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2015 DIGILAW 3165 (MAD)

A. M. S. Shihabuddin v. Tamil Nadu Wakf Board

2015-09-25

R.SUBBIAH

body2015
ORDER : R. Subbiah, J. 1. The Writ Petition has been filed praying for the issuance of a Writ of Mandamus to direct the first respondent herein not to entertain the application of respondents 3 to 7 herein for appointment to the Board of Trustees viz., M.K.N. Trust, Adirampattinam, Thanjavur, during the pendency of enquiry in furtherance of the orders of this Court in W.P.(MD).No. 14160 of 2014 dated 06.11.2014. By the said Writ Petition, one K.S. Sharfudden, sought a direction to consider his representation dated 02.08.2014 and initiate appropriate action against the perpetrators as indicated in the report of the Hon'ble Administrator of the M.K.N. Matharsha Trust, within a specific period of time. The brief facts which are necessary to decide the issue involved in the Writ Petition is as follows: "The petitioner is the resident of Adirampattinam. His great grand father formed a Trust by name M.K.N. Trust and dedicated all his properties by way of two gift deeds executed on 31.05.1905 in favour of the said Trust and the object of the Trust is to administer Madarasa activities and educational institution as per the Scheme. The District Court, Thanjavur, framed a Scheme for the proper administration of the trust, in a suit filed under Section 92 of the Code of Civil procedure in O.S. No. 21 of 1952. Subsequently, the Scheme was amended on 10.03.1954. Thereafter, there were several litigations. While so, in O.S. No. 5 of 1970, a fresh decree was passed on 30.08.1978, which was amended by orders of this Court on 05.08.1997 and the last Scheme framed by the High Court in the aforesaid proceeding is final." 1.1. As per the Trust Deed and Scheme, the Principal District Court, Thanjavur is the Scheme Court for all purposes including the selection of the Board of Trustees. As per the final Scheme of administration, the Board of Trustees are nine in number and out of nine, six hereditary trustees were appointed from three branches, namely, the legal heirs of three brothers of the Founder Trustee and three Public Trustees are also appointed. According to the petitioner, he is eligible to be considered in the second branch of the Board of Trustees. 1.2. According to the petitioner, he is eligible to be considered in the second branch of the Board of Trustees. 1.2. The petitioner further averred in his affidavit that the Hon'ble District Court-cum-Scheme Court in the year 2012 appointed nine Board of Trustees who took immediate charge as trustees which was challenged by way of civil revision petitions by the respondents 3 to 7 contending that after the introduction of Wakf Act 1995, only the first respondent, viz., the Chief Executive Officer Wakf Board is the competent person to appoint the Board of Trustees and not the Scheme Court. It is pertinent to state that respondents 3 to 7 and their forefathers held office for more than 45 years and now the person who got benefit of appointment all these years took a different stand stating that the first respondent herein is the competent person to administer as well as appoint the Board of Trustees. 1.3. However, this Court while disposing of W.P.(MD).No. 15524 of 2012 filed by the petitioner along with Civil Revision Petitions in CRP(PD) Nos. 2461, 2262, 2296, 2567, 2631, 2666/12 and 236 and 73 of 2013 dated 19.06.2014 held that the first respondent is the competent authority for appointing the Board of Trustees and directed the first respondent to commence the selection process to appoint the trustees within a stipulated time. In the meanwhile, the Hon'ble Justice K. Sampath was appointed as Administrator to take care of the day today administration of the Trust and the elected Board of Trustees under the Scheme were removed from the Board of Trustees. 1.4. It is further averred in the affidavit that the respondents 3 to 7 and their forefathers have alienated the properties of the Trust by mismanagement of the Trust in each and every walk of administration including management of the properties, appointments, educational institutions and non-payment of electricity bill of Madarassa. The Hon'ble Administrator appointed by this Court has also found that several properties were alienated in favour of the respondents 3 to 7. However, during the tenure of Administrator, he effectively administered the Trust and the Trust had the benefit of such administration in having several lakhs of rupees as deposits from the properties owned by the Trust. 1.5. After the appointment of the Hon'ble Administrator, several irregularities were unearthed by him. However, during the tenure of Administrator, he effectively administered the Trust and the Trust had the benefit of such administration in having several lakhs of rupees as deposits from the properties owned by the Trust. 1.5. After the appointment of the Hon'ble Administrator, several irregularities were unearthed by him. In this regard, a Writ Petition in W.P.(MD).No. 14160 of 2014 was filed by one K.S. Sharfudeen, wherein a final order was passed on 06.11.2014 by this Court directing the first respondent to conduct a detailed investigation, after giving sufficient notice to the petitioner therein and others concerned with regard to misappropriation of funds and properties of the Trust and the first respondent has received the said communication and now the investigation is going on. Aggrieved by the orders in the said Writ Petition, one of the respondents herein filed an appeal before the Division Bench and sought for grant of leave for filing an appeal which was also rejected by the Division Bench on 03.02.2015. 