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2025 DIGILAW 323 (MAD)

A. Abu Thaheer v. Tamil Nadu Waqf Board

2025-01-10

K.KUMARESH BABU

body2025
ORDER : 1. The challenge in the writ petition is to an order made by the first respondent calling upon the petitioner not to refuse permission for burial as the burial ground is public in nature and also not to refuse the grant of death certificate. 2. Heard Mr.M.Mahaboob Athiff, learned counsel for the petitioner, Mr.S.A.Ajmal Khan, learned counsel for the respondents 1 and 2 and Mr.S.Anwar Sameem, learned counsel for the respondents 3 and 4. 3. The learned counsel appearing on behalf of the petitioner would submit that the petitioner Waqf is a notified Waqf under Section 6 of the Waqf Act, 1995. Originally, the Waqfs comprised of a Mosque. After the formation of the Waqf, properties were purchased by the Mosque from the common fund and there is no dedication in respect of the said properties except the Mosque. One of the properties that were purchased by the management adjacent to the Mosque to an extent of 93 cents has been used as a graveyard for the members of the petition mentioned Waqf, who are in payment of subscription. The revenue records in respect of the said property stand in the name of individuals, who are the Office Bearers and not in the name of the Waqf. Therefore, he would submit that the said burial ground cannot be a part of the Waqf for the property of the Waqf as it did not comply with the twin conditions, namely being a dedication to the almighty coupled with the dedication for any purpose considered in Muslim law to be pious, religious and charitable. He would further submit that the burial ground is held by the Management Committee for the benefit of its members, who contribute to the common fund. The members of other Jamath had approached the management of the petitioner Waqf to permit them to bury the dead belonging to their Jamath, which was declined. 4. He would further submit that the burial ground maintained by the petitioner Waqf is itself not sufficient to cater to the needs of its members. A petition was filed by the third respondent Waqf before the first respondent for a direction to the petitioner Waqf to permit the burial of members belonging to all Jamaths in the burial ground belonging to and maintained by the petitioner Waqf. 5. A petition was filed by the third respondent Waqf before the first respondent for a direction to the petitioner Waqf to permit the burial of members belonging to all Jamaths in the burial ground belonging to and maintained by the petitioner Waqf. 5. He would submit that the Board cannot hold an enquiry on such application, as the Board can only resolve the dispute between the members of a particular Waqf and not between two Waqfs. He would submit that based on such representation made by the third respondent, the first respondent had issued a show cause notice on 16.11.2021 calling upon the petitioner to attend the enquiry on 24.11.2021, which was served to the petitioner only on 22.11.2021. The said notice was bereft of material facts. However, the representatives of the petitioner had appeared before the Board on 24.11.2021 and had requested the copies of the complaints and reasonable opportunity to be provided to put forth their case. Without providing the said complaints or reasonable opportunity to the petitioner, the impugned order came to be passed on 29.11.2021 directing the petitioner to permit the use of the burial ground by the persons of all Jamaths and also directing issuance of certificate testifying such burial. This order had been made in violation of right of the petitioner under Article 300A of the Constitution of India 6. He would further submit that the procedure that had been followed by the first respondent is in violation of the law laid down by the Division Bench of this Court in the case of Khathar Sheriff Vs. Tamil State Waqf Board, 99 Law Weekly 1041 and the judgment of the Hon'ble Apex Court in the case of Gorks Security Services Vs. Government NCT of Delhi, 2014 (9) SCC 105 . Therefore, he would submit that the order impugned is primarily in violation of the basic principles of natural justice and is in violation of Article 300A of the Constitution of India, which protects the right of usage of the property by its owner. Hence, he would seek interfere with the order impugned in this writ petition. 7. Countering his arguments, Mr.S.A.Ajmal Khan, learned counsel appearing for the respondents 1 and 2 would submit that the place of burial ground cannot be claimed to be private, that is only to bury the members of a particular Jamath. Hence, he would seek interfere with the order impugned in this writ petition. 7. Countering his arguments, Mr.S.A.Ajmal Khan, learned counsel appearing for the respondents 1 and 2 would submit that the place of burial ground cannot be claimed to be private, that is only to bury the members of a particular Jamath. He would further submit that the petitioner had not added the necessary parties, namely the beneficiaries of the order nor even the persons, at whose instance such an order was passed. The conduct of the petitioner has to be therefore deprecated and only for that reason alone, the writ petition could be dismissed. He would submit that the respondents 3 and 4 have impleaded themselves as party/respondents in this writ petition. 8. The learned counsel appearing on behalf of the respondents 3 and 4 would submit that the writ petition itself is not maintainable, as firstly the petitioner had not challenged the resolution and what had been challenged is only the communication intimating the gist of the resolution and secondly, there is an efficacious alternative remedy available to the petitioner. He would also reiterate the submissions of the learned counsel appearing on behalf of the respondents 1 and 2 that the writ petition should be rejected on the ground of non joinder of necessary parties. 9. He would further submit that the petitioner cannot be said to be an aggrieved person in view of the specific admission made by the petitioner that the burial ground is not in the name of the petitioner Waqf and is in the name of private individuals. He would further submit that the members belonging to the third respondent Jamath were all originally the members of the petitioner Jamath and they had also contributed to the welfare of the petitioner Jamath by paying their subscriptions regularly. Only when there was a change in new management of the petitioner Jamath, the members of the third respondent Jamath were not permitted to even pay their subscriptions. Therefore, they had constructed their own Mosque. In view of the internal feud, the petitioner refused to permit the members of the third respondent Jamath to bury their dead, which had been carried on hitherto and hence, they have to approach the first respondent by making a representation. 