in possession of the property. It is pertinent to bear in mind that the lease had been objected to at the inception itself. If the respondents had chosen to proceed with the construction in spite of the same and ignoring the pendency of the proceedings, they have to blame themselves. The Court cannot shut its eyes to illegal actions and place the wrong doer at an advantage only due to the fact that a construction had been put up by him unmindful of the consequences. 29. It is also not necessary to go into the issue raised by the petitioner in the additional affidavit objecting to the alleged actions of the present Chairperson. Such allegations are denied by the Chairperson in her counter affidavit. The said issue has nothing to do with the merits of the impugned order which is called in question in this writ petition.
Such allegations are denied by the Chairperson in her counter affidavit. The said issue has nothing to do with the merits of the impugned order which is called in question in this writ petition. Therefore, it is not necessary to deal with the said issue and this Court can only express its hope that the Wakf Board will act strictly according to law, and not create problems at the instance of a group of persons who have no rights, for a private wakf created for the benefit of a family. 30. With the result, the writ petition is allowed and the Chief Executive Officer, Tamil Nadu Wakf Board, is directed to exercise his powers under Section 54(3) of the Wakf Act, 1995, to remove the encroachment and hand over possession of the land and building to the mutawalli, the petitioner, within a period of three months from the date of receipt of a copy of this order. There is no need to comply with the requirement of a further enquiry under Section 54(1) of the Act considering that the said exercise had already been made by the Board and no purpose will be served in directing the Chief Executive Officer, a subordinate officer, to hold an enquiry again. There is also no need for any further enquiry in view of the conclusions as above. 31. Writ petition is allowed subject to the above observations. Connected W.P.M.P.Nos.25615 and 25616 of 2004 are closed. No costs.