IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31/01/2005
CORAM
THE HON'BLE MR.MARKANDEY KATJU, CHIEF JUSTICE
and
THE HON'BLE MR.JUSTICE D.MURUGESAN
W.A.No.2344 of 2000
and
W.P.Nos.12710 & 15945 of 2000
I.Salam Khan ..Appellant.
-Vs-
1. The Tamil Nadu Wakf Board,
rep. by its Chairman,
3, Santhome High Road,
Chennai - 4.
2. The Chief Executive Officer,
The Tamil Nadu Wakf Board,
3, Santhome High Road,
Chennai - 4.
3. The Superintendent of Wakfs,
Salem.
4. M.Shaik Hyder
5. D.P.Shaukat Khan
6. D.I. Fayaz Khan ..Respondents
PRAYER: Appeal under Clause 15 of the Letters Patent against the
order of this Court in W.P.No.16134 of 2000 dated
25.09.2000, as stated therein.
!For Appellant :: Mr.G.Masilamani, Senior Counsel
for Mr.Md.Habeed Raja
^For Respondent 1 to 3 :: Mr.Munisuddin Sheriff
For Respondent - 4 :: Mr.AR.L.Sundaresan
For Respondent - 5 :: Mr.Md.Ashfaq Rafi
For Respondent - 6 :: Mr.M.Kalyanasundaram,
Senior Counsel for Mr.G.Sethuraman
W.P.Nos.12710 of 2000 & 15945 of 2000
M.Sheik Hyder ..Petitioner in both the W.Ps.
-Vs-
1. The Government of Tamil Nadu,
rep. by its Secretary,
Home Department,
Fort St.George,
Chennai - 9.
2. The Superintendent of Police,
Dharmapuri District.
3. The Deputy Superintendent of Police,
Dharmapuri District.
4. The Inspector of Police,
Dhenkanikottai Police Station,
Dhenkanikottai. ..Respondents in
W.P.12710/2000
5. The Tamil Nadu Wakf Board,
rep. by its Chief Executive Officer/Secretary.
3, Santhome High Road,
Chennai - 4.
6. D.P.Sowkath Khan ..Respondents in W.P.15945/2000
For Petitioner :: Mr.S.B.Fazluddin
For Respondents in W.P.12710/00 :: Mr.P.S. Sivashanmugasundaram,
Addl Government Pleader
For Respondents in W.P.15945/00 :: Mr.Munisuddin Sheriff for R-1
Mr.Ashfaq Rafi for R-2
PRAYER in W.P.No.12710/2000 : Petition filed under Article 226 of the
Constitution of India praying for the issuance of a writ of mandamus, as
stated therein.
PRAYER in W.P.No.15945/2000 : Petition filed under Article 226 of the
Constitution of India for the issuance of a writ of certiorarified mandamus,
as stated therein.
:J U D G M E N T
(The Judgment of the Court was delivered by The Hon’ble The Chief Justice)
This writ appeal has been filed against the impugned judgment of the
learned single Judge dated 25.09.2000. We have heard the learned counsel for
the parties and have carefully perused the impugned order. The dispute in
this case relates to a wakf.
2. In our opinion, all matters pertaining to Wakfs should be filed in
the first instance before the Wakf Tribunal constituted under Section 83 of
the Wakf Act, 1995 and should not be entertained by this Court straight away
under Article 226 of the Constitution of India.
3. It may be mentioned that the Wakf Act, 1995 is a recent
parliamentary statute which has constituted a special Tribunal for deciding
disputes relating to Wakfs. The obvious purpose of constituting such a
Tribunal was that a lot of petitions relating to Wakfs were being filed in the
Courts in India and they were occupying a lot of time of all the Courts in the
country, which resulted in increase in pendency of cases in the Courts.
Hence, a special Tribunal has been constituted for deciding such matters.
4. Section 83(1) of the Wakf Act, 1995 states,
“83. Constitution of Tribunals, etc. – (1) The State Government
shall, by notification in the Official Gazette, constitute as many Tribunals
as it may think fit, for the determination of any dispute, question or other
matter relating to a Wakf or Wakf property under this Act and define the local
limits and jurisdiction under this Act of each of such Tribunals.”
5. Section 84 of the Act states,
“84. Tribunal to hold proceedings expeditiously and to furnish to the
parties copies of its decision – Whenever an application is made to a Tribunal
for the determination of any dispute, question or other matter relating to a
Wakf or Wakf property it shall hold its proceedings as expeditiously as
possible and shall as soon as practicable on the conclusion of the hearing of
such matter give its decision in writing and furnish a copy of such decision
to each of the parties to the dispute.”
