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2015 DIGILAW 2835 (MAD)

Saibudeen v. Tamil Nadu Wakf Board

2015-08-19

R.SUBBIAH

body2015
ORDER : R. Subbiah, J. 1. This Writ Petition has been filed praying for issuance of a Writ of Certiorari to call for the records relating to the impugned proceedings of the first respondent in item No. 19/14, Na. Ka. No. 17228/2009/A1/K. Kumari, dated 29.01.2014 and the consequential notification made in Lr. Rc. No. 17228/2009/B1/KK dated 31.07.2014 published in Tamil Nadu Government Gazette in No. VI-3(a)/69/2014 dated 06.08.2014 and quash the same. The petitioner is one of the elected Members of the Governing Body of the Uthuman Lebbai Sahib Mosque Trust, Thittuvilai, Kanyakumari District (for short 'the Mosque'). The said Mosque is notified under the Wakf Act 1995 under G.S. No. 95/KK. The properties of the Wakf are administered as per the Scheme framed by the Travancore High Court in A.S. No. 20 of 2011 (55 of 1906) and the Wakf has been administered till date as per the said Scheme and in case of any necessity to alter any of the provisions of the said Scheme, it is done by making an application before the Scheme Court at Nagercoil (1st Additional Subordinate Court at Nagercoil). 2. While so, the election to the said Wakf was held on 13.02.2011, in which, the petitioner and other members were elected as the members of the Governing Body which included the third respondent also. Out of the elected members, the third respondent was appointed as the Muthavalli of the Wakf. However, consequent to his election, as Muthavalli of the Wakf, the third respondent started acting against the interests of the Wakf and also started acting arbitrarily preventing the members of the Wakf from effectively administering a Wakf and also practised discriminatory practices in permitting the beneficiaries of the Wakf from worshipping and using the burial ground. 3. In the meanwhile, the third respondent is said to have preferred an application to the first respondent board on 15.11.2013 seeking alteration of the Scheme framed in A.S. No. 20/1101 (55 of 1906) framed by the Hon'ble Court of Travancore gravely altering the very fundamentals of administration stipulated in the Scheme. It is relevant to note that the said application was preferred without consulting any other Members of the Governing Body. It is relevant to note that the said application was preferred without consulting any other Members of the Governing Body. The fourth respondent, who is personally arrayed as a party in this Writ Petition against whom the petitioner alleged mala fides served as the Chief Executive Officer of the first respondent Board and he is also a Member of the Jamath and is a voter for the election of the governing body too. He is also a close relative of the third respondent. The first respondent Board issued the impugned order by which the existing Schemes in A.S. No. 21 of 1101 (55 of 1906) was fully altered by accepting the Draft Scheme submitted by the third respondent. Before passing the said order accepting the Scheme submitted by the third respondent, no notice was ever issued to the other Members of the Governing Body or the Jamath. Once the Scheme is framed by the Hon'ble High Court of Travancore, all applications thereafter for modification on approval of the elected members are done by the Scheme Court, namely, the First Additional District Court, Nagercoil and the first respondent has no jurisdiction to pass the order impugned in this Writ Petition. However, contrary to the same, the third respondent has filed the application for modification of the Scheme to the first respondent Board, who has also passed the impugned order modifying the Scheme. Further, the impugned order has been passed under Section 32 read with Section 69 of the Wakf Act, whereas, the said provision empowers the first respondent Board only to settle Schemes if no Scheme has already been framed. It does not empower the Wakf Board to alter or modify a Scheme framed by the competent Court. Ultimately, he prayed for the quashing of the impugned order of the first respondent. 4. The third respondent has filed a counter affidavit stating that he was designated as Muthavalli by the elected members. While so, certain malpractices were found to be committed by the petitioner and three other members. Therefore, a General Body Meeting was conducted on 03.03.2013 after giving Statutory Notice to the petitioner, in which, through a Resolution No. 4 of the General Body Meeting dated 03.03.2013, it was unanimously resolved to suspend the Writ Petitioner and three others from the Governing Body for their misbehaviour and misdeeds. Therefore, a General Body Meeting was conducted on 03.03.2013 after giving Statutory Notice to the petitioner, in which, through a Resolution No. 4 of the General Body Meeting dated 03.03.2013, it was unanimously resolved to suspend the Writ Petitioner and three others from the Governing Body for their misbehaviour and misdeeds. Further, with the concurrence of the General Body alone, the Scheme was altered and sent to the first respondent in the capacity of Muthavalli on behalf of the Jamath. Therefore, the petitioner cannot allege that the very Scheme was altered against the interests of the Wakf. Hence, this Writ Petition is not maintainable and liable to be dismissed. 