Janab S. A. K. Ibrahim v. Chief Executive Officer, Tamil Nadu Wakf Board
2014-08-01
M.JAICHANDREN, R.MAHADEVAN
body2014
DigiLaw.ai
Judgment M. Jaichandren, J. 1. Heard Mr.M.Ajmal Khan, the learned Senior Counsel appearing on behalf of the appellants, Mr.K.K.Senthil, the learned counsel appearing on behalf of the respondents 1 and 2 in the Writ Appeals, in W.A.(MD).Nos.918 and 919 of 2014 and Mr.R.Yasodh Vardhan, the learned Senior Counsel appearing on behalf of the third respondent in the Writ Appeal, in W.A.[MD].No.918 of 2014. 2. Since common issues are arising for the consideration of this Court, both the Writ Appeals are heard together and a Common Judgment is being passed. 3. The above Writ Appeals have been filed against the Common Order passed by the learned Single Judge, dated 06.06.2014, made in W.P.(MD).Nos.1977 and 5424 of 2014. 4. The learned Single Judge, by his order, dated 06.06.2014, had dismissed the said Writ Petitions, in W.P.(MD).Nos.1977 and 5424 of 2014, stating that the petitioners cannot approach this Court, under Article 226 of the Constitution of India, when efficacious alternative remedies are available to them, even if there has been a violation of the principles of natural justice. It had also been held that the Tamil Nadu Wakf Board had taken over the management of the Kazimar Periya Pallivasal wakf, [hereinafter referred to "as the Wakf"], for its better administration, as an interim measure, pending the framing of a scheme. It had been further observed that if the petitioners are aggrieved by the impugned orders passed by the Tamil Nadu Wakf Board, dated 23.10.2013 and 24.01.2014, they could work out their remedies available to them, if any, by way of a revision before the State Government, if so advised. Aggrieved by the said order passed by the learned Single Judge, the petitioners in the Writ Petitions had filed the above Writ Appeals, before this Court. 5. Mr.M.Ajmal Khan, the learned Senior Counsel appearing on behalf of the appellants, had submitted that the learned Single Judge had erred in dismissing the Writ Petitions on the ground of availability of an alternative remedy. The learned Single Judge ought to have seen that the Tamil Nadu Wakf Board had taken over the direct management of the Wakf in violation of the principles of natural justice. Such a view taken by the learned Single Judge, while dismissing the Writ Petitions, is contrary to the settled position of Writ Jurisprudence. 6.
The learned Single Judge ought to have seen that the Tamil Nadu Wakf Board had taken over the direct management of the Wakf in violation of the principles of natural justice. Such a view taken by the learned Single Judge, while dismissing the Writ Petitions, is contrary to the settled position of Writ Jurisprudence. 6. The learned Senior Counsel had further submitted that no notice had been issued to the appellants and no enquiry had been held, before the Tamil Nadu Wakf Board had taken over the direct management of the wakf. The Tamil Nadu Wakf Board had appointed the Executive Officer for the management of the Wakf, without giving an opportunity of hearing to the appellants, in the present Writ Appeals. Even though the impugned orders had been passed by the Tamil Nadu Wakf Board, dated 23.10.2013 and 24.01.2014, invoking Section 38 of the Wakf Act, 1995, [hereinafter referred to as "the Act"], the Tamil Nadu Wakf Board had, in fact, taken direct management of the Wakf in question, as per Section 65 of the Act. 7. The learned Senior Counsel had further submitted that, as the appellants have been administering the Wakf in question, as the 'Haqudars' of the Wakf, for more than 200 years, their rights are protected, under Article 26 of the Constitution of India. As such, it would not be open to the Tamil Nadu Wakf Board to assume charge of the administration of the Wakf, either under Section 38 or under Section 65 of the Act. 8. The learned Senior Counsel had further submitted that the learned Single Judge ought to have appreciated the fact that the Tamil Nadu Wakf Board had passed the impugned orders, solely on the basis of the legal opinion given by the Law Officer of the Wakf Board, when the power exercised by the Wakf Board is a quasi judicial power, exercised under Sections 38 and 65 of the Act. Thus, it is clear that the Tamil Nadu Wakf Board had violated the principles of natural justice, while passing the impugned orders, taking over the administration of the Wakf, without giving an opportunity of hearing to the appellants, who are the interested parties. Further, there are no materials available on record for the Tamil Nadu Wakf Board to come to the conclusion that the Wakf in question has been mismanaged by the appellants.
