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2023 DIGILAW 312 (MAD)

S. J. Abul Hassan v. Tamil Nadu Wakf Board

2023-01-25

S.SOUNTHAR

body2023
ORDER : PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the order made in O.A.No.21 of 2021, dated 28.02.2022 and made in, on the file of the Tamil Nadu Waqf Tribunal, Chennai. PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the order made in O.A.No.41 of 2021, dated 28.02.2022 and made in, on the file of the Tamil Nadu Waqf Tribunal, Chennai. PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the order made in O.A.No.25 of 2021, dated 28.02.2022 and made in, on the file of the Tamil Nadu Waqf Tribunal, Chennai. These Civil Revision Petitions are filed challenging the order passed by the Wakf Tribunal, dismissing the original application filed by the petitioner, challenging the appointment of respondents 3 to 11 as Trustees of Adirampattinam Madarasatul Salahifi Aththarameel Falahi @ M.K.N. Madarasa Trust, Adirampattinam in CRP.Nos.964 and 1333 of 2022, the order passed by the Tamil Nadu Wakf Board appointing respondents 3 to 11 was challenged before the Wakf Tribunal. 2. In C.R.P.No.1311 of 2022 in addition to the order dated 23.02.2021 passed by the Wakf Baord, the petitioner challenged the order passed by the 12th respondent therein dated 22.02.2021 as confirmed by email dated 01.03.2021. For convenience, parties are referred as per the rank in 3. The Adirampattinam Madarasatul Salahifi Aththarameel Falahi @ M.K.N. Madarasa Trust, Adirampattinam was founded by Khadir Mohideen Marakayar, nearly a century ago and he endowed vast extent of wet and dry land measuring about 1500 acres, with the noble object of providing religious education through Madarasas. The management of the wakf is vested with a committee consisting 9 trustees, of them 6 are hereditary trustees and three trustees are non hereditary trustees. The District Court, Tanjavur framed a scheme for the proper administration of the Wakf in a suit filed under Section 92 of CPC in O.S. No.21 of 1952. The scheme was subsequently amended in the year 1954 and the same was also confirmed by the Apex Court. Subsequently, a fresh scheme decree was passed in O.S.No.6 of 1970 amending the original scheme. As per the scheme decree, the District Court, Thanjavur had been actually nominating the trustees once in three years. 4. The scheme was subsequently amended in the year 1954 and the same was also confirmed by the Apex Court. Subsequently, a fresh scheme decree was passed in O.S.No.6 of 1970 amending the original scheme. As per the scheme decree, the District Court, Thanjavur had been actually nominating the trustees once in three years. 4. After coming into force of new Wakf Act in the year 1995, the power to frame scheme and nominate trustees as per the scheme in respect of the Waqf's in India was vested with the respective Wakf Boards. The provisions of the said Act was challenged before this Court in a Writ Petition W.P(MD).No.15524 of 2012. The said writ petition along with the Civil Revision Petitions challenging the appointment made by the Principal District Judge, Tanjavur, dated 21.09.2012 was considered by this Court and the validity of the statutory provisions vesting the power of appointing Trustees to the Wakf by the State Waqf Boards was upheld. The Division Bench of this Court, while upholding the vires of the Act also set aside the appointments made by the Principal District Judge, Tanjavur and directed Tamil Nadu State Wakf Board to appoint the Trustees. The relevant portion of the order passed by this Court is as follows: “Therefore, while allowing the Civil Revision Petitions, we direct the Tamil Nadu Wakf Board to appoint trustees to the Trust in question, strictly in accordance with the directives, contained in the deeds of trust and also keeping in mind the manner in which the Civil Court had handled the question of appointments in the past. The Wakf Board shall complete the exercise and appoint trustees after giving opportunities to all parties concerned within a period of three months from the date of receipt of a copy of this order. Till then, the shall continue to be in force. No costs.” Thereafter, the appointments were made to the Wakf by the Tamil Nadu State Waqf Board from time to time. 5. As per the scheme, the Board of Trustees consists of nine Trustees, out of which, six trustees shall be hereditary Trustees two from each of three branches in the direct male line of the founder's family and the remaining three Trustees shall be non hereditary Trustees. The tenure of the Board of Trustees shall be three years. 