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2013 DIGILAW 582 (MAD)

K. Maideen v. A. Bhava Nathar

2013-01-28

G.RAJASURIA

body2013
JUDGMENT 1. This Civil Revision Petition has been filed to get set aside the fair and executable order dated 12.12.2011 passed in W.O.P.No.3 of 2008 by the Wakf Tribunal cum Principal Subordinate Judge, Thiruchirappalli. 2. Heard both sides. 3. A resume of facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus: The respondents 1 and 2 namely A.Bhava Nathar and A.Mohammed Sait in their representative capacity, as though representing the villagers of 23 villages, filed W.O.P.No.3 of 2008 as against the twelve alleged elected representatives of Thathaiyankarpettai village, with the following prayer: "(a) for declaration that the notification issued by the respondents 1 & 2/Wakf Board vide its Proceedings Na.Ka.No.320/Trichy/Va.Ka./2005 dated 24.08.2007 for election of new committee members for Kadhar Oulia Pallivasal and Dharga to be held on 31.8.2007 in the said Pallivasal Premises before the officials of Wakf Board that too among Thathaiyangarpettai village Zamath alone and the election purported to have taken place on 31.8.2007 on the basis of the above impugned notification dated 24.8.2007 is illegal, irregular, invalid, ab initio void and unenforceable and as a consequential relief for a permanent injunction restraining the respondents 1 and 2, their subordinates etc., from either by recognizing or approving the respondents 3 to 11 as the newly elected members of the committee as per election purported to have taken place on 31.8.2007 or by allowing the respondents 3 to 11 to act as the office bearers of Kadhar Oulia Pallivasal and Dharga, Pillathurai, Thathaiyangarpettai, Musiri Taluk, Trichy District." (extracted as such) However, the respondents remained exparte including the Wakf Board. Whereupon, the Court passed the exparte order by simply allowing the W.O.P.No.3 of 2008, after taking evidence on the side of the petitioners. Bhava Nathar, the first petitioner therein, was examined as P.W.1 and Exs.P.1 to P.8 were marked. 4. Being aggrieved by and dissatisfied with the same, the respondents 3 to 6, 8, 9 and 11 in W.O.P.No.3 of 2008, filed this Civil Revision Petition on various grounds. 5. What I could understand and discern from the submissions made by the learned Counsel for the parties and from the perusal of the records, is that there exists one Kadhar Oulia Pallivasal and Dharga, Pillathurai, Thathaiyangarpettai Village, Musiri Taluk, Trichy District. 5. What I could understand and discern from the submissions made by the learned Counsel for the parties and from the perusal of the records, is that there exists one Kadhar Oulia Pallivasal and Dharga, Pillathurai, Thathaiyangarpettai Village, Musiri Taluk, Trichy District. On the one hand, the petitioners in W.O.P.No.3 of 2008, would contend that it is the customary practice that the muslims of 23 villages found set out in the cause title are electing the members of the Managing Committee of the said Dharga. While so, holus-bolus, the Wakf Board attempted to conduct the election only taking into consideration the muslims of the said Thathaiyangarpettai village excluding the other villagers set out supra. Whereupon, the petitioners in the W.O.P.No.3 of 2008, approached this Court for redressal. However, this Court directed the petitioners in W.O.P.No.3 of 2008 to seek redressal before the Wakf Tribunal. Whereupon, the W.O.P.No.3 of 2008 was filed with the aforesaid prayer. 6. The learned Counsel for the petitioners in W.O.P.No.3 of 2008/respondents 1 and 2 herein would advance his arguments that the twelve respondents including the Wakf Board in W.O.P.No.3 of 2008, did choose to remain absent, whereupon they were set exparte. Instead of getting the exparte order set aside, they did choose to file this statutory revision straightaway. In the absence of any counter affidavit as well as rebuttal evidence from the respondents' side in W.O.P.No.3 of 2008, the lower Court was justified in believing the case of the petitioners and in setting aside the alleged election of the respondents 3 to 12 therein as members constituting the Managing Committee of the said Pallivasal/Dharga. Those respondents therein, cannot try to capitalise their own negligence and try to get benefit by filing this Civil Revision Petition. 