10. Therefore, they had constructed their own Mosque. In view of the internal feud, the petitioner refused to permit the members of the third respondent Jamath to bury their dead, which had been carried on hitherto and hence, they have to approach the first respondent by making a representation. 10. Further, he would submit that even though there is no specific or public dedication, the usage of the land as a burial ground for a long time under the management of a Waqf would make the said property to also be an implied dedication to the Waqf. There is no prohibition under the Muslim law that a member of a particular Jamath cannot be buried in a burial ground of another Jamath, even though he is not a member of the Jamath, which maintains the said burial ground. When the burial ground is permitted to be used by the public, then the burial ground becomes a public burial ground, wherein all Mohammedan can bury their dead. 11. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of U.P. Sunni Central Board of Wakfs Vs. Mazhar Hasan and others, (2001) 6 SCC 289 in support of his contention that even though there is not a specific dedication, when the property has been used for dedicated purpose, such property would become a dedicated property for that purpose. He would also rely upon the judgment of this Court in the case of Mohammad Kasam and another Vs. Abdul Gafoor, 1966 ILR 418 , wherein a Division Bench of this Court had held that the burial ground cannot be private, unless it is used for the family members exclusively. Once the public are allowed to be buried, then it ceases to be a private property and the burial ground would have to be only for the benefit of the public. 12. He had also relied upon the judgment of the Hon'ble Apex Court in the case of Syed Mohd Salie Labbai (Dead) Vs. Mohd Hanifa (Dead) by LRs. and others, (1976) 4 SCC 780 to drive home the said contention. Further, a reliance has been placed upon the judgment of the Hon'ble Apex Court in the case of Board of Wakf West Bengal and another Vs. Anis Begum and another, (2010) 14 SCC 588 and the case of Rashid Wali Beg Vs. Mohd Hanifa (Dead) by LRs. and others, (1976) 4 SCC 780 to drive home the said contention. Further, a reliance has been placed upon the judgment of the Hon'ble Apex Court in the case of Board of Wakf West Bengal and another Vs. Anis Begum and another, (2010) 14 SCC 588 and the case of Rashid Wali Beg Vs. Farid Pindari and others, (2022) 4 SCC 414 to submit that when the petitioner raises a dispute that the property does not belong to the Waqf, it is for him to approach the Waqf Tribunal for appropriate relief and not to approach this Court under Article 226 of the Constitution of India. 13. I have considered the rival submissions made by the learned counsel on either side. 14. It is not disputed by the petitioner that the burial ground adjacent to the petitioner Waqf is being used to bury the dead of the petitioner Waqf. Applying the principles laid down by the Hon'ble Division Bench of this Court in the case of Mohammad Kasam and another Vs. Abdul Gafoor, 1966 ILR 418 and the judgment of the Hon’ble Supreme Court in the case of Syed Mohd Salie Labbai (Dead) Vs. Mohd Hanifa (Dead) by LRs. and others, (1976) 4 SCC 780 , when the place had been used as burial ground of the members of the Jamath, then the same is in the nature of a public burial and not used by the members of a particular family. When that be so, the petitioner's claim that the burial ground could only be used by the members of the Jamath cannot be countenanced, as the same would only fall within the nature of a public burial ground as enunciated in the aforesaid judgments. 15. Having come to the conclusion that it is a public burial ground, the petitioner cannot refuse burial of any members of the public belonging to Muhammadians. It is also to be noted that the learned single Judge of this Court in W.P.(MD) No.17424 of 2022, vide order dated 29.09.2023 had expressed anguish over the manner, in which refusal to bury the members belonging to one Jamath in the burial ground belonging to another Jamath and had issued directions to the State Government to carry out legislations in that aspect and in the interregnum had also directed the Waqf Board to make necessary arrangements in the interregnum. 16. 16. I had also occasion to deal similar issue in W.P. (MD) No. 26690 of 2024 (Mohamed Dhaha Vs. The District Collector, Tenkasi District and others) where the family members of the deceased had approached this Court to permit the burial of the dead by kith and kin. It is a very disturbing fact. I had also permitted the burial of a dead person belonging to another Jamath in the burial ground by considering the same as public in nature. In fact, I had held that the members of the Jamath of a particular burial ground cannot also insist upon the rituals to be carried out as per the Jamath, which holds the burial ground. For better appreciation, relevant paragraph is extracted herein below:- “6. Considering the fact that the petitioner's mother had died on 05.11.2024 and that the rituals are not being permitted by the respondents 7 and 8, which is contrary to the directions issued by the Wakf Board, which they are bound, this Court is inclined to issue the following directions: a) The respondents 7 and 8 shall not object the burial of the petitioner's mother, namely Ismail Beevi in the Pettai Kadhar Muhaideem Guthba Pallivasal burial ground. b) The respondents 5 and 6 shall take necessary action against the seventh respondent for not complying with the directions issued by it on 14.02.2024. c) The fourth respondent shall provide police protection, if requested by the petitioner for carrying out the ritual of his deceased mother. d) The fifth respondent shall ensure that no such incidents are reported and shall take appropriate steps to advise the regional officers to enquire into such complaints and take immediate action to redress such grievances.” 17. In such view of the matter, I do not find any illegality or infirmity in the orders passed by the first respondent. In fine, the Writ Petition stands dismissed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is also closed.