Allowed

Chief Executive Officer v. Syed Peer Shah Mohideen

Madras HC1 Mar 2011WA/2529/2010

Case brief

AI extract

What is this about?

The High Court allowed a writ appeal filed by the Wakf Board against the lower court's quashing of a resolution to take direct control of a Dharga upon the removal of its Muthawalli. The Court held that disputes under the Wakf Act fall within the jurisdiction of the Wakf Tribunal, even without a formal impugned order, allowing the respondent to approach the Tribunal instead.

What did the court decide?

The writ appeal allowed; the impugned order partially setting aside the notification taken over the Dharga is set aside; liberty granted to respondent to file in the Wakf Tribunal

Chief Executive Officer Vs Syed Peer Shah Mohideen — Property and Title | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.03.2011

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CORAM

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THE HONOURABLE MR. JUSTICE D.MURUGESAN AND

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THE HONOURABLE MR.JUSTICE B.RAJENDRAN

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W.A.No.2529 of 2010

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Chief Executive Officer No.1, Jafar Sirang Street Vallal Seethakathinagar Chennai 600 001

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The Superintendent of Wakfs
Vellore Zone
Sainathapuram, Vellore .. Appellants/Respondents
-Vs-

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Syde Peer Shah Mohideen Khadari alias S.P.Shah, Hereditary Muthawalli Hasan Raza Mosque Dharga and Burial Ground Bigh Masanpura, Arcot Vellore District .. Respondent/Petitoner

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Appeal filed under Clause 15 of the Letters Patent against the order dated 21.09.2010 made in W.P.No.19762 of 2010.

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W.P.No.19762 of 2010:

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Petition filed under Article 226 of Constitution of India Writ of Certiorari calling for the records of the 1st respondent viz. the proceedings under Ref. Rc No. 12510/B4/09/VLR dt 29.4.2010 published in TamilnaduGovt. Gazette on 4.8.2010 and quash the same

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For Appellants :: Mr.S.Haja Mohideen Gisthi For Respondent :: Mr.AR.L.Sundaresan Senior Counsel for Mrs.AL.Ganthimathi

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JUDGMENT

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(Judgment of the Court was delivered by D.MURUGESAN, J.)

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This writ appeal concerns about a private wakf known as 'Hasan Raza Mosque Dharga and Burial Ground' situate at Periya Hasanpura, https://hcservices.ecourts.gov.in/hcservices/ Arcot, Vellore District. By the proceedings of the Tamil Nadu Wakf Board dated 29.4.2010, the respondent was removed from his position/charge of mutavalli of the Dharga in question and in

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exercise of the powers under Section 65(1) of the Wakf Act, the Board also resolved to bring the said Dharga under its direct control for a period of one year. Pursuant to the above, the resolution of the Board was also notified in the Tamil Nadu Government Gazette on 4.8.2010. The above proceedings were questioned by the respondent in the writ petition. The learned Judge, having found that as against the order removing the respondent as mutavalli, a provision of appeal is available, did not interfere with that portion of the order. As far as the second portion of the order relating to the taking over of the management of the Dharga by the Board is concerned, the learned Judge found that inasmuch as the provisions of Section 65 of the Wakf Act were not complied with, writ is maintainable and accordingly, entertained the writ petition and set aside the order impugned in the writ petition to that extent. The present writ appeal, at the instance of the Chief Executive Officer and the Superintendent of Wakfs, Vellore Zone, is filed questioning that portion of the order of the learned Judge in interfering with the decision to take over the management of the Dharga.

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We have heard the learned counsel appearing for the appellants and the learned senior counsel appearing for the respondent.

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As far as the second issue relating to the decision of the Board to take over the management of the Dharga in question is concerned, the aggrieved person could very well avail the remedy of approaching the Tribunal constituted under Section 83 of the Wakf Act. That remedy has not been availed in this case. When this is pointed out, the learned senior counsel appearing for the respondent has fairly submitted that if liberty is given to the respondent, certainly, he will avail such a remedy, as the matter has been pending before this Court for quite some time. In our opinion, the question as to whether the Wakf Board has taken over the management of the Dharga by following the provisions of Section 65 of the Wakf Act or not can be very well agitated before the Tribunal, as such dispute also will fall under the purview of the Tribunal, and in that view, the respondent could avail such a remedy, as has been held by this Court in the judgment in Salam Khan v. The Tamil Nadu Wakf Board and others, 2005 (1) L.W. 676. The very same principle has also been held and approved by the Apex Court in the judgment in Board of Wakf, West Bengal v. Anis Fathma Begum and another, (2010) 12 Scale 323 = (2010) 4 KLT 765 and particularly, in paragraph-16 of that judgment, the Apex Court has held as follows:-

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"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/she 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 https://hcservices.ecourts.gov.in/hcservices/ 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.

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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 indicates."

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In view of the above, the writ appeal is allowed and the impugned order is set aside only to the extent where the learned Judge has set aside that portion of the order and the notification, whereby the Wakf Board has brought the Dharga in question under its direct control. The respondent is at liberty to approach the Tribunal questioning that portion of the order and the notification as well. As the respondent had approached this Court with the writ petition, we permit the respondent to approach the Tribunal on or before 15.03.2011. In the event such an application is filed questioning the order and the notification of the Board to bring the Dharga under its direct control, the same shall be entertained by the Tribunal without raising the question of maintainability and decide the same on its own merits keeping in mind the provisions of Section 65 of the Wakf Act also. Consequently, M.P.No.1 of 2010 and M.P.No.1 of 2011 are closed. No costs.

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Sd/
Asst.Registrar
/true copy/
Sub Asst.Registrar
ss

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