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2018 DIGILAW 3405 (MAD)

Md. Faud Badsha Sayeed v. Tamil Nadu Waqf Board, rep. by its Chairman, Chennai

2018-10-01

P.T.ASHA

body2018
ORDER : C.R.P.(PD) No. 2024 of 2011 is filed challenging the order of dismissal of the Original Application No.14 of 2009 filed under Section 83(2) of the Waqf Act, 1995 (hereinafter referred to as the Act) against the Resolution dated 28.07.2009 passed by the 1st respondent and the consequential order of the 2nd respondent dated 26.10.2009 against the removal of the revision petitioner as Mutawalli and taking over the direct management of the Masjid-e-Sayeedia, Chennai. 2. C.R.P.(PD) No. 2173 of 2011 is filed challenging the order of dismissal of the Original Application No.15 of 2009 also filed under Section 83(2) of the Act. 3. When the revisions were taken up, Mr. V. Lakshmi Narayanan, learned counsel appearing on behalf of Board took out a preliminary objection that both the revisions are not maintainable inasmuch as the Original Applications filed by the revision petitioner before the Tribunal was itself not maintainable. Both the Applications filed i.e., O.A.No.14 of 2009 and O.A.No.15 of 2009 contain the same grounds and the same relief. 4. The learned counsel would submit that the order removing the revision petitioner from the post of Mutawalli has been passed under Sections 64 and 64(4) of the Waqf Act, 1995 the remedy that is available to the aggrieved party is to file an appeal against the order of the Tribunal. He would argue that instead of invoking the provisions of Section 64(4) of the Act, the revision petitioner has invoked the provisions of Section 83(2) of the Act. Section 83(2) of the Act deals with dispute, question or other matter relating to the Waqf which can be invoked by a Mutawalli, or a person interested in a Waqf or any other person aggrieved by an order and upon such application being made, the Tribunal is directed to determine the said issue. 5. Section 83(2) of the Act deals with dispute, question or other matter relating to the Waqf which can be invoked by a Mutawalli, or a person interested in a Waqf or any other person aggrieved by an order and upon such application being made, the Tribunal is directed to determine the said issue. 5. The learned counsel would further argue that the revision petitioner has clubbed the order removing him from Mutawalliship and taking over the management of the Waqf by the 1st respondent in a single petition since the relief that is claimed is to set aside the Resolution passed in RC No.9582/08/B2/Chennai by the 1st respondent dated 28.07.2009 and consequential order in Proceedings No.9582/08/B2/Chennai Wakf Board, Chennai by the 2nd respondent dated 26.10.2009 and allow this appeal; grant cost of the revision and such other relief or reliefs as this Hon'ble Court may deem fit in the circumstances of the case and render Justice. 6. In the instant case, the revision petitioner is challenging (a) his removal as Mutawalli which squarely falls within the provisions of Section 64(4) of the Act and any order passed by the Tribunal under Section 64(4) is final; and (b) the taking over of direct management by the Waqf Board under Section 65(1) of the Act for which the remedy is provided under Section 65(2) of the Act. 7. Mr. R. Abdul Mubeen, learned counsel appearing for the revision petitioner would contend that quoting a wrong provision would not render this Court helpless since it is open to this Court to exercise its jurisdiction under Article 227 of the Constitution of India to mould the relief. 8. Heard the submissions of the learned counsel appearing on either side and perused record and the provisions of the Act. 9. A reading of Sections 64, 65 and 83 of the Act would highlight that each of these provisions operates on different spheres. Section 64 deals exclusively with the removal of Mutawalli. Sub Section (1) deals with the grounds on which the Board could remove a Mutawalli. Sub Section (2) deals with the consequences of the removal of a person from the office of the Mutawalli that it shall not affect his personal rights in respect of the Waqf property either as a beneficiary or in any other capacity. Sub Section 3 deals with the procedure prescribed the removal. Sub Section (2) deals with the consequences of the removal of a person from the office of the Mutawalli that it shall not affect his personal rights in respect of the Waqf property either as a beneficiary or in any other capacity. Sub Section 3 deals with the procedure prescribed the removal. Sub Section 4 deals with the remedy available to the Mutawalli so removed. Sub Section 5 talks about the interregnum period pending enquiry. Sub Section 6 contemplates the appointment of a receiver. Sub Section 7 deals with the situation post the removal and handing over of the possession of the property and assets of the Waqf by Muttawalli so removed to the Board. Sub Section 8 deals with his ineligibility for reappointment. 10. Section 65 deals with the assumption of direct management by the Board where, under Sub Section (1) the Board could take over direct management in a situation where there is no suitable person available to be appointed as Mutawalli or where in the interest of the Waqf the Board is of the opinion that filling up the vacancy in the office of Mutawali would not be in the interest of Waqf then for reasons recorded in writing, the Board can assume direct management by Notification in the Official Gazette. Section 65(2) contemplates the remedy that is available in the case of such take over and what is contemplated is an application to the State Government. Sub Section (5) is a stand-alone provision where the powers are given to the Board to take over the administration of the Waqf, if the Board has evidence evident before it to prove that the management of the Waqf has contravened the provisions of the Act. 11. Section 83 talks about the powers of the Tribunal which the State Government by Notification in the Official Gazette constitutes and Sub Section (2) deals with subject matter that would come within the jurisdiction of such Tribunal, which are, the determination of any dispute, question or other matter relating to the Waqf. 12. Taking note of the above provisions, it is clear that against the removal of Mutawalli, it is an appeal that is contemplated to the Tribunal and not an Original Application under Section 83(2) of the Act. 12. Taking note of the above provisions, it is clear that against the removal of Mutawalli, it is an appeal that is contemplated to the Tribunal and not an Original Application under Section 83(2) of the Act. Likewise, as against an order passed under Section 65(1), it is a revision that is contemplated to the State Government and not an Original Application to the Tribunal. 13. When Law prescribes, a particular Act to be done in a particular mode, the same has to be done in that manner and none else. The Hon'ble Supreme Court in the Judgment reported in 2018-3-L.W. 325 [Auto Cars vs. Trimurti Cargo Movers Pvt. Ltd.] has held as follows :- “It is settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner.” 14. In the case on hand, from the above narration, it is clear that the revision petitioner has not followed the procedure contemplated under Sections 64(4) and 65(2) of the Waqf Act, 1995 and consequently, the revision petitions preferred against the order of the Tribunal are not maintainable and liable to be dismissed. In the result, these Civil Revision Petitions are dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.