5. As per the scheme, the Board of Trustees consists of nine Trustees, out of which, six trustees shall be hereditary Trustees two from each of three branches in the direct male line of the founder's family and the remaining three Trustees shall be non hereditary Trustees. The tenure of the Board of Trustees shall be three years. On 30.10.2020 Wakf Board invited applications from the eligible candidates for appointment to the Board of Trustees by paper publication in Tamil Daily Dhina Thanthi. As many as 89 candidates applied for appointment to the Trusteeship. It is seen from the records, 16 persons applied from the first branch for two slots available for Trustees from first branch, 14 candidates from second branch applied for two slots representing second branch. 18 candidates from 3rd branch applied for two slots representing 3rd branch. As many as 41 candidates applied for three non hereditary slots. After processing the applications, the second respondent passed impugned order on 23.02.2021, appointing the respondents 3 to 11 as Trustees of Adirampattinam Madarasatul Salahifi Aththarameel Falahi @ M.K.N. Madarasa Trust, Adirampattinam. The respondents 3 to 8 were appointed to the six slots available for hereditary Trustees and respondents 9 to 11 were appointed for three slots available for non hereditary Trustees. Aggrieved by the appointments of respondents 3 to 11 to the Trusteeship, the petitioners who are unsuccessful candidates have come up with these revisions. 6. I have heard the arguments of Mr.V.K.Vijaya Raghavan, representing the counsel for the petitioner in CRP.No.964 of 2022, Mr.V.Raghavachari, representing counsel for the petitioner in CRP.No.1311 of 2022 and Mr.G.Ravisankar, learned counsel appearing for the petitioner in CRP.No.1333 of 2022 and that of Mr.A.R.L.Sundaresan, learned Senior Advocate appearing for 7th respondent, Mr.C.Shankar, learned counsel for first respondent, Mr.A.Mohamed Ismail, learned counsel appearing for respondents 3,8 and 10 and Mr.J.R.K.Bhavanantham, learned counsel for 6th respondent in CRP.No.1311 of 2022. Perused the typed set of papers and other records. 7. Mr.V.K.Vijaya Raghavan, learned counsel appearing for the petitioner in CRP.No.964 of 2022, leading the arguments on behalf of the petitioners submitted that in the appointment order, the inter-se merits of the applicant were not at all considered and the second respondent has not given any reasons for his preference to respondents 3 to 11 over the claim of the petitioners and other unsuccessful applicants. In nutshell, the main contention of the learned counsel is that the appointment order being a non speaking one, is liable to be set aside. 8. The learned counsel by taking this Court to the directions given by the Division Bench of this Court in a judgment passed in W.A.No.1100 of 2015, pointed out that the directions contained therein were not at all complied by the respondents 1 and 2, while passing the appointment order. The learned counsel further by taking this Court to Ex.R23 email communications submitted that the appointment order passed by the second respondent was not approved by a valid and proper resolution and alleged ratification by email under Ex.R23, in the absence of physical meeting of board cannot be treated as a valid resolution. The learned counsel while challenging impugned order passed by the Wakf Tribunal upholding the order of appointment of respondents 3 to 11 submitted that the reasoning given by the Tribunal that on earlier occasions Trustees were appointed only by way of non speaking order cannot be a ground to uphold the present order passed by the second respondent appointing Trustees without giving any reasons. 9. Mr.G.Ravi Sankar, learned counsel appearing for the petitioner in CRP.No.1333 of 2022 also by taking this Court to the order passed by the Division Bench in the Writ Appeal mentioned above submitted that the appointment order passed by the second respondent impugned before the tribunal failed to follow the directions of this Court and consequently, liable to be set aside. He also submits that the second respondent while exercising the quasi judiciary function cannot pass a non-speaking order without considering the inter-se merit and appoint the Trustees. 10. Mr.V.Raghavachari, learned counsel appearing for the petitioner in CRP.No.1311 of 2022, while adopting the contentions raised by the other counsel for the petitioners, supplemented the same by saying the first respondent cannot outsource the power of enquiry to the Superintendent of the Wakf. The learned counsel also submitted that in the present case, the first respondent Wakf Board has not applied its mind to the inter-se merit of the candidates applied for Trusteeship and passed a reasoned order for selecting the respondents 3 to 11, overlooking the claim of the petitioners and other unsuccessful applicants. 