Dismissed

Janab T. Jaheer Hussain, v. the Director

Madras HC14 Aug 2013WP(MD)/1667/2011

Case brief

AI extract

What is this about?

The Madras High Court dismissed a writ petition filed under Article 226 seeking mandamus to the Director Vigilance & Anti Corruption Department to inquire into corruption allegations against the Wakf Board. The Court held the petition was not maintainable as the matter falls within the exclusive jurisdiction of the Wakf Tribunal under the Wakf Act, rendering the writ an abuse of process of law.

What did the court decide?

The writ petition was dismissed with no order as to costs.

Janab T. Jaheer Hussain, Vs the Director — Constitutional and Fundamental Rights | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 14.08.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P.(MD)No.1667 of 2011

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Janab T.Jaheer Hussain ... Petitioner

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vs.

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The Director Vigilance & Anti Corruption Department, Kumaraswamy Raja Salai, Raja Annamalaipuram, Chennai.

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The Tamil Nadu Wakf Board, Rep.by its Principal Secretary, 1,Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai - 600 001. 3. A.Jainulabhudeen 4. T.Raja Mohideen 5. S.Abdul Kadhar Jailani 6. N.Abdul Kalam Asad 7. S.Syed Babu 8. T.Ismail 9. M.Iqbal 10. Raja Mohiddeen 11. T.Mohd Ibrahim 12. M.S.A.Rahamadullah 13. M.Rahim 14. S.Mahbu Jan

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... Respondents

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(R3 to R14 impleaded as per the order of this Court, dated 01.08.2011 in M.P.No.1 of 2011)

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Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus for the relief sought for, as stated in the writ petition.

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For Petitioner ... Mr.N.Karthik Kanna For Respondents ... Mr.R.Velmurugan, GA for R1 Mr.Mahaboob Athif for M/s. Ajmal Associates for R2 Mr.D.Sadiq Rajan for R3 to R14

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ORDER

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This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, directing the first respondent to conduct enquiry on the petitioner's complaint, dated 22.07.2009 in accordance with law and take appropriate action within the stipulated time.

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The copy of the alleged complaint, dated 22.07.2009 is https://hcservices.ecourts.gov.in/hcservices/ available at page numbers 1 to 4 in the typed set of papers. It has been sent in a form of a typed letter, signed by the petitioner to the Director, Vigilance and Anti-corruption Department, Chennai.

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The first respondent has stated in the counter that the petition, dated 22.07.2009 was received by the Director of Vigilance & Anti-corruption, Chennai and on perusal, it revealed that the second respondent is the competent authority to enquire into the matter and hence, it was forwarded to the second respondent on 10.02.2009 for further action. As per the complaint, there was allegation of misappropriation of Wakf Board fund and hence, according to the petitioner, the complaint was forwarded to the second respondent for proper action, according to law.

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The petitioner had sent an application under RTI Act on 09.10.2010, seeking to inform the stage of his petition, for which the first respondent replied that the same had been forwarded to the Wakf Board, the second respondent herein. It is further stated by the second respondent that certain related cases are pending before the Civil Court and the writ petition is also arising out of the alleged misappropriation of funds, belonging to the Wakf Board, hence, the writ petition is not maintainable in law.

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The second respondent in his counter has also specifically stated that the writ petition is not legally maintainable. According to the second respondent, JunmahPudu Mosque, Srivilliputtur, Virudhunagar District is a notified Wakf, bearing No.G.S.No.229/RMD under Central Act, 43/1995 and the Wakf is governed by a scheme Decree framed by the SubJudge, Ramanathapuram in O.S.No.11 of 1938, which has been now transferred to the file of the Sub-Judge, Srivilliputtur. As per the scheme, the administration of the Wakf is governed by a committee comprising of 12 members. The members are elected by muslim residents, aged above 18 years of Srivilliputtur area. Among the said 12 members, 6 shall be of Dakni sect and 6 from the Parimala sect and these two sects shall be elected by separate electorates consisting of Dakni and Parimala jamaths.

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Learned Government Advocate appearing for the first respondent and the learned standing counsel for the Tamil Nadu Wakf Board, the second respondent herein submitted that the writ petition itself is not legally maintainable. According to them, the writ petition is an abuse of process of law and the Court, as there is no infringement of right to the writ petitioner, hence, the same is liable to be dismissed with costs.

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Per contra, learned counsel appearing for the petitioner submitted that the petitioner has sought direction in the nature of writ of mandamus, directing the first respondent or other independent investigation agency to conduct enquiry on the petitioner's complaint, dated 22.07.2009 in accordance with law and to take appropriate action, which could not be construed as an abuse of process of law. The vital legal aspect involved in the writ petition is regarding maintainability of the writ petition filed by the petitioner herein.

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Mr.Mohaboob Athif, appeared for M/s. Ajmal Associates submitted that the petitioner could have approached only the Wakf Board to ventilate his grievance and after exhausting his remedy before the Wakf Board. If he feel aggrieved, he could approach the Wakf Tribunal https://hcservices.ecourts.gov.in/hcservices/ constituted under Section 83 of the Wakf Act, 1995, as the alleged dispute is touching the administration of the wakf.