5. This matter was admitted on 01.04.2015 and an order of interim stay was granted on the said date. 6. The learned counsel for the petitioner submitted that the impugned order has been passed without hearing the interested parties and there is no compliance with regard to 32(2)(d) of the Wakf Act of 1995. As per Section 32 and 69 of the Wakf Act of 1995, the Board does not have power to modify a Scheme framed by a competent Civil Court and therefore, the first respondent has no jurisdiction to pass the order. It is pertinent to point out that the Scheme is framed at the instance of the fourth respondent who is the close relative of the third respondent. Therefore, the order of the first respondent has no legs to stand and prayed for quashing of the order impugned in this Writ Petition. 6.1. In support of his contention, he placed reliance upon an unreported judgment of this Court made in Contempt Petition (MD). No. 4 of 2009 in CRP (MD) No. 491 of 2006 and W.P. (MD). Nos. 10056 and 10422 of 2008 dated 22.12.2011. 7. Per Contra, the learned counsel appearing for the first respondent submitted that as against the order impugned in this Writ Petition an effective alternative remedy is available. He garners support from a judgment of this Court reported in Janab S.A.K. Ibrahim and Others v. Chief Executive officer, Tamil Nadu Wakf Board and Others 2014 (2) CWC 104 . 8. The third respondent has reiterated his counter affidavit stating that the impugned order came to be passed only for the better administration of the Mosque. Therefore, he prayed for sustaining the impugned order of the first respondent. 9. 8. The third respondent has reiterated his counter affidavit stating that the impugned order came to be passed only for the better administration of the Mosque. Therefore, he prayed for sustaining the impugned order of the first respondent. 9. I heard the submissions made by the parties concerned and perused the materials available on record. At this juncture, though very many contentions have been raised by the petitioner in this Writ Petition, the petitioner assails the impugned order on the ground that there is total violation of principles of natural justice and before passing the order, no notice was given to him. On the very same subject, this Court has already decided the issue. Thus, it is worthwhile to refer the judgment reported in Janab S.A.K. Ibrahim and Others v. Chief Executive officer, Tamil Nadu Wakf Board and Others (supra), wherein in the penultimate paragraph, this Court has held as follows: "A reading of the above said judgments would show that the petitioners herein cannot straight-away approach this Court under Article 226 of the Constitution of India, when effective alternative remedy is available to them, even if there is violation of principles of natural justice. In the instant case, the Management of the Wakf was taken over by the first respondent only for the better administration of the Wakf as an interim measure, pending the framed of Scheme. Hence absolutely there is no violation of principles of natural justice in passing the impugned order. What that being so, I am of the opinion that the Writ Petition itself is not maintainable. If the petitioners feel aggrieved by the impugned order, they have to work out their remedy by way of Revision before the State Government, if they so desire. (emphasis supplied) 25. For the foregoing reasons, both the Writ Petitions fail and the same are dismissed accordingly. Consequently, connected miscellaneous petitions are closed. No costs." Therefore, the issue on hand is no more res integra. By the said judgment referred to supra, this Court once again emphasises the fact that even if there is violation of principles of natural justice and if the petitioner is aggrieved by the order of the first respondent, the better course of action for the petitioner is to file a Revision before the State Government, if they so desire. In the result, this Writ Petition is liable to be dismissed. Accordingly, it is dismissed. In the result, this Writ Petition is liable to be dismissed. Accordingly, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.