Dr. Babu, v. The Tamil Nadu Wakf Board,

In the High Court of Judicature at Madras Dated : 30.8.2024 Coram :

The Honourable Mr.Justice M.DHANDAPANI Writ Petition Nos.1600 of 2016 & 12136 of 2022 & WMP.Nos.1362 of 2016 & 11575 of 2022 Dr.Babu

...Petitioner in

WP.No.1600 of The Tiruchirapalli Cooperative House Construction Society Ltd., rep.by its Secretary

...Petitioner in

WP.No.12136 of Vs 1.The Tamil Nadu Wakf Board, rep.by the Chief Executive Officer, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai-1.

...R1 in both WPs 2.Mir Hasanullah Shah Dargah rep.by its President Mr.S.Nazir Basha ...R2 in both WPs 3.Mr.S.Nazir Basha, President Mir Hasanullah Shah Dargah ...R3 in WP.No.

4.Mr.S.Nazir Basha, Muthavalli, Mir Hasanullah Shah Dargah ...R3 in WP.No.

12136 of 2022 1/24

5.Mr.M.Mehboob Sherif, Secretary, Mir Hasanullah Shah Dargah ...R4 in WP.No.

6.The Superintendent of Wakfs/ Trichy, Tamil Nadu Wakf Board, Central Circle, Trichy-2.

7.The Inspector of Wakf/Trichy, Tamil Nadu Wakf Board, Central Circle, Trichy-2.

...R4 & R5 in WP.

No.12136 of 8.The Regional Deputy Registrar (Housing), Thiruchirapalli Region, No.16/1, Sammath School Street, Kajah Nagar, Mannarpuram, Thiruchirapalli-20.

(impleaded vide order dated 17.8.2023 in WMP.No.22026 of 2023 ) ...R6 in WP.No.

12136 of 2022 PETITIONS under Article 226 of The Constitution of India praying for the issuance of (i) a Writ of Mandamus forbearing the first respondent from proceeding with the enquiry in Rc.No.16241/06/B5/Trichy dated 22.12.2015 and Wakf Application filed by respondents 2 to 4 dated NIL (WP.No.1600 of 2016); and 2/24

(ii) a Writ of Mandamus forbearing the first respondent from proceeding with the enquiry in Rc.No.16241/06/B5/Try dated 23.3.2022 and Wakf Application filed by respondents 2 & 3 dated NIL (WP.No. 12136 of 2022).

For Petitioner in WP.No.1600 of 2016 :

Mr.N.A.Nissar Ahmed, SC for M/s.Satya Venkataseshan For Petitioner in WP.No.12136 of 2022 :

Mr.N.A.Nissar Ahmed, SC for Mr.L.Kowser Nissar For the Wakf Board :

Mr.V.Raghavachari, SC for Mrs.V.Srimathi For the Administrators of the Dargah :

Mr.Kaja Navas For the Regional Deputy Registrar (Housing), Thiruchirapalli Region :

Mr.L.S.M.Hasan Fizal, AGP COMMON ORDER W.P.No.1600 of 2016 has been filed by Dr.Babu seeking to forbear the first respondent namely the Tamil Nadu Wakf Board (for brevity, the Board) from proceeding further with the inquiry dated 22.12.2015 and the wakf application filed by the administrators of Mir Hasanullah Shah 3/24

Dargah (for short, the dargah) dated NIL.

2. W.P.No.12136 of 2022 has been filed by the Secretary of the Tiruchirapalli Cooperative House Construction Society Limited (for short, the society) seeking to forbear the same Board from proceeding further with the inquiry dated 23.3.2022 and the wakf applications filed by administrators of the dargah dated NIL.

3. Heard the learned Senior Counsel appearing on behalf of the respective petitioner in both the writ petitions, the learned Senior Counsel appeal on behalf of the Board, the learned counsel appearing for the administrators of dargah and the learned Additional Government Pleader appearing for the Regional Deputy Registrar, (Housing), Tiruchirapalli Region, Tiruchirapalli.

