IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/08/2002
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
W.P.NO.4566 OF 2001 AND W.P.NO. 7676 OF 2001
and
W.M.P.NoS.6456 & 10907 OF 2001
M. Syed Masood .. Petitioner in WP.4566/01
M. Jainulabdeen .. Petitioner in WP.7676/01
-Vs-
1. Tamil Nadu Wakf Board,
rep. by its Chief Executive
Officer,
No.3, Santhome High Road,
Chennai 4.
2. The Superintendent of Wakfs,
C/o. The Wakf Superintendent,
No.54, High Road, Tirunelveli.
3. The Wakf Inspector,
Kanyakumari,
26/2, Dargah Road,
Thuckalai post-629 175.
4. The Aloor Muslim Samudhaya
Committee, Aloor Village & Post,
Kalkulam Taluk, Kanyakumari Dist.
Pin: 629 801.
Rep. by its Muthavalli. .. Respondents in both WPs.
Petitions filed under Article 226 of the Constitution of India for
the issuance of Writ of Mandamus as stated therein.
For Petitioner : Mr. Vijay Narayan
For Respondents 1-3: Mr.V. Ramesh
For Respondent-4 : Mrs. Hema Sampath
:J U D G M E N T
The facts giving rise to the present writ petitions briefly
stated are as follows : –
Petitioner in these two writ petitions are brothers. It is claimed
that they are members of fourth respondent wakf. In respect of the aforesaid
wakf, in O.S.No.5/1942, a Scheme was framed under which Muthavalli of Aloor
Muslim Samudhaya Committee is required to maintain a Marriage Register known
as Nikah Register and the Muslims who reside in Aloor Village and marry within
the jurisdiction of the Aloor Muslim Samudhaya Committee, are entitled to have
their names entered in the Nikah Register. For the aforesaid purpose, a male
member of the family is required to approach the Jamath to obtain an
application form on payment of contribution and thereupon making endorsement
and certification that the person belongs to Jamath, an extract of the
marriage register is issued. It is stated that such a person is also entitled
to other benefits including the benefit of participation in Muslim functions,
festivals and also have the right in the burial ground.
It appears that a suit has been filed by the fourth respondent against
the petitioner claiming permanent injunction and such suit is being contested
by the petitioner on the ground that the disputed property belongs to the
petitioner and his other family members. While the matter stood thus, the
marriage of the petitioner’s sister was fixed in July, 1999, but the
petitioner’s family came to understand that 4 th respondent was refusing to
accept the donation and produce the Nikah Register for the purpose of entering
the marriage. Thereafter notice was issued to 4th respondent with a copy to
the first respondent, namely, Wakf Board, and the first respondent passed an
order asking the Wakf Inspector, 3 rd respondent, to ensure the production of
Nikha Register on 12.7.1999 . However, since 4th respondent refused to
produce the Nikha Register, the sister of the petitioner filed W.P.No.13105 of
1999 for the issuance of writ of Mandamus directing the respondents 1 to 3 to
enforce the order of the 1st respondent. The aforesaid writ petition was
disposed of with the following observations :-
“ . . The Learned counsel for the fourth respondent contended that
the first respondent has no jurisdiction to issue such directions to th third
respondent and the same will not bind the fourth respondent. When admittedly
the fourth respondent has registered the marriages of the other two sisters of
the petitioner, there cannot be any excuse for the fourth respondent at this
stage to refuse the registration of the petitioner’s mariage. As rightly
contended by the learned counsel for the petitioner that the refusal to
produce the Nikah Register by the fourth respondent is only due to the
pendency of the Civil suit against the petitioner’s brother and this is clear
when the counsel for the fourth respondent represented that the family of the
petitioner squating of the Wakf property and refused to vacate the same and as
such the fourth respondent is not bound to produce the Nikah Register. The
fourth respondent has failed to consider that the property dispute between the
Wakf authorities and the petitioner’s brother is independent and the same
cannot have any bearing with regard to the registration of the marriage of the
petitioner. When the refusal to produce the Nikah Register is a deliberate
one, I am of the view that the fourth respondent has necessarily to be
directed not only to produce the Nikah Register, but also to register the
marriage of the petitioner which is to take place on 22-08-99.