6. Thus, the Wakf Tribunal can decide all disputes, questions or
other matters relating to a Wakf or Wakf property. The words “any dispute,
question or other matters relating to a Wakf or Wakf property” are, in our
opinion, words of very wide connotation. Any dispute, question or other
matters whatsoever and in whatever manner which arises relating to a Wakf or
Wakf property can be decided by the Wakf Tribunal. The word ‘Wakf’ has been
defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is
found to be a Wakf property as defined in Section 3(r), then any dispute,
question or other matter relating to it should be agitated before the Wakf
Tribunal. It is not proper for this Court to straight away entertain writ
petitions relating to a Wakf or Wakf property when there is a special Tribunal
constituted for this purpose.
7. No doubt, alternative remedy is not an absolute bar to the filing
of writ petitions, but at the same time it is well settled that writ
jurisdiction is discretionary jurisdiction and when there is an alternative
remedy, ordinarily a party must resort to that remedy first before approaching
this court. Entertaining writ petitions straight away without insisting that
a party should first avail of the alternative remedy is an over liberal
approach which has caused immense difficulties to the High Courts in the
country because they have added to the huge arrears. The Courts have already
become overburdened by this over liberal approach instead of following the
settled legal principle that a writ petition should ordinarily be dismissed if
there is an alternative remedy. The High Courts in India are already
tottering and reeling under the burden of massive arrears which have flooded
the dockets of the Court, and such kind of over liberal approach has only
multiplied this problem manifold. If this approach is further continued a
time will surly come when the High Courts will find it impossible to function.
All this has happened because unfortunately some Courts have departed from
well-settled legal principles.
8. Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all
powers of the Civil Court under the Code of Civil Procedure, and hence it has
also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to
grant temporary injunctions and enforce such injunctions. Hence, a
full-fledged remedy is available to any party if there is any dispute,
question or other matter relating to a wakf or wakf property.
9. This Court will now ordinarily stop entertaining writ petitions
directly relating to a wakf and will insist that the party should first
approach the wakf Tribunal as constituted under Section 83 of the Wakf Act,
1995.
10. We may, further, clarify that the party can approach the Wakf Tribunal,
even if no order has been passed under the Act, against which he is aggrieved.
It may be mentioned that Sections 83(1) and 84 of the Act do not confine the
jurisdiction of the Wakf Tribunal to the determination of the correctness or
otherwise of an order passed under the Act. No doubt Section 83(2) refers to
the orders passed under the Act, but, in our opinion, Sections 83(1) and 84 of
the Act are independent provisions, and they do not require an order to be
passed under the Act before invoking the jurisdiction of the Wakf Tribunal.
Hence, it cannot be said that a party can approach the Wakf Tribunal only
against an order passed under the Act. In our opinion, even if no order has
been passed under the Act, the party can approach the Wakf Tribunal for the
determination of any dispute, question or other matters relating to a wakf or
wakf property, as the plain language of Sections 83(1) and 84 indicate. We
are further of the opinion that even if an order has been passed prior to the
commencement of the Wakf Act, 1 995, or a dispute, question or matter has
arisen before the commencement of the said Act, the Wakf Tribunal can
adjudicate such issues or questions or the correctness of such an order,
because the intention of Parliament in enacting Wakf Act, 1995 is that any
dispute or matter pertaining to Wakf should go before the Wakf Tribunal.
11. We may clarify that under the proviso to Section 83(9) of the
Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach
the High Court which can call for the records for satisfying itself as to the
correctness, legality or propriety of the decision of the Tribunal. This
provision makes it clear that the intention of Parliament is that the party
who wishes to raise any dispute or matter relating to a wakf or wakf property
should first approach the Tribunal before approaching this Court.
12. The writ appeal is disposed off. For a period of one month from
today status quo will continue. If any of the parties approaches the Wakf
Tribunal within one month from today the application will be entertained
without raising any objection as to limitation and will be decided
expeditiously thereafter in accordance with law. As already made clear, any
party to the dispute can apply along with an application for interim orders
under Section 84 of the Wakf Act, 1995 for temporary injunction or orders, and
if he does so the same will be decided expeditiously in accordance with law.
We make it clear that after the expiry of one month for which period we have
granted status quo, it is entirely in the discretion of the Tribunal to pass
appropriate interim orders according to its discretion. The connected writ
petitions are disposed off. No costs. Consequently, WAMP Nos.20399/00,
6901/0 4 and WPMP No.23116 of 2000 in W.P.No.15945 of 2000 are closed.
Index:Yes
Internet:Yes
ns/pv
To
1. The Tamil Nadu Wakf Board,
rep. by its Chairman,
3, Santhome High Road,
Chennai – 600 004.
2. The Chief Executive Officer,
The Tamil Nadu Wakf Board,
3, Santhome High Road,
Chennai – 4.
3. The Superintendent of Wakfs Salem,
Salem.
4. The Government of Tamil Nadu
rep. by its Secretary,
Home Department,
Fort.St.George, Chennai – 9.
5. The Superintendent of Police,
Dharmapuri District.
6. The Deputy Superintendent of Police,
Dharmapuri District.
7. The Inspector of Police,
Denkanikottai Police Station,
Dhenkanikottai.