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It was further contended that in the suit in O.S.No.11 of 1938, there was a scheme decree passed by the Sub-Court, Ramanathapuram. After the bifurcation of Ramanathapuram District, the same was transferred to the file of the Sub-Court, Srivilliputtur, wherein the Interlocutory Application in I.A.No.50 of 2008 was filed by the Srivilliputtur Jumma New Mosque represented by its President A.Jainulabhudeen, seeking an order to restrain the Wakf Board from exercising, supervisory control over the administrative affairs of the "Wakf", except in accordance with the terms and clauses of the scheme decree, dated 26.09.1942 framed in O.S.No.11 of 1938 being uninfluenced by the exparte order, dated 31.03.2000 made in I.A.No.774 of 1997.The said Interlocutory Application was dismissed by the learned Sub-Judge, Srivilliputtur, by his order, dated 05.10.2009. Aggrieved by the same, the said Wakf committee represented by its President, A.Jainulabuddin filed appeal in C.M.A.No.13 of 2009 on the file of District Court, Srivilliputtur. In the said appeal, the said Wakf committee filed I.A.No.442 of 2009 and obtained interim stay against the order passed by the learned Sub-Judge in I.A.No.50 of 2008 in O.S.No.11 of 1938. The Wakf Board has filed its counter and the said C.M.A.No.13 of 2009 is pending disposal on the file of the District Court, Virudhunagar District at Srivilliputtur.

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In the aforesaid circumstances, when the matter is pending before the Civil Court, the petitioner cannot file the writ petition with an unsustainable vague prayer, seeking direction against the Director, Vigilance and Anti-corruption Department, Chennai, the first respondent herein. The first respondent is not a competent authority to decide the dispute and the dispute is pending before the Court below, hence, it has to be construed only as an abuse of process of law. However, rightly, the first respondent has forwarded the complaint to the second respondent, the competent authority as per the Wakf Act.

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It is not in dispute that the petitioner herein had filed writ petition in W.P.No.18239 of 2009 before this Court for holding of election to the said Wakf and by order, dated 09.11.2009, this Court was pleased to pass the order as follows :

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"In view of the above submission of the learned counsel appearing for the respondent, the respondent is directed to conduct election and announce the results within a period of four months from the date of receipt of copy of this order subject to the condition that no orders restraining the respondent from conducting any election has been passed by any forum."

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In support of the contention, that the writ petition is not maintainable, learned counsel appearing for the second respondent cited the following decisions rendered by the Hon'ble Apex Court and this Court:

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Board of Wakf, West Bengal v. Anis Fatma Begum, 2011 (1) CTC

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636

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Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768

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https://hcservices.ecourts.gov.in/hcservices/ 3. Haji T.Azeezur Rahman Rowther v. The Additional Secretary, Department of Housing

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M.Liakath Ali v. The Tamil Nadu Wakf Board, 2010 (1) CWC 207

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Mukram Sherif v. Moinudeen Sheriff & another, 2005-2-LW 615

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Alliraj Gounder v. The Inspector of Police, 2005 (3) CTC 673

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In Board of Wakf, West Bengal v. Anis Fatma Begum, reported in

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2011 (1) CTC 636, it was held that all dispute relates to the wakf or any matter pertaining to wakf property should be raised in the first instance before the Wakf Tribunal under Section 83 (5) of the Wakf Act, 1995 and should not be entertained by any Civil Court or high court, straight away under Article 226 of the Constitution of India. In this regard, the Hon'ble Apex Court has held as follows :

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"17. 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 make 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 the High Court.

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It is well-settled that when there is a special law providing for a special forum, then recourse cannot be taken to the general law vide Justice G.P.Singh's Principles of Statutory Interpretation (9^th Edn. 2004, pp 133-134)."

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In Chief Engineer, Hydel Project & ors v. Ravinder Nath & ors., reported in 2008 (2) SCC 350, the Hon'ble Apex Court has held that when the matter fell in the area covered by the Industrial Disputes Act, the Civil Court would have no jurisdiction to decide the same. In the above decision, the Court has referred to several earlier decisions on this point.

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The Hon'ble Supreme Court has categorically held that when the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the mater and not the Civil Court.

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However, in the instant writ petition, the petitioner has asked the first respondent, who has no authority to decide the dispute relating to the Wakf property or Wakf Board.

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In Sardar Khan v. Syed Najmul Hasan (Seth) & ors., reported in 2007 (2) CTC 508 (SC), it was held that the Wakf Act is not applicable to Suits / Appeals / Revisions / proceedings commenced prior to 1.1.1996, when the Wakf Act came into force.

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In Ramesh Gobindram v. Sugra Humayun Mirza Wakf, reported in 2010 (8) SCALE 698, it was ruled by the Hon'ble Supreme Court that election proceeding can only be decided by the Civil Court and not by Wakf Tribunal. The aforesaid decision is not applicable to the relief https://hcservices.ecourts.gov.in/hcservices/ sought for by the writ petitioner herein.