11. The learned counsel also submitted that in the present case, the first respondent Wakf Board has not applied its mind to the inter-se merit of the candidates applied for Trusteeship and passed a reasoned order for selecting the respondents 3 to 11, overlooking the claim of the petitioners and other unsuccessful applicants. 11. The learned counsel has also drawn the attention of this Court to the order passed by the Division Bench of this Court in Writ Appeal mentioned above, wherein, it was held that the Wakf Board to appoint the Trustees in accordance with the directions and the manner in which the Civil Court had handled it earlier. Therefore, it is the contention of the learned counsel, speaking order, is one of the primary requirements, is to prove the application of mind by the Wakf Board and the same is absent in the present case. 12. Mr.J.R.K.Bavanantham, learned counsel appearing for the 6th respondent in CRP.No.1311 of 2022, who is one of the successful candidates appointed as Trustees by order impugned before the Wakf Tribunal supported the contentions of the revision petitioners. 13. Mr.A.R.L.Sundaresan, learned Senior Counsel appearing for the respondents 7 and 12 in CRP.Nos.964 and 1333 of 2022 and 7th respondent in CRP.No.1311 of 2022 submitted that no person who is disqualified under the scheme can be appointed to the post of Trusteeship. Elaborating the same, the learned Senior Counsel submitted that it is not the case of the revision petitioners that the first respondent Board, while appointing the respondents 3 to 11 to the trusteeship had violated any of the provisions of the scheme. It is also submitted by him that it is not the case of the revision petitioners that the respondents 3 to 11 who were appointed to the trusteeship were disqualified from holding the post of trusteeship. The learned senior counsel by drawing the attention of this Court to evidence of PW.1 namely Dr.Mohammed Aslam submitted that PW.1 himself admitted that there was no educational qualification prescribed for the trustees under the scheme and hence the appointment of respondents 3 to 11 cannot be questioned by the petitioner on the ground of inter-se educational qualification. The learned senior counsel by drawing the attention of this Court to evidence of PW.1 namely Dr.Mohammed Aslam submitted that PW.1 himself admitted that there was no educational qualification prescribed for the trustees under the scheme and hence the appointment of respondents 3 to 11 cannot be questioned by the petitioner on the ground of inter-se educational qualification. The learned Senior Counsel also submitted after conduct of enquiry/interview by the first respondent board members on 12.01.2021 till the date of publication of results by executive order on 26.02.2021, none of the petitioners preferred any complaint regarding alleged irregularity in conducting the enquiry/interview. 14. According to the learned counsel, the failure of the petitioners to question the selection process before the declaration of results would show that they were satisfied with the selection process and once the result came out adverse to them, the petitioners turn around and question the selection process and the same is impermissible in law. The learned Senior Counsel by drawing the attention of this Court Section 17 of Wakf Act submits that the decisions of the Wakf Board shall be taken by majority and hence there is no necessity to pass a reasoned order by considering the interse merits. 15. Mr.C.Shankar, learned counsel appearing for the first respondent submitted that the revision filed under Article 227 of Constitution of India is not maintainable in view of availability of revisional remedy under Section 83(9) of Wakf Act. The learned counsel further submitted that the scope of revisional power under Section 83(9) is much narrow when compared to the power under Article 227 of the Constitution of India. The learned counsel by relying on the judgment of Apex Court in C.A.No.6149 of 2015 in Kirendevi Vs. The Bihar State Sunny Wakf Board submitted that the jurisdiction of the High Court in a revision under Section 83(9) of Wakf Act is restricted only to examine the correctness, legality or proprietary of the findings recorded by the Wakf Tribunal. The learned counsel submitted that in the case on hand the entire selection process has been duly made by the majority decision of the Wakf Board except the fact that