7. Per contra, in a bid to torpedo and pulverise the arguments on the side of the respondents 1 and 2 herein/the petitioners in W.O.P.No.3 of 2008, the learned Counsel for the revision petitioners/respondents 3 to 6, 8, 9 and 11, would put forth his arguments, the warp and woof of them, would run thus: Absolutely, there is no iota or shred, jot or pint of evidence to demonstrate and display that the muslims of the said 23 villages ever participated in any election for electing the members of the Managing Committee of the said Pallivasal/Dharga. The said Pallivasal/Dharga, obviously and axiomatically, undoubtedly and unchallengably, is found located in Thathaiyankarpettai village and the muslims of that village are interested in that Dharga and among the muslims of that village alone, the members for the Managing Committee of the Pallivasal/Dharga are being selected every three years and this has been the practice all along. The Tamil Nadu Wakf Board appropriately and correctly adhering to such customary practice, gave suitable directions. Whereupon, the election was conducted and the respondents 3 to 12 in W.O.P.No.3 of 2008 were elected as the members of the Managing Committee. While so, the Wakf Tribunal without any reason whatsoever simply set aside the election itself. The Tamil Nadu Wakf Board is the ultimate authority to supervise all Wakfs in Tamil Nadu. While so, without approaching the Wakf Board and getting the remedy, the petitioners in W.O.P.No.3 of 2008 were not justified in simply approaching the Wakf Tribunal without any evidence. Accordingly, he would pray for setting aside the order of the Wakf Tribunal and for dismissing the W.O.P.No.3 of 2008. 8. He would also hasten to add that already three years' period of the office bearers namely the respondents 3 to 12 therein got expired, of course, pendentelite, i.e., pending W.O.P.No.3 of 2008 and in such a case, the order passed by the Wakf Tribunal subsequent to the expiry of the said tenure/period is turned out to be infructuous also. 9. Whereas the learned Counsel for the Wakf Board would pyramid his arguments in paramateria with the arguments advanced by the learned Counsel for the revision petitioners. 10. The points for consideration are: (i) Whether the Wakf Tribunal was justified in passing an exparte order in the absence of any clinching evidence and also without adverting to the factual scenario involved in W.O.P.No.3 of 2008? (ii) Whether there is any illegality or perversity in the order passed by the Wakf Tribunal? Point Nos.(i) and (ii) 11. At the outset itself, I would like to fumigate my mind with the decision of the Honourable Apex Court in Union of India v. Ibrahim Uddin and another reported in 2012 (8) Supreme Court Cases 148 and the decision of the Division Bench of this Court in MeenakshisundaramTextiles v. Valliammal Textiles Ltd., reported in 2011 (3) CTC 168 . 12. At the outset itself, I would like to fumigate my mind with the decision of the Honourable Apex Court in Union of India v. Ibrahim Uddin and another reported in 2012 (8) Supreme Court Cases 148 and the decision of the Division Bench of this Court in MeenakshisundaramTextiles v. Valliammal Textiles Ltd., reported in 2011 (3) CTC 168 . 12. A mere running of the eye over the aforesaid precedents would exemplify and demonstrate that even the exparte orders are expected to be on merits. The exparte order does not mean that the Court has given a carte blanche to decide in whatever way the Court might like to decide the lis. The Court is not implicitly enjoined to accept the version of the petitioner or the plaintiff because no counter affidavit or written statement filed in the proceedings. The Court should delve deep into the matter as though it is a contested one and it has got the power to dismiss even the suits or petitions, if there is no adequate evidence to establish the case of the plaintiff/petitioner. With that in view, if the impugned order is analysed, it is glaringly and obviously, pellucidly and palpably clear that the said order falls foul of the standards found laid down in the aforesaid precedent of the Honourable Apex Court. 13. In this case, at the initial stage, no doubt, the Tamil Nadu Wakf Board issued instructions for conducting the election by taking into account the muslims who are the residents of Thathaiyankarpettai village only. When this Court raised a query to the learned Counsel for the Wakf Board as to whether the Tamil Nadu Wakf Board undertook any broad based roving enquiry to ascertain as to whether for electing the members of the Managing Committee of the said Dharga, only the muslims of that Thathaiyankarpettai village should be taken note of or the muslims residing in all 23 villages should be taken into consideration, for which, in all fairness, the learned Counsel for the Wakf Board would submit that no such enquiry was undertaken and taking into account the customary practice, the Wakf Board issued such direction for conducting the election for electing the members of the Managing Committee from among the muslim residents of that Thathaiyankarpettai village. 14. 14. Similarly, when I posed a question to the learned Counsel for the petitioners in W.O.P.No.3 of 2008, as to whether they are armed with any clinching records to portray and parody, connote and convey that the statistics of the muslim residents of those 23 villages, are found compendiously and concisely in any authentic Register maintained, the learned Counsel for the petitioners in W.O.P.No.3 of 2008, would submit that he is yet to come across such a Register; however, the customary practice is that the muslim residents of 23 villages are the members among whom a few would be elected for constituting the Managing Committee. However, he would hasten to add that Ex.A.1 the report of the Wakf Inspector dated 30.07.2001, would buttress and fortify his stand, for which the learned Counsel for the Wakf Board as well as the learned Counsel for the revision petitioners would submit that it is only a mere report submitted by the Wakf Inspector and it did not emerge after conducting a broad based roving enquiry relating to this matter. 15. While so, a fortiori Ex.A.1 and the versions of the petitioners in W.O.P.No.3 of 2008 would not be sufficient to hold that the election conducted as per the instructions of the Wakf Board for selecting the members of Thathaiyankarpettai village for the Managing Committee of the said Dharga, is erroneous and in the meantime, this Court also cannot lose sight of the fact that the Wakf Board itself is not armed with any clinching records or evidence in one way or the other. 16. My mind is redolent and reminiscent of Sections 32 and 69 of the Wakf Act, 1995. 17. A mere running of the eye over the aforesaid provisions would amply make the point clear that the Wakf Board is vested with plenary powers for administering and also giving directions suitably for smooth running of the wakfs. So far, it appears that the Wakf Board has not undertaken such exercise concerning the said Dharga. 18. The learned Counsel for the Wakf Board would submit that the Wakf Board has got power to formulate a scheme relating to the said Pallivasal/Dharga also and do the needful. 19. I would also like to point out that the Wakf Board has got enormous powers even to appoint interim administrator for the running of the Pallivasal/Dharga, pending election to the Managing Committee. 20. 19. I would also like to point out that the Wakf Board has got enormous powers even to appoint interim administrator for the running of the Pallivasal/Dharga, pending election to the Managing Committee. 20. Not to put too fine a point on it, when that is the present scenario, no purpose would be served by merely setting aside the order of the Wakf Tribunal which is ex facie and prima facie untenable and directing the Wakf Tribunal to conduct a fresh enquiry and pass a reasoned order. Unless relevant materials are available before the Wakf Tribunal, it would be a well-neigh impossibility for the Tribunal to do the needful in this matter appropriately. If any decision is taken by the Wakf Board after conducting a broad based roving enquiry, then it is open for the aggrieved party to challenge it before the Wakf Tribunal, if so advised and where possible. 21. Hence, while setting aside the order of the Wakf Tribunal, I refrain from remitting the matter back to the Wakf Tribunal, but on the other hand, I would like to mandate that the Wakf Board shall exercise its powers adequately as per Sections 32 and 69 of the Wakf Act, 1995 and all other provisions enabling the Wakf Board on this behalf and do the needful as observed supra. Point Nos.(i) and (ii) are answered accordingly. 22. On balance, this Civil Revision Petition is disposed of as above. The Wakf Board shall do well to see that the entire process is carried out within a period of six months from the date of receipt of a copy of this order. Consequently, the connected Miscellaneous Petitions are closed. No costs.