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In Mukram Sherif v. Moinudeen Sheriff & another, reported in 2005-2-LW 615, a Division Bench of this Court rendered a decision ( Markandey Katju, CJ ) and accordingly, held that all dispute relating to Wakf should be filed in the first instance before the Wakf Tribunal, constituted under Section 83 under Wakf Act 1995, and the writ petitions should not be entertained directly by this Court under Article 226 of the Constitution, as there is alternative remedy available.

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Another Division Bench of this Court in M.Liakath Ali v. The Tamil Nadu Wakf Board, reported in 2010 (1) CWC 207, relying on the decision rendered in Salam Khan v. The Tamil Nadu Wakf Board and others, reported in 2005 (1) LW 676, held that the High Court cannot go into disputed question of law.

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In the instant writ petition, the petitioner has stated that he had given a complaint, dated 22.07.2009, a copy of which is available in the typed set, wherein the subject of the letter sent by the petitioner is to take action against the officials of Wakf Board, in view of the prevailing corruption for about 9 years in the Wakf Board. The letter was addressed to the first respondent herein. Admittedly, the first respondent is not the superior authority to the Wakf Board, the second respondent herein and no statutory power is vested with the first respondent to conduct any enquiry on the functioning of the Wakf Board. The relief sought for in the petition is to take action against the officials of the Wakf Board, stating that there was prevailing rampant corruption in the Wakf Board.

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As contended by the learned counsel appearing for the respondents 1 and 2, the first respondent is not empowered to take any action, based on the complaint given by petitioner, since the first respondent is not the superior authority over the second respondent and further, it is a disputed question of fact alleged by the petitioner, which cannot be decided in a writ petition. If at all, the petitioner could have approached the Wakf Tribunal, by producing supporting documents or in case of any criminal case made out, he could have approached the concerned police station, as per law, by way of filing complaint with supporting materials. Sending the complaint to the first respondent by post, with vague allegations are to be construed as an abuse of process of law and Court, since the first respondent has no authority to act on the petition sent by the petitioner.

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In Gangadhar Hanardan Mhatre v. State of Maharashtra, reported in (2004) 7 SCC 768, the Hon'ble Supreme Court has held relying on the earlier decision in Bhagwant Singh v. Commr. of Police, reported in (1985) 2 SCC 537, that when alternative remedies are available, the writ petition filed by informant / appellant, seeking transfer of investigation of the case from State CID to any other impartial investigating agency by raising serious allegations about the competence and fairness of investigating officers and also certain judicial officers would not be maintainable under Article 226 of the Constitution. It was held further as follows :

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""13...In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process https://hcservices.ecourts.gov.in/hcservices/ to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter

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XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds, that the complaint / evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India [(1996) 11 SCC 582]. It was specifically observed that a writ petition in such cases is not to be entertained."

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In Alliraj Gounder v. The Inspector of Police, reported in 2005 (3) CTC 673, this Court has held that the complainant cannot have any say as to which agency should investigate case. If he is aggrieved, the complainant can approach the concerned Magistrate, as per procedure known to law and the Magistrate can, if satisfied, direct appropriate agency to investigate the case. However, the writ petition, seeking transfer of the case cannot be entertained as there was efficacious alternative remedy available to the petitioner therein.

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In the instant case, admittedly, the petitioner had sent a letter, dated 22.07.2009 to the first respondent, raising certain allegations against the employees of the Wakf Board, the second respondent herein and asked the first respondent to take action against the officials of the second respondent. The first respondent, having received the complaint forwarded the same to the second respondent, since it relates to the officials of the Tamil Nadu Wakf Board. If he feel aggrieved, the petitioner is entitled to approach the Wakf Tribunal, in view of Section 83 of the Tamil Nadu Wakf Act, whereby the Wakf Tribunal is empowered to deal with any dispute relating to the Wakf. Similarly, he can also approach the competent police and lodge a complaint, as per law, with supporting materials to ventilate his grievance, as held by the Hon'ble Supreme Court. However, without availing the efficacious alternative remedy available, the petitioner has simply sent a complaint to the first respondent, who has no authority to go into the administration of the Wakf Board or any Wakf property. Similarly, the relief sought for in the writ petition is not legally sustainable, on the ground of availability of efficacious alternative remedy and such petition has to be construed only an abse of process of law, hence, the writ petition is liable to be dismissed.

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In the result, this writ petition is dismissed. However, no order as to costs.

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Sd/-

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Assistant Registrar(Writs)

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/True copy/

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Sub Assistant Registrar

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The Director, Vigilance & Anti Corruption Department,

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Kumaraswamy Raja Salai, Raja Annamalaipuram, Chennai. https://hcservices.ecourts.gov.in/hcservices/

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The Principal Secretary Tamil Nadu Wakf Board, 1,Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai - 600 001. +1cc to Mr.D.Sadiq Raja, Advocate in SR.40585 W.P.(MD).No.1667 of 2011 14.08.2013

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tsvn pbk 25/10/2013 ::7p-4c:

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

Janab T. Jaheer Hussain, v. the Director

Case brief

What is this about?

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Janab T. Jaheer Hussain, v. the Director

Case brief

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