1.6. From the report of the Hon'ble Administrator it could be seen that there has been misappropriation of funds and fraudulent alienation of properties by respondents 3 to 7. Therefore, it is clear that the respondents 3 to 7 herein are not qualified to be selected as trustees of M.K.N. Trust and they are to be disqualified as per the Scheme, morefully, as per the notification issued by the first respondent on 05.02.2015. But, inspite of the misappropriation of funds and fraudulent alteration of the properties of the trust by the respondents 3 to 7, the first respondent had received applications from respondents 3 to 7. In fact, the first respondent has already been seized of the matter regarding the complaint filed against the respondents 3 to 7. That apart there is also a report from the said Administrator against the respondents 3 to 7 about their misappropriation. Inspite of the same, the first respondent had received applications from the respondents 3 to 7 for appointing them as trustees. 1.7. After knowing that the respondents 3 to 7 have applied for appointment into the Board of Trustees, several objections were made by the villagers themselves who are entitled to make objection as per the Scheme. Inspite of the same, the first respondent had received applications from the respondents 3 to 7 for appointing them as trustees. 1.7. After knowing that the respondents 3 to 7 have applied for appointment into the Board of Trustees, several objections were made by the villagers themselves who are entitled to make objection as per the Scheme. As such, the petitioner also sent an objection on 06.03.2015 requesting the first respondent to disqualify the respondents 3 to 7 from participating in the selection process for the Board of Trustees. The said representation is still pending on the file of the first respondent. The Trust is a public trust and the second respondent is appointed by this Court as an Administrator for the interregnum period, till regular Board of Trustees are appointed. Inspite of the said fact, the first respondent has refused to exercise the jurisdiction and power in rejecting the application of the respondents 3 to 7 herein. In case of considering respondents 3 to 7 as trustees it will be amounting to dereliction of the duties of the first respondent and would lead to screening off all the evidences in order to justify their activities and will further go against the interests of the Trust and its properties. Therefore, the petitioner has come forward with this Writ Petition restraining the first respondent herein from in any way entertaining the applications of the respondents 3 to 7 herein for appointment as Board of Trustees of M.K.N. Trust, Adirampattinam, Thanjavur, pending disposal of the Writ Petition. 2. The first respondent has filed a counter affidavit inter alia stating that the Trust was formed in the year 1905 and subsequently, in the civil proceedings, a Scheme was framed which was finally concluded by the order of the Hon'ble Supreme Court of India on 16.01.1962 and later it was duly amended in the year 1997. The father of the respondents 3 to 7 in the Writ Petition, namely, one S.M.S. Sheik Jalaludeen continuously occupied the post of Secretary to the M.K.N. Trust for more than 45 years and subsequently his sons one way or other held the office. 2.1. In all the earlier proceedings whenever the sons of Mr. The father of the respondents 3 to 7 in the Writ Petition, namely, one S.M.S. Sheik Jalaludeen continuously occupied the post of Secretary to the M.K.N. Trust for more than 45 years and subsequently his sons one way or other held the office. 2.1. In all the earlier proceedings whenever the sons of Mr. Sheik Jalaudeen was appointed as Board of Trustees, it was done only by the Scheme Court (Principal District Court, Thanjavur) while so, in the year 2012, when another person by name Sharfuddin was appointed as the Principal and Secretary of the Board of Trustees of the Trust, by the Scheme Court, the respondents 3 to 7 in the Writ Petition filed civil revision petitions strangely claiming that the appointment and selection of the said Sharfuddin and others were irregular while they previously claimed the benefit of the Scheme Court continuously for long number of years. Hence, it is not proper for the respondents 3 to 7 herein to take a different stand that the Scheme Court has no jurisdiction and only the first respondent is having jurisdiction for appointment of trustees. However, the Division Bench of this Court while disposing of the Writ Petition as well as civil revision petitions by an order, dated 19.06.2014, made in W.P. (MD).No. 15524 of 2012 and CRP(MD) Nos. 2461, 2262, 2296, 2567, 2631, 2666 of 2012 and 236 and 73 of 2013, has held that the selection process should be performed only by the Tamil Nadu Wakf Board and thus directed the first respondent to commence the selection process for appointment of trustees. In the mean while, the Hon'ble Administer Mr. Justice K. Sampath was appointed as an Administrator to look after the affairs of the M.K.N. Trust, the elected Board of Trustees under the Scheme were removed from the Board of Trustees. 2.2. After assuming the office, the Administrator had taken a remarkable and significant step in securing and protecting the properties of the Trust and during the process of administration, he found that there were several acts of mal-feasance. The Hon'ble Administrator was sending periodical reports to this Court about the action taken by him and also findings which are based on records. The Hon'ble Administrator was sending periodical reports to this Court about the action taken by him and also findings which are based on records. The findings would prove that the Trust properties were misappropriated by the said Shiek Jalauddin and his sons who are the respondents 3 to 7 herein and several properties worth several crores were transferred in favour of the trustees in breach of trust. 2.3. In the meanwhile, the Tamil Nadu Wakf Board called for application for appointment of the Board of Trustees. Pursuant to the direction given by the Division Bench of this Court, the respondents 3 to 7 in the Writ Petition have also submitted an application to the first respondent for appointing them as Trustees. As per the Scheme framed by the Civil Court, the applicant who is the debtor who owes a due to the trust on account of the misappropriation of funds along with acts of malfeasance is not qualified to be appointed as a trustee. Infact, the three Division Bench of this Court found adverse report against the father of the respondents 3 to 7 in the earlier round of litigation. Thus, the first respondent sought for the dismissal of the Writ Petition. 3. The Hon'ble Administrator, who is the second respondent has filed a report on the misdeeds done in the M.K.N. Trust. 4. An objection has been filed by third respondent to the report of the Hon'ble Administrator refuting that the report filed by the Administrator suffers from factual errors and mistakes. 5. A memo has been filed by the fourth respondent praying a suitable suo-motu contempt proceedings against the petitioner should be initiated for impleading the second respondent, namely, the Hon'ble Administrator, in the Writ Petition. He has also filed objections to the report of the Hon'ble Administrator stating that said report has to be scrapped as it is bereft of details and without providing an opportunity of hearing to him. 6. Similarly, the seventh respondent has filed a counter affidavit inter alia denying the allegations made against him in the report of the Hon'ble Administrator and prayed for the dismissal of the Writ Petition. 7. The learned counsel for the petitioner submitted that the Trust is formed by the forefathers of the petitioner as well as the private respondents herein with an avowed object. 7. The learned counsel for the petitioner submitted that the Trust is formed by the forefathers of the petitioner as well as the private respondents herein with an avowed object. The said Trust has got lands of about 1500 acres valued several crores of rupees. The income is derived out of the lands owned by the Trust. The Trust has got three branches. As per the present Scheme, two trustees from each branch has to represent the trust but only the members from the private respondents herein have all along been acting as trustees and they are holding the administration of the trust for the past 35 years. The respondents 4 to 7 are the sons of Sheik Jalaudeen. They are not allowing the other branches to appoint them as trustees. In the instant case, the legal heirs of other branches are not properly represented which resulted in misappropriating huge amounts from the funds of the trust by the present Trustees. Infact, on earlier occasion, the appointment of the said Sheik Jalaudeen was challenged by way of Civil Revision Petition. In the said revision petition, this Court has made adverse remarks as against the said Sheik Jalaudeen. Similarly, in the year 2003, another Division Bench of this Court while disposing of the CRPs and A.S. have made some adverse remarks with regard to the conduct of the said Sheik Jalaudeen of the Trust. Though there are adverse findings against the said Sheik Jalaudeen, still only the private respondents herein are continuing in the office. It is the further submission of the learned counsel for the petitioner that by virtue of continuation in the Trust for several years by not allowing the members from other two branches to be appointed as trustees, the respondents 3 to 7 have misappropriated the funds of the trust. For the first time, in the year 2012, one K.S. Sharfudeen, was appointed as a trustee, but he does not belong to the branch of the said Sheik Jalaudeen. However, at a later point of time, his appointment was set aside by the Division Bench of this Court stating that only the first respondent is the fit person to appoint the trustee as per the provisions of the Wakf Act, 1995. However, at a later point of time, his appointment was set aside by the Division Bench of this Court stating that only the first respondent is the fit person to appoint the trustee as per the provisions of the Wakf Act, 1995. In the meanwhile, the Hon'ble Administrator Justice K. Sampath was appointed as an Administrator to administer the trust, who unearthed various irregularities done by the respondents 3 to 7 in the trust. When the misappropriation of funds of trust done by the respondents 3 to 7 came to light the said K.S. Sharfudden filed a Writ Petition in W.P.(MD). No. 14160 of 2014 for a direction to the first respondent to consider his representation given as against the respondents 3 to 7. This Court by order dated 06.11.2014 has given a direction to dispose of the representation given by the said K.S. Sharfudden within a period of eight weeks from the date of receipt of the copy of this order. The first respondent is duty bound to consider the complaint given by the said K.S. Sharfudden pursuant to the direction given by this Court. Per contra, the first respondent had received the applications from the respondents 3 to 7 for appointing them as trustees to the Trust. When there is an adverse finding against the said Sheik Jalaudeen and the report filed by the Administrator appointed by this Court is also against the respondents 3 to 7, the first respondent ought not to have received applications from respondents 3 to R.7. Pending enquiry, pursuant to the direction given by this Court on 06.11.2014, a direction may be given to the first respondent not to entertain the application of the respondents 3 to 7 for appointment of Board of Trustees. 8. The learned Standing Counsel appearing for the first respondent submitted that this Court has already directed the first respondent in W.P.(MD).No. 14160 of 2014 to conduct an enquiry on the representation made by the petitioner therein, namely, K.S. Sharfudden and the said order is passed without going into the merits of the claim of the said representation dated 02.08.2014. Therefore, the petitioner cannot now object for receiving the applications from the private respondents. 9. Mr. Therefore, the petitioner cannot now object for receiving the applications from the private respondents. 9. Mr. Ajmalkhan, learned Senior Counsel appearing for the fifth respondent submitted that when the Scheme framed by the first respondent itself prescribed qualification for a person to be appointed as a trustee, there is no need for the first respondent to give a specific direction to him not to receive applications from the respondents 3 to 7. Thus, he sought for the dismissal of the Writ Petition. 10. Keeping the submissions made on either side, I have carefully paid my attention and perused the materials available on record. 11. It is seen that as early as in the year 1970, the Scheme Court, Thanjavur has framed a Scheme by appointing the trustees. Totally there are six hereditary trustees. Out of which, two trustees from each of the three branches are to be represented in the trust. It is the grievance of the petitioner that for the past 35 years by not allowing the other two branches the private respondents herein alone are continuing the trusteeship and misappropriating the funds of the Trust. Now, the task of appointment of trustee was given to the first respondent, namely, the Tamil Nadu Wakf Board. According to the submission of the learned counsel for the petitioner that in the earlier round of litigation two Division Benches of this Court had made an adverse remark against the respondents 3 to 7. In the report of the Administrator also, it has been stated that several crores of properties have been misappropriated by the private respondents herein. Thus, the learned counsel for the petitioner submitted that considering the entire factual aspects, in a given situation, the application of the respondents 3 to 7 for appointing them as board of trustees in the trust should not be accepted by the first respondent. Thus, he sought for a direction from this Court to the first respondent not to receive the applications from the respondents 3 to 7 for appointing them as trustees. 11.1. But, I find that already the Division Bench of this Court while disposing of the Writ Petition as well as the Civil Revision Petitions, by an order, dated 19.06.2014, made in W.P.(MD).No. 15524 of 2012 and CRP(MD). Nos. 11.1. But, I find that already the Division Bench of this Court while disposing of the Writ Petition as well as the Civil Revision Petitions, by an order, dated 19.06.2014, made in W.P.(MD).No. 15524 of 2012 and CRP(MD). Nos. 2461, 2262, 2296, 2567, 2631, 2666 of 2012 and 236 and 73 of 2013, has given a direction to the first respondent to appoint the trustees by receiving applications from the respective branches. The said order was passed only in the year 2013. 11.2. If this Court directs the first respondent not to receive application from 3 to 7, then as contended by the learned counsel for the petitioner, it will run contrary to the order made by the Division Bench of this Court. In case, if the petitioner is aggrieved with regard to the receiving of application from any body, he has to get clarification only from the Division Bench. Furthermore, as contended by the learned Senior Counsel appearing for the fifth respondent, already eligibility criteria for a person to be appointed was fixed in the Scheme itself. Hence, it is for the first respondent to decide as to whether he has to receive the application or not, based on the eligibility criteria fixed under the Scheme. 11.3. Under such circumstances, there is no need to give any specific direction, by this Court to the first respondent not to receive application from the respondents 3 to 7. Similarly, there is no need for this Court to give a direction to conduct enquiry on the representation given by K.S. Sharfudeen, since already the learned Single Judge has given a direction to conduct an enquiry on the representation made by the petitioner in the earlier Writ Petition in W.P.(MD) No. 14160 of 2014. Therefore, I do not find any valid reason to give any further direction on this aspect. In view of the above, there is no merit in the contentions of the petitioner and this Writ Petition is liable to be dismissed. Accordingly, it is dismissed. No costs, consequently, connected miscellaneous petitions are dismissed.