Hence the fourth respondent is hereby directed to carry out the
instructions of the first respondent dated 5-07-99 not only to produce the
Nikah Register but also to register the petitioner’s marriage on 22 nd August,
1999. Issue copy of this order to the respective counsel today and the
counsel for the respondents are directed to receive the same and instruct
their clients to carry out the directions of this court on 22-08-99 without
fail. With the above directions, the writ petition is disposed of.”
Thereafter when the question of the petitioner’s mariage was involved, a
request was made to fourth respondent, but the fourth respondent has refused
to issue application form. Accordingly a request was made to the Wakf
Inspector, third respondent, who after referring to the order of the High
Court in W.P.No.13015 of 1999 which related to the petitioner’s sister,
directed 4th respondent to issue marriage application form and to register the
marriage. However, since 4th respondent refused to act, the petitioner was
forced to file the present writ petition.
2. The connected writ petition has also been filed on similar
assertion by another brother of the petitioner in W.P.No.4566 of 2001.
3. In the counter affidavit filed on behalf of the fourth
respondent it has been indicated that the petitioners are not the original
inhabitants of the village and their father had been appointed by the fourth
respondent to do the work of barber and they are not entitled to be considered
as members of the Jamath. It has been further indicated that no writ of
Mandamus would be maintainable against the fourth respondent, which is not a
public authority. The claim of the petitioners that they were paying
subscriptions, etc., have been denied.
4. In the earlier writ petition filed by the sister, a
specific direction had been given by this Court. The Inspector of Wakf ,
third respondent has merely followed the observation in the earlier decision
and directed 4th respondent to produce the Nikha Register. It is not disputed
that the respondents 1 to 3 were empowered to issue directions to various
wakfs and if any direction is given, the wakf unless successfully challenges
such direction before the competent forum as envisaged under the Wakf Act, is
required to follow such direction.
5. Even though 4th respondent is not a statutory authority
there cannot be any dispute that it is discharging public duty such as
allotting burial ground and recording the marriage in the Nikha Register.
Therefore, the contention of the counsel appearing for the fourth respondent
that no writ would be maintainable cannot be accepted and in appropriate
cases, writ can be issued to enforce the compliance of the provisions
contained in the Act and to enforce compliance of the lawful orders passed by
the Inspector. As a matter of fact in the writ petition filed by the sister
of the present petitioners, such writ had been issued and the present 4th
respondent had complied with such direction without demur.
6. In the present case, the Inspector had issued a direction
which admittedly had not been challenged by 4th respondent. In the absence of
any challenge in the normal course, such order should have been complied with
by the 4th respondent. However, it appears that in the present case, the
question relating to production of Nikha Register has become academic as the
marriage of the petitioner has already taken place and has been recorded in
another place. In view of such subsequent development, it is no longer
necessary to issue direction as prayed for. Both the writ petitions are
accordingly disposed of. There will be no order as to costs. Consequently,
WMP.Nos.6456 and 10 907 of 2001 are closed.
Index : Yes
Internet : Yes
dpk
To
1. Tamil Nadu Wakf Board,
rep. by its Chief Executive
Officer,
No.3, Santhome High Road,
Chennai 4.
2. The Superintendent of Wakfs,
C/o. The Wakf Superintendent,
No.54, High Road, Tirunelveli.
3. The Wakf Inspector,
Kanyakumari,
26/2, Dargah Road,
Thuckalai post-629 175.
4. The Aloor Muslim Samudhaya
Committee, Aloor Village & Post,
Kalkulam Taluk, Kanyakumari Dist.
Pin: 629 801.
Rep. by its Muthavalli.