4. The facts leading to filing of these cases are as follows : (i) Among many other properties, the property comprised in T.S.No.118, S.F.No.118/1, New No.6, Tennur Village, Trichy admeasuring an extent of about 2 acres and 4 cents originally belonged to one Mr.V.G.Vaidyanathan by virtue of a registered partition deed 4/24

dated 17.8.1959 vide Doc.No.4825 of 1959. At a later point of time, the Settlement Tahsildar II, Trichy initiated a suo motu inquiry under Section 11 of the Tamil Nadu Minor Inams (Abolition & Conversion into Ryotwari) Act, 1963 and ultimately, vide order dated 28.3.1968, it was held that the said Mr.V.G.Vaidyanathan was entitled to T.S.Nos.6, 8 and 9 and the Muthavalli of Mir Amanullah Shah Mosque was entitled to T.S.Nos.14, 16/1, etc. The said order dated 28.3.1968 attained finality. (ii) Pursuant to the said order dated 28.3.1968, patta No.41 was issued in favour of the said Mr.V.G.Vaidyanathan and all the revenue records stood in his favour. To cater to the increase in housing demand, the society, which was registered under the Cooperative Societies Act, launched a scheme during the year 1972-73. The total extent of the colony was 106 acres. Pursuant to that, the society acquired lands under the Land Acquisition Act from private owners and alienated lands from the Government.

(iii) In that process, the society entered into a sale agreement with the said Mr.V.G.Vaidyanathan on 11.12.1972 and thereafter, obtained a sale deed dated 13.6.1973 vide Doc.No.2889 of 1973 with regard to 1 acre and 98 cents in T.S.No.118/1, New T.S.Nos.6, 8 & 9 apart from other properties. The society also obtained a release deed 5/24

09.10.1973 for surrender of lease from the tenants of the said Mr.V.G.Vaidyanathan vide doc.No.5315 of 1973. (iv) Thereafter, the society formed a layout under the name and style of Anna Nagar Colony and obtained approval from both the Director of Town and Country Planning dated 14.5.1981 and the Thiruchirapalli Municipality.

(v) According to the both the petitioners, Dr.Babu and his brother - Mr.Kannan purchased the properties measuring an extent of 5,000 sq. ft each both in T.S.No.6 from the society under two registered sale deeds both dated 27.11.2008 respectively vide Doc.No.7755 and 7754 of 2008 on the file of the Sub-Registrar, Wuraiyur for a valid consideration of Rs.37,75,000/- each and in total, they invested Rs.85 lakhs during the relevant point of time. Dr.Babu also put up a construction after obtaining necessary permission from Trichy Corporation and is paying the property tax from 2008. (vi) When things stood thus, on 19.6.2014, alleging that the subject properties belong to the wakf, a plank was attempted to be erected by the administrators of the dargah in the subject properties. Immediately, Dr.Babu filed a complaint to the Inspector of Police, Anti Land Grabbing Cell, Trichy Cantonment. Pursuant to the said complaint, 6/24

the administrators of the dargah were arrested, remanded to judicial custody and granted bail subsequently. Thereafter, the Inspector of Police, Anti Land Grabbing Cell referred the matter to the Revenue Divisional Officer (RDO), Tiruchirapalli, who, by proceedings dated 16.7.2014, found that the sale deeds stand in favour of Dr.Babu and his brother and as such, they are deemed to be in possession as the owners of the subject properties.

(vii) Challenging the proceedings dated 07.7.2014 and 16.7.2014, the Secretary of the dargah filed two writ petitions in WP(MD) Nos.12063 and 12064 of 2014 before the Madurai Bench of this Court. After hearing the parties, a learned Single Judge of the Madurai Bench of this Court, by a common order dated 31.7.2015, disposed of the said writ petitions by directing the parties to approach the civil court for appropriