S.M. Kamaluddin Fakhri Others v. Sirajuddin Others

(Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the judgment and decree dated 20.12.2007 passed in O.A.No.3 of 2004 on the file of the wakf Tribunal/I Assistant City Civil Court, Madras, reversing the order dated 5.2.2004 passed in RC. 3500/C2/C3/CHE/Item. 129/2003 by the Tamil Nadu wakf Board, Madras.

W.P. Nos. 17624 and 17625 of 2008:- Petitions filed under art 226 of constitution of India praying to issue a writ of (i) mandamus forbearing the 2nd respondent Board, from considering the wakf application in R.C.No.3500/E2/03 Chennai dated 17.6.2008 and (ii) certiorari calling for the records in proceeding in O.A.No.3/04 on the file of the wakf Tribunal I Assistant City Civil Judge, Chennai and quash the order dated 20.12.2007 respectively.)

Common Judgment:

N. Paul Vasanthakumar, J.

1. All the four writ appeals are preferred against the common order of the learned Single Judge dated 22.10.2008 made in W.P.Nos.17624 and 17625 of 2008. While W.A.Nos.1/2009 and 2/2009 are preferred by the writ petitioners in W.P. Nos.17625 and 17624 of 2008 respectively, W.A. Nos. 5/2013 and 6/2013 are preferred by the 6^th respondent in the respective writ petitions.

2. C.R.P. No. 4186 of 2008 is filed by the 6^th respondent in the above writ petitions (appellants in W.A.Nos.5/2013 and 6/2013) against the judgment and decree dated 20.13.2007 in O.A.No.3 of 2004 on the file of the Wakf Tribunal/I Assistant City Civil Court, reversing the order dated 5.2.2005 in RC. 3500/C2/C3/CHE/Item.129/2003 on the file of Wakf Board, Madras.

3. W.P. No. 17624 of 2008 was filed seeking a writ of mandamus forbearing the Wakf Board from considering the Wakf Application in RC. No.3500/C2/03/Chennai, dated 3.3.2003. W.P.No.17625 of 2013 is filed to quash the order dated 20.12.2007 in O.A.No.3 of 2004 on the file of the Wakf Tribunal/I Assistant City Civil Court, Chennai.

4. The case of the writ petitioners are as follows:

(a) An extent of 95 grounds and 1748 sq.ft in S.No.2024 of Mylapore Village was erroneously notified as ‘Wakf property’ following the preliminary survey of Wakf conducted by this Board in 1955 by notification dated 20.5.1959.

(b) A suit was filed in O.S.No.1538 of 1960 before the II Assistant Judge, City Civil Court, Chennai, to declare that the entire suit property is not wakf property and the notification dated 20.5.1959 as null and void. The said suit was decreed on 27.8.1963, excluding the prayer hall and the right of way to the prayer hall.

(c) Aggrieved by the said judgment dated 27.8.1963, the Board filed appeal in A.S.No.21 of 1964 before the Principal Judge, City Civil Court and the judgment and decree in the above said suit was modified on 21.1.1966, holding that the entire property is Wakf-Alal-Aulad to the extent to which it was dedicated for the maintenance of mosque and burial ground, and that the notification which was inconsistent to that extent was declared as void. The said judgment was not questioned by anyone and the same had become final. Thus, the entire 95 grounds and 1748 sq.ft in S.No.2024 was declared as Wakf-Alal-Aula for the benefit of the mala descendants of Wakf, who are writ petitioners family members and for the maintenance of the mosque

(d) In the year 1988, writ petitioners started the work of renovation of the prayer hall and at the instance of Himidali Street Arundale Street Masjit and Madrasa Development Committee, the Wakf Board issued notice on 29.11.1989 and called upon the first and 5^th petitioners and the 6^th respondent, who are sale descendants of the original Wakif, to show cause as to why they should not be removed from the Muthavalliship.

(e) The second respondent by order dated 22.4.1991 ordered the aforesaid three persons to hand over possession of the Wakf property to the Wakf Board. The said action was challenged in W.P.No.15144 of 1991 before this Court and prayed for a direction to hand over the management and possession of the property. This Court by order dated 15.12.1995 quashed the order of the Wakf Board with a direction to determine and apportion the extent of property, which was dedicated for the purpose of upkeep and management of the Mosque and the extent of property dedicated to the benefit of the male descendants of the original founder, and further held that the Wakf Board would have jurisdiction only to the portion of the property, which is dedicated for the purpose recognized by Muslim Law as Pious, Religious or Charitable.

(f) The second respondent in the said writ petition challenged the order in W.P. No.15144 of 1991 dated 15.12.1995 in W.A.No.154 of 1997 and the said writ appeal was dismissed by the First Bench of this Court on 10.7.1997. No further appeal or review was filed against the judgment in writ appeal.

(g) In terms of the order of the learned single Judge, as confirmed in writ appeal, the Wakf Board took up the issue of apportioning the extent dedicated and by order dated 19.4.1998 set up 30’ grounds for the benefit of Mosque, and the remaining 60 grounds for the maintenance of the male descendants of the Wakf i.e, founder of the Wakf and directed that the property may be handed over to the male descendant members of the Founder of the Wakf after demarcating and separation.

(h) Demarcation sketch was approved by the Wakf Board on 19.4.1998 and the Superintendent of Wakf, Northern zone took possession of 30 grounds and a Gazettee notification was also issued on 27.8.2003 confirming such separate possession. The remaining 60 grounds were released and the said extent is in exclusive possession and enjoyment of the male descendants of the original Wakif or Founder. Actual possession of the said 60 grounds was handed over on 25.4.2002 and the Gazette notification having been published on 25.4.2003 under Section 6 of the Wakf Act, 1995, no modification can be made.

(i) The Wakf Board issued notice dated 17.6.2008 and called upon the writ petitioners to appear before the Wakf Board for an enquiry on 25.6.2008 starting that the enquiry relating to Arundale Street Mosque was to be conducted, without specifying any details. On 25.6.2008 the 4th writ petitioner accompanied by his counsel appeared before the Wakf Board and at that time they were informed that in O.A.No.3 of 2004, the Wakf Tribunal directed to conduct enquiry at the instance of the respondents 3 to 5 in the writ petition and thereafter the writ petitioners and their counsels sought for copies of the petition in O.A.No.3 of 2004 and the order passed thereon on 25.6.2008.

(j) The Wakf application was filed before the Wakf Tribunal on 3.3.2003 contending that the respondents 3 to 5 in the writ petition were not heard before demarcating 2/3^rd and 1/3^rd of the property by order dated 19.4.1998, as ordered by this Court, and no notice was given to the Jamathdars and therefore they sought re-open the matter once again. The O.A.No.3 of 2004 was filed before the Wakf Tribunal on 5.2.2004 and in the said application writ petitioners were not made as parties though the applicants were well aware of the demarcation already made and the writ petitioners are interested parties, who are in possession of the property. The Tribunal passed an order on 20.12.2007 and remanded the matter to the Wakf Board to consider the Wakf application afresh, and pass orders within three years.

(k) Pursuant to the remand order, the Wakf Board taken up the matter for enquiry without sending notice to the writ petitioners and at the instance of some of the members of the Wakf Board, the writ petitioners 1 to 4 alone were given notice for re-enquiry. The order of the Wakf Tribunal made in O.A.No.3 of 2004 dated 20.12.2007 was challenged contending that the said order was passed without notice to the persons, who are likely to be affected, that too after Gazette notification was published on 27.8.2003, which was not challenged as the issue has reached its finality. Therefore the said order was challenged before the learned single Judge.

5. In WP.No.17625 of 2008 the order made in O.A.No.3 of 2004 is challenged on the above said grounds.

6. The said prayer was opposed by the third respondent by filing common counter affidavit stating that the writ petitioners claim a portion of the Wakf property by claiming rights over 60 grounds behind the back of the Jamathdars and therefore, the order of this Court rendered in W.P.No.15144 of 1991 is non-est. The Wakf Board by its proceedings dated 5.2.2004 without assigning any valid reason dismissed the Wakf application filed by the third respondent, against which O.A.No.3 of 2004 was filed before the Wakf Tribunal, wherein it was held that appropriate reason ought to have been given by the Wakf Board for partition and remanded the matter to the Wakf Board for reconsideration. The writ petitioners have not entered appearance before the Wakf Board and therefore the writ petitions are liable to be dismissed.

7. The learned single Judge heard both the writ petitions and gave a finding that as per the order of this Court in W.P.No.15144 of 1991 dated 15.12.1995, while demarcating the land, the Wakf Board had not heard the respondents 3 to 6 and therefore the said demarcation made on 19.4.1998 is not in accordance with the orders passed by this Court and the application filed to re-examine the said order dated 19.4.1998 having been rejected by the Wakf Board, O.A.No.3 of 2004 was filed before the Wakf Tribunal, in which the Tribunal ordered re-enquiry though without issuing notice to the writ petitioners. The learned single Judge remitted the matter to the Wakf Board to complete the entire proceedings and pass orders in terms of the order of this Court in W.P. No.15144 of 1991 dated 15.12.1995, within a period of two months against which these writ appeals are preferred.

8. In C.R.P. No.4186 of 2008 filed under Article 227 of the Constitution of India, the order of the Wakf Tribunal dated 20.12.2007 made in O.A.No.3 of 2004 was challenged by the 6^th respondent in the writ petitions, who supported the case of the writ petitioners. As the issue in the said revision petition is connected with the issue in the writ appeals, the revision petition was ordered to be tagged along with the writ appeals.

9. Mrs. Hema Sampath, learned Senior Counsel and Mr. K.A. Basheer Ahamed, learned Counsel appearing for the respective parties contended that in the order of this Court in W.P.No.15144 of 1991 dated 15.12.1995, the Wakf Board was directed to determine the extent to which the property has to be dedicated for any purpose recognized by the Muslim Law as Pious or Religious or Charitable, for the maintenance of the Mosque and for the purpose of maintenance of the male descendents of Wakif. Specifically holding that 1/3^rd is for religious pious or charitable purpose, and 2/3^rd for the maintenance of the male descendants of the original Wakif, the said order was implemented by the Wakf Board and demarcated 30 acres for pious, religious and charitable purpose and 60 acres for the maintenance of the male descendants of the Wakif. The said demarcation along with the plan was notified in the official Gazette as early as in the year 1988. Application tore-open before the Wakf Tribunal was made only on 3.3.2003 and the same was rejected by the Wakf Board on 5.2.2004. Even before any order was passed by the Wakf Board, the demarcation of 1/3rd and 2/3rd property was Gazetted on 27.8.2003. Therefore, the Wakf Tribunal has no jurisdiction to re-open the issue as declaration made under Section 6 of the Wakf Act, 1995 cannot be reopened The demarcation having been made as per the shares, which were ordered to be allotted as 1/3rd and 2/3^rd, so long as the said order stands, the Wakf Tribunal has not jurisdiction to order re-enquiry, merely because the contesting respondents in the writ petition alleged that they were not heard. The learned counsels further submitted that in the affidavit filed in support of the writ petitions as well as in the application “filed before the Wakf Board as well as Wakf Tribunal, except the claim of hearing, which rights of the respondents in the writ petition are affected by not extending hearing, was not stated. The learned counsels further submitted that the Committee, which was not allegedly heard, is not in existence and the pleading was made only for trespassers. The learned counsels also submitted that after the demarcation of 60 grounds of lands, the said portion was utilized by several third parties and therefore third party interests are accrued, and without impleading the persons who are in enjoyment of the properties earmarked for the male descendants of the Wakif, the Wakf Tribunal was not right in ordering enquiry and the learned single Judge also not right in upholding the order and remitting the same for reconsideration.

10. Mr. V. Lakshmi Narayanan, learned counsel appearing for the Wakf Board on the other hand submitted that he has no say in this matter and the Wakf Board has initially demarcated the areas pursuant to the directions of this Court in W.P. No. 15144 of 1991 dated 15.12.1995 and the learned Counsel left the matter to be decided by this Court.

11. Mr. Nissar Ahamed, learned Counsel appearing for the contesting respondents in the writ petitions and CRP submitted that by giving opportunity of hearing, no prejudice would be caused to the writ petitioners and this Court in W.P.No.15144 of 1991 dated 15.12.1995 ordered to demarcate 1/3rd and 2/3rd or the property after giving adequate opportunity to the petitioners in the said writ petition and concerned parties, and the contesting respondents having not been issued with notice by the Wakf Board while demarcating the area as 1/3rd and 2/3rd on 19.4.1998, the same is not in accordance with the order of this Court. Therefore the order of the learned single Judge directing the Wakf Board to give notice to the concerned parties and hear the contesting respondents, and then to pass orders, requires no interference.

12. We have considered the rival submissions of the respective counsels for the parties.

13. To resolve the controversy in these cases, the rights of the parties are to be traced from the order of this Court made in W.P.No.15144 of 1991 dated 15.12.1995. The learned single Judge based on the judgment and decree passed in Civil Suit viz., C.S.No.785 of 1989 on the file of this Court dated 2.5.1990, wherein it was ordered that 30 grounds for the maintenance of prayer hall and remaining60 grounds is to be partitioned among the parties in the partition suit, held that 1/3rd property is to be demarcated for the maintenance of Mosque, and the remaining 2/3rd property for the maintenance of the male descendants, and directed the Wakf Board to demarcate the said extent viz., 30 acres and 60 acres, after giving opportunity to the parties concerned. Thus, the extent of the land to be utilized for the maintenance of the male descendants of the founder/Wakif is not in dispute. The said finding given by the learned single Judge was affirmed by the Division Bench is W.A.No.154 of 1997 dated 10.7.1997.

14. As directed above, the Wakf Board by order dated 19.4.1998 after hearing the parties, demarcated the area as per the judicial finding. The said findings read as follows:

“Now, therefore, the Board hereby decides as hereunder:

1) That the Mosque and Burial Ground notified in the Government Gazette as G.S.No.96/Mds owning landed properties to the extent of 95 grounds and 1748 sq.ft. Comprised in T.S.No.2024, Mylapore Village is hereby declared as Wakf-alal-aulad defined in Section 3(1)(iii) of Central Wakf Act 29 of 1954.

2) That in compliance with the order of the Hon’ble High Court in W.P.No.15144/91 hereby apportion 1/3rd of the total properties belonging to the said wakf stands completely detached and demarcated and hereby declared “a public wakf and 1/3rd of the original dedicated properties or 30 grounds, whichever is higher, is hereby duly apportioned for exclusive religious and charitable purposes mainly for the purposes of maintenance of the already existing Mosque and Burial ground and that the composite wakf is hereby rendered and declared as a public wakf and will be treated as such, maintained and administered accordingly, which fact is hereby duly acknowledged and accepted by all concerned specifically by all the decendants of the late Janab Sha Abdul Khader Fakrit Sahib.

3) That in pursuance of the aforesaid stipulations a new proforma report will be prepared with suitable amendments in conformity with public wakfs particularly the rule of succession i.e., election of administrative set up by the general muslim public of the locality, according to usual procedure and observing all formalities.

4) The respondents herein shall assure demarcation as exhibited in the demarcation chart (Exhibit-I) submitted to the Board which is mutually approved by the parties herein and that the respondents herein shall put up necessary and distinct boundary stones separating the public wakf properties to the extent of 30 grounds along with already agreed pathway as shown in exhibit.

5) That the 2/3rd of the properties hereby released to he enjoyment of the respondents shall be duly handed over to the respondents by the wakf board officials only after stipulated demarcation and separation of the 1/3rd of the properties exclusively set apart for the public wakf purpose is completed and duly taken over by the Wakf Board officials.

6) And that, the Secretary/Chief Executive Officer, Tamil Nadu Wakf Board in hereby directed that after taking charge of the demarcated Wakf properties, the new public wakf shall be brought under the direct management of the Tamil Nadu Wakf Board and after a reasonable period the Board shall initiate proceedings to constitute a public committee to manage the affairs of the public wakf as per customs and practices with a provision for governing the activities of all public wakf institutions.

The Secretary/Chief Executive Officer, Tamil Nadu Wakf Board is hereby directed to send a detailed report both to the Tamil Nadu Wakf Board and to the High Court after full compliance of the directions given by the Board.”

The Tamil Nadu wakf Board before passing the said order issued notice to one Sirajudeen, Secretary, Himidali Street-Arundale Street Masjid and Mudrasa Development Committee on 28.1.1998, wherein it was stated that he was requested to appear before the Board on 4.2.1998 at 3 p.m. At the Tamil Nadu Wakf Board Office, Santhome High Court, Chennai. The said secretary of the Committee did not appear for enquiry on the designated day, and an order was passed on 19.4.1998 by the Wakf Board. The said Sirajudeen, though filed writ petition and prayed for copy of the order in W.P.No.12549 of 1998, has chosen to move the Wakf Board for reconsideration only in the year 2003, that was on 3.3.2003. The said request was rejected on 5.2.2004. Thereafter he filed O.A.No.3 of 2004 and in the said application, the Wakf Board filed a counter affidavit on 15.9.2004 wherein it is stated that the applicant viz., the Committee, in spite of receipt of notice has not chosen to argue the case before the Board when the mater was finally taken up for hearing an 4.2.1998 and the said fact is also admitted by the said Sirajudeen in the subsequent Court proceedings, and therefore the allegation that no notice was served upon the Committee is absolutely false.

15. In the application filed for re-opening before the Wakf Board or in the counter affidavit filed in these writ petition before this Court by the said Sirajudeen in W.P. No. 17624 and 17625 of 2008, how the rights of the Committee is affected has not been stated. Even during the course of the argument, the learned counsel for the private respondents was unable to point out the prejudice caused to the private respondents by virtue of the orders passed by the Wakf Board dated 19.4.1998 due to alleged non-hearing of the third respondent in the writ petition.

16. Since in the counter affidavit filed by the Wakf Board before the Wakf Tribunal in O.A. No. 3 of 2004, it was stated that notice was served on the Committee, and third respondent being Secretary of the Committee at the relevant point of time, we are of the view that the third respondent, who failed to avail the opportunity extended to him, is not justified in contending that the Wakf Board has passed the order without hearing the third respondent/Committee. In the affidavit filed in support of W.P.No.12549 of 1998, the third respondent has stated that the Committee was a party to the proceedings before the Wakf Board and therefore it is entitled to get certified copy of the order dated 19.4.1998.

17. In the light of the above factual aspects, which are not controverted, we are of the view that the third respondent was issued notice by the Wakf Board before demarcating 1/3rd and 2/3rd share of the Wakf-alal-Aulad, and having failed to appear before the Wakf Board, and having not pleaded any prejudice caused because of his non-appearance, we are of the view that the third respondent is not justified in claiming that no notice was issued, and the order of the Wakf Tribunal made in O.A.No.3 of 2004, which was confirmed by the learned Single Judge, cannot be sustained. The rights of the parties having been determined by the order of this Court in W.P.No.15144 of 1991, confirmed in W.A.No.154 of 1997, the third respondent cannot be permitted to re-agitate the issue, particularly when the demarcation has been notified in the official Gazette on 27.8.2003, and third party interests are created in the 2/3rd property allotted to the male descendants of the Wakif.

18. For the above reasons, he order of the Wakf Tribunal made in O.A.No.3 of 2004 dated 20.1`2.2007 as well as the order of the leaned single Judge dated 22.10.2008 are set aside. The writ appeals as well as the Civil Revision Petition are allowed. No costs. Connected miscellaneous petitions are closed.