BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/09/2010
CORAM
THE HONOURABLE MR. JUSTICE P.JYOTHIMANI
and
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
WRIT APPEAL (MD) No.577 of 2010
and
M.P.(MD)No.1 of 2010
Dr.M.Sahul Hameed ... Appellant
vs.
1.The Chairman,
Tamil Nadu Wakf Board,
No.1, Jaffer Sirang Street,
Vallal Seethakathi Nagar,
Chennai - 600 001.
2.The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Sirang Street,
Vallal Seethakathi Nagar,
Chennai - 600 001.
3.The Superintendent of Wakf,
Wakf Office,
Vellipattinam,
Ramanathapuram.
4.Janab Haji M.Mohammed Sikkandar
5.Janab A.Jiyavudeen
6.Janab V.K.M.A.Mohammed Ibrahim Sha
7.Janab K.Himayoon
8.Janab M.Haja Najimutheen
9.Janab A.Sahul Hameed
10.Janab M.S.Mohammed
Allama Mashriqe
11.Janab M.Sikkardar
12.Janab A.Liyakath Ali ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the order of
this Court dated 11.12.2009 made in W.P.(MD)No.6701 of 2010.
!For appellant ... Mr.M.V.Venkataseshan
^For respondents 1 to 3... Mr.K.K.Senthil
:JUDGMENT
(Judgment of the Court was delivered by P.JYOTHIMANI, J)
The Writ Appeal is directed against the order of the learned single Judge
dated 4.8.2010 passed in W.P.(MD)No.6701 of 2010 by which the learned Judge
while dismissing the Writ Petition has directed the appellant to approach the
Wakf Tribunal for appropriate decision.
2. The issue involved in this case is in respect of Nallur Muslim Mohideen
Andavar Pallivasal Wakf relating to the administration of the properties of the
wakf. It is stated that in respect of the administration of the wakf
properties, there was an adhoc committee constituted in the year 2006 and
thereafter, having found that there had been some irregularities in the
administration, the administration was taken by the wakf itself. However, in
the impugned order passed in 2010, the ad hoc committee came to be appointed
once again constituting the members who were already members in the year 2006 in
the ad hoc committee, against whom certain charges were levelled.
3. It was challenging the adhoc committee, the Writ Petition came to be
filed on the ground that in respect of constituting ad hoc committee, there is
no power available to the Wakf Board. The further contention of the learned
counsel for the appellant is that in the absence of specific provision enabling
the Wakf Tribunal to take up the issues relating to hand over of the wakf
properties, the appropriate forum is the Civil Court.
4. While rejecting the said contention raised by the appellant, the
learned Judge has relied upon a Division Bench Judgment of this Court in Salam
Kahn Vs. The Tamil Nadu Wakf Board, rep. by its Chairman and 5 others [2005(1)
L.W.676] wherein construing the provision of Section 83(2) of the Wakf Act, the
Division Bench has held that the words “any dispute, question or other matter
relating to the wakf or wakf property” are words of very wide connotation, which
includes the administration of the properties and that the constitution of the
ad hoc committee is also coming within the purview of the Wakf and the Wakf
Tribunal alone is the authority to decide the issue.
5. Mr.M.V.Venkataseshan, learned counsel appearing for the appellant would
submit that the crux of the Wakf Act lies under Sections 6 and 7 of the Act and
that wakf has been restricted regarding the wakf property as to whether the
property has been dedicated as wakf property and nature of the wakf property.
He would also refer to the other provisions of the Act, especially Section 51 of
the Act, which speaks about the alienation of the property without the consent
of Wakf Board, and in respect of appointment and removal of mutawalli and in
such cases, any person aggrieved by the decision, appeal is provided to the
Wakf Tribunal. Therefore, according to the learned counsel for the appellant,
the constitution of the adhoc committee does not come any where in respect of
the wakf properties. Therefore, according to him, the proper course available
for this Court is drive the parties to go to the Civil Court since according to
him, Section 85 of the Act does not create bar on civil jurisdiction on the
facts of the case.
7. We are not in agreement with the said contention of the learned counsel
for the appellant. In Salam Kahn Vs. The Tamil Nadu Wakf Board, rep. by its
Chairman and 5 others [2005(1) L.W.676] while construing the term “any dispute
or question or other matters relating to wakf or wakf properties” explained
under Section 83(2) of the Act came to be discussed by the Division Bench and it
was held that the words “any dispute, question or other matters relating to a
Wakf or Wakf property” are the words of very wide connotation. Relevant para of
the judgment reads as follows:-
“Thus, the Wakf Tribunal can decide all disputes, questions or other
matters relating to other matters relating to a Wakf or Wakf Property” are, in
our opinion, words very wide connotation. Any dispuate, question or other
matters whatsover and whatever manner which arises relating to a Wakf or Wakf
property can be decided by the Wakf Tribunal….”
8. Even if the contention of the learned counsel for the appellant is
accepted that Section 83 (2) cannot be applicable, a reference to Section 6(1)
of Act which reads as follows:-
“6. Disputes regarding wakfs – (1) if any question arises whether a
particular property specified as wakf property in the list of wakfs is wakf
property or not or whether a wakf specified in such list is a Shia wakf or Sunni
wakf, the Board or the mutawalli of the wakf or any person interested therein
may institute a suit in a Tribunal for the decision of the question and the
decision of the Tribunal in respect of such matter shall be final. Provided
that no such suit shall be entertained by the Tribunal after the expiry of one
year from the date of the publication of the list of wakfs.”
includes any question relating to the wakf property under the Wakf Act. The
appointment of ad hoc committee can definitely be said to be relating to the
wakf property and there can be no doubt about that. The contention of the
learned counsel for the appellant that the restricted meaning has to be given
for the purpose of deciding about the wakf, in our considered opinion, cannot be
accepted at all. More over, in the facts of the present case, when specific
point is raised about the legality of the constitution of ad hoc committee
including certain persons who are stated to be undesirable, certainly, it is the
Wakf Tribunl, which is the appropriate authority to decide the issue as per the
Wakf Act on appreciation of the entire facts.
9. In such view of the matter, we see no reason to interfere with the
order of the learned single Judge. The Writ Appeal fails and the same is
dismissed. Connected Miscellaneous Petition is closed. No costs.
asvm