Further, there are no materials available on record for the Tamil Nadu Wakf Board to come to the conclusion that the Wakf in question has been mismanaged by the appellants. The learned Senior Counsel had relied upon the following decisions, in support of his contentions:- Barium Chemical Ltd. Vs. Company Law Board, reported in AIR 1967 SC 295 , Nasir Ahamed Vs Assistant Custodian General, reported in AIR 1980 SC 1157 , Indian Nut Products Vs. UOI, reported in 1994 (4) SCC 269 , Whirlpool Corpn Vs. Registrar of TM, reported in 1998 (8) SCC 1 , Food Corporation of India Vs. State of Punjab, reported in 2001 (1) SCC 291 , Hindustand Lever VS. DG, reported in 2001 (2) SC 474, Rajesh Maharan Vs. Commissioner of IT, reported in 2002 (257) ITR 577 , Harbanslal Sahnia Vs. IOC, reported in 2003 (1) CTC 187, Bhikhubha Patel Vs. State of Gujarat, reported in 2008 (4) SCC 144 , Mariamma Roy Vs. Indian Bank, reported in 2009 (160 SCC 187, JAC of Airline Pilots Vs. DG, reported in 2011 (5) SCC 435 , UOI Vs. Guwahati Corbon Limited, reported in 2012 (11) SCC 651, Commissioner of Income Tax Vs. Chhabil Dass, reported in 2014 (1) SCC 603 . 9. Mr.R.Yasodh Vardhan, the learned Senior Counsel appearing on behalf of the third respondent in the Writ Appeal, in W.A[MD].No.918 of 2014, had submitted that the orders passed by the Tamil Nadu Wakf Board, taking over the management of the Wakf, is right in law, as the said Wakf had been mismanaged by the 'Haqudars' of the Wakf. The claim of the appellants that they have certain hereditary rights in managing the Wakf cannot be accepted. 10. The learned Senior Counsel had further submitted that earlier, the appellants in the Writ Appeal, in W.A.[MD].No.918 of 2014, had filed a Civil Revision Petition, in C.R.P.[NPD]. [MD].No.491 of 2006, challenging the order, dated 16.06.2006, made in W.A.No.1 of 2006, passed by the Wakf Tribunal [Principal Subordinate Judge], Madurai, confirming the order, dated 10.08.2004, passed by the Tamil Nadu Wakf Board, Chennai. The said Civil Revision Petition had also been dismissed by a learned Single Judge of this Court, by his order, dated 22.02.2007.
[MD].No.491 of 2006, challenging the order, dated 16.06.2006, made in W.A.No.1 of 2006, passed by the Wakf Tribunal [Principal Subordinate Judge], Madurai, confirming the order, dated 10.08.2004, passed by the Tamil Nadu Wakf Board, Chennai. The said Civil Revision Petition had also been dismissed by a learned Single Judge of this Court, by his order, dated 22.02.2007. In such circumstances, it is clear that there is no legal right for the appellants, in the Writ Appeal, in W.A.[MD].No.918 of 2014, to continue to manage the Wakf, pending the framing of a scheme, by the Tamil Nadu Wakf Board. 11. The learned Senior Counsel had further submitted that the Writ Petitions filed by the petitioners are not maintainable, as efficacious alternative remedies have been provided before the appropriate authority concerned, under the provisions of the Act. Therefore, it is for the appellants to agitate their rights, if any, before the Tamil Nadu Wakf Board or before the State Government, either under Section 38 or under Section 65 of the Act. 12. Mr.K.K.Senthil, the learned counsel appearing on behalf of the respondents 1 and 2, in both the Writ Appeals, had submitted that the Writ Petitions filed by the petitioners under Article 226 of the Constitution of India, are not maintainable. He had further submitted that efficacious remedies have been provided for the aggrieved persons to seek their remedies, under the provisions of the Act. The learned counsel had reiterated the legal position that the Writ Petitions are not maintainable, before this Court, in view of the decision of a Division Bench of this Court, in M.Liakath Ali Vs. The Tamil Nadu Wakf Board, reported in 2010 (1) CWC 207 and the decision of the Supreme Court, in Board of Wakf, West Bengal and another Vs. Anis Fatma Begum and another, reported in 2011 (1) CTC 636. 13. In view of the submissions made by the learned Counsels appearing on behalf of the parties concerned, and on a perusal of the records available and in view of the decisions cited supra, we are of the considered view that the learned Single Judge was right in holding that the Writ Petitions, in W.P.(MD).Nos.1977 and 5424 of 2014, are not maintainable, before this Court, under Article 226 of the Constitution of India.
It is noted that effective alternative remedies are provided under Sections 38 and 65 of the Wakf Act, 1995, for the aggrieved persons to seek appropriate reliefs, challenging the impugned orders passed by the Tamil Nadu Wakf Board. There is no doubt that it is for the appellants, in the present Writ Appeals, to substantiate their claims, with regard to their rights in administering the Wakf, as hereditary 'Haqudars', before the appropriate forum. It is clear that the Tamil Nadu Wakf Board is vested with the power to frame a scheme to administer the Wakf, coming under its control. It is a well settled position in law that the aggrieved parties cannot seek their reliefs, before this Court, by invoking the extra-ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, when efficacious alternative remedies are provided to seek the necessary reliefs. 14. In the case on hand, it would be open to the appellants to approach the State Government, under Section 65(2) of the Wakf Act, 1995, challenging the orders passed by the Tamil Nadu Wakf Board, taking over the administration of the Wakf, as an interim measure, subject to the framing of a scheme. In such circumstances, we find it appropriate to dismiss the Writ Appeals, permitting the appellants, in the present Writ Appeals, to approach the State Government, under Section 65(2) of the Wakf Act, 1995, and seek their reliefs, if any. The appellants may approach the State Government, within a period of fifteen days from today. It is made clear that the respondents shall not interfere with the administration of the Wakf, by the 'Haqudars', who have been managing the Wakf, till date, till the appellants approach the State Government, as permitted by this Court, by this Order. It is also made clear that, if the appellants fail to approach the State Government, as permitted by this Court, by this Order, it would be open to the Tamil Nadu Wakf Board to take charge of the administration of the Wakf, in accordance with the procedures established under the provisions of the Wakf Act, 1995. 15. Accordingly, the Writ Appeals stand dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.