there was no speaking order. The learned counsel submitted that in the case on hand the entire selection process has been duly made by the majority decision of the Wakf Board except the fact that there was no speaking order. It is the contention of the learned counsel that passing of speaking order is not at all mandated either in the scheme or in the orders passed by this Court in matters relating to selection of trustees, in respect of the very same Trust. The learned counsel further submitted that actual resolution was passed on 23.02.2021 itself and the emails sent by Chief Executive Officer of the Wakf Board to all the members on 26.02.2021was only an information. The learned counsel also submitted by referring to Section 17 of Wakf Act, if majority of the members concurred with the subject and passed resolution, the same is deemed to be the decision of the board and hence there is no need to pass a speaking order. 16. Mr.Mohamed Ismail, learned counsel appearing for the respondents 3,8 and 10 submitted that there are no guidelines in the scheme to consider the inter-se merit of the candidates and hence there need not be any discussion regarding the inter-se merit of the candidates. He further submitted that an order appointing a trustee to the Trust Board is an administrative function and the same cannot be equated with quasi judicial or judicial function and hence passing a speaking order is not at all necessary. 17. I have considered the submissions made by the learned counsel for either side and perused the typed set of papers and other records. 18. The order impugned before the Tribunal passed by the second respondent dated 23.02.2021 reads that Superintendent of the Wakf, Thanjavur submitted a report regarding the application submitted by 88 candidates apply for the trusteeship. Since two of them died, subsequently, remaining 86 applicants were called for interview by the Board members by 12.01.2021. The order further says the interview was conducted with regard to the age, qualification, General Knowledge, Solvency, Honesty, Experience, Disqualification and Public Relations etc., and the respondents 3 to 11 were appointed as trustees for the Adirampattinam Madarasatul Salahifi Aththarameel Falahi @ M.K.N. Madarasa Trust, Adirampattinam from 23.02.2021 for a period of three years. 19. The order further says the interview was conducted with regard to the age, qualification, General Knowledge, Solvency, Honesty, Experience, Disqualification and Public Relations etc., and the respondents 3 to 11 were appointed as trustees for the Adirampattinam Madarasatul Salahifi Aththarameel Falahi @ M.K.N. Madarasa Trust, Adirampattinam from 23.02.2021 for a period of three years. 19. Perusal of Exs.R20 to R23 namely Agenda, minute book, Attendance Register and email communications make it clear on 12.01.2021 eight out of 11 members of the Wakf Board attended the meeting and on that day, no resolution was passed for appointment of respondents 3 to 11 as trustees for Adirampattinam Madarasatul Salahifi Aththarameel Falahi @ M.K.N. Madarasa Trust, Adirampattinam. The minutes signed by the second respondent only says on 12.01.2021, the candidates, who appeared before the Wakf Board were interviewed and the submissions made by their counsel were heard and the appointment of the trustees was deferred. The Minutes of the meeting dated 17.02.2021 would make it clear on that day, 9 out of 11 members attended the meeting and no resolution was passed regarding appointment of trustees to the Adirampattinam Madarasatul Salahifi Aththarameel Falahi @ M.K.N. Madarasa Trust, Adirampattinam. It would further make it clear that the dates for conducting next meeting for the Wakf Board was fixed on 2/3.2.2021 as evidenced by Ex.R22. 20. On 23.02.2021, the order impugned before the Tribunal was passed by the second respondent. However, no resolution passed by the first respondent board was produced before the Court. A perusal of Ex.R23 email communications of the official email of the Tamil Nadu Wakf Board dated 26.02.2021 would make it clear that the impugned order passed by the second respondent dated 23.02.2021 was submitted to all the members of the Wakf Board through email and it was ratified by majority of the members. The email dated 01.03.2021 sent from official email I.D of Tamil Nadu State Wakf Board to all its members at 03.50 p.m., would make it clear a resolution was passed on 26.02.2021. Obviously, it is only based on email communications sent by various members of the Board. Therefore, it is abundantly clear that on 26.02.2022, there was no physical board meeting and no resolution was passed by majority of members. It is also pertinent to note that the order impugned before the Tribunal dated 23.02.2021 was passed by the second respondent, even without any board resolution. Therefore, it is abundantly clear that on 26.02.2022, there was no physical board meeting and no resolution was passed by majority of members. It is also pertinent to note that the order impugned before the Tribunal dated 23.02.2021 was passed by the second respondent, even without any board resolution. However, the concurrence of majority of the members was obtained for the same by email communications dated 26.02.2022 yet it cannot be treated as a resolution passed under Section 17 of Wakf Act. 21. Section 17 of Wakf Act reads as follows: “17. Meetings of the Board.— “(1) The Board shall meet for the transaction of business at such time and places as may be provided by regulations. (2) The Chairperson, or in his absence, any member chosen by the members from amongst themselves shall preside at a meeting of the Board. (3) Subject to the provisions of this Act, all questions which come before any meeting of the Board shall be decided by a majority of votes of the members present, and in the case of equality of votes, the Chairperson or, in his absence any other person presiding shall have a second or casting vote.” The sub Section (1) of Section 17 mandates that Board shall meet for the transaction of the business at such time and the places as may be provided by regulations. The word “places” employed under Section 17(1) of Wakf Act signify physical meeting by all the members in a place for transacting the business of the Wakf Board. No regulation under the Act enabling Wakf Board to conduct meeting by email or in virtual mode is produced before the Court. 22. Sub Section (1) of Section 17 mandates that there shall be a meeting in a place provided as per the regulations. It only leads to a conclusion that there shall be a physical meeting of the members in a prescribed place for transacting business of the Wakf Board. In the absence of such a meeting with other formalities like agenda for the meeting etc, alleged concurrence of the majority of the members through email cannot be treated as a valid resolution by the first respondent board. Further the order of the second respondent appointing trustees was passed on 23.02.2021 and the concurrence of other members was obtained by email on 26.02.2022. Under Section 17, the Wakf Board functions through its resolutions. Further the order of the second respondent appointing trustees was passed on 23.02.2021 and the concurrence of other members was obtained by email on 26.02.2022. Under Section 17, the Wakf Board functions through its resolutions. Therefore, the trustees can be appointed only by a resolution of the first respondent board supported by majority members. The second respondent, namely the Chairman of the board has no independent right to appoint trustees. In other words, the Wakf Board cannot act through individual members of the board and it can act only through the collective resolution passed by the majority of the board members. Hence, the order passed by the second respondent without a valid board resolution is non-est in the eye of law. 23. The Division Bench of this Court in a Judgment made in W.A(MD).No.1100 of 2015, dated 26.11.2015, while considering the appointment of Trustees to the very same Trust by the Wakf Board observed as follows: “25. We have already extracted paragraph 73 of the order passed on 19.06.2014 by the Division Bench of this Court. As per the said order, the Wakf Board shall proceed with the elections. We do not want to burden the Wakf Board with an obligation to publish a fresh advertisement. Since the advertisement has already been issued and also since the applications have already been received from all the three branches, no fresh applications need be entertained. On the applications already made, if objections relating to eligibility or disqualification are made, the Wakf Board shall conduct an enquiry after giving an opportunity of hearing to both objectors as well as the persons whose applications are objected to. Both parties shall produce whatever documents they rely upon to prove 14 their own innocence or other party's guilt. Based upon such documents and the presentation made, the Wakf Board shall decide the disqualification and pass an order appointing the trustees. This exercise shall be completed by the Wakf Board on or before 31.12.2015. If any party does not co-operate in the enquiry, they will forfeit the opportunity to challenge on the ground of violation of principles of natural justice. We also clarify that any decision taken whether accepting the application or rejecting the same on the ground of disqualification will be open to challenge after the Wakf Board passes a final order appointing the trustees. We also clarify that any decision taken whether accepting the application or rejecting the same on the ground of disqualification will be open to challenge after the Wakf Board passes a final order appointing the trustees. All parties having objections about the candidature of others shall submit the same within a period of one week from the date of receipt of a copy of this order.” Therefore, it is clear that the Division Bench of this Court directed the first respondent to conduct an enquiry after giving opportunities to both objectors as well as the persons whose applications are objected to. Both the parties shall be afforded with an opportunity to produce the documents in support of their claim and based on the documents and presentation the Wakf Board shall appoint the Trustrees. It was also clarified in the order that any decision taken by the Wakf Board either accepting or rejecting the claim of the candidates shall be open to challenge after Wakf Board passed an order appointing trustees. 24. Once the order passed by the Wakf Board appointing a person to the trusteeship is open to challenge it means such an order must be a speaking order. It is settled law, giving reasons to the conclusion reached by the authority, whose order is open to challenge in a superior forum, is recognized as a 3rd principle of natural justice. Unless reasons are given in support of the conclusions reached by the authority, the superior authority before whom the conclusions are challenged cannot take a decision, whether the conclusions reached by the original authorities are correct or not. 25. In the case on hand, the second respondent appointed respondents 3 to 11, overlooking the claim for appointment made by the petitioners and other unsuccessful applicants. Unless, the reason for preferring the present appointees as against unsuccessful applicants are recorded in the order by considering the inter-se merit, when the same is challenged in revision, this Court cannot form an opinion as to what prompted second respondent to appoint the respondents 3 to 11 as against the claim of others. Unless, the reason for preferring the present appointees as against unsuccessful applicants are recorded in the order by considering the inter-se merit, when the same is challenged in revision, this Court cannot form an opinion as to what prompted second respondent to appoint the respondents 3 to 11 as against the claim of others. The Division Bench of this Court in the order mentioned above clearly directed the Wakf Board to appoint trustees in accordance with the directions contained under the deed of trust and also keeping in mind the manner in which the Civil Court had handled the question of appointment in the past. 26. Once a direction is given to the first respondent to appoint trustees by keeping in mind the manner in which the Civil Court had handled the question of appointment in the past, it is necessary that brief reasons must be recorded in the order of appointment. An order appointing a person as a trustee by rejecting the claim of other applicants results in civil consequences and hence the order of appointment must be a speaking one. In the case on hand, the order passed by the second respondent is a non speaking order and consequently, the same is liable to be set aside. 27. Therefore, I hold, the order passed by the second respondent dated 23.02.2021 and the consequential executive order in Su.Mu.AANAI.16567/12/AA7, Thanjai, dated 26.02.2021 and email dated 01.03.2021 by Chief Executive Officer of the Wakf are liable to be set aside on two grounds namely for want of valid resolution by first respondent Wakf Board and for want of reasons in support of the conclusions in the order. 28. Accordingly, all Civil Revision Petitions are allowed by setting aside the order dated 28.02.2022 passed by Wakf Tribunal in O.A.Nos.21, 25 and 41/21 and consequently the order of the second respondent appointing the respondents 3 to 11 stands quashed. The first respondent is directed to consider the applications made by all the applicants afresh in the light of the observations made by this court in W.A(MD).No.1100 of 2015. The entire exercise shall be completed by the first respondent within twelve weeks from the date of receipt of a copy of this order. The first respondent is also directed to make arrangement for looking after the day today administration of the Wakf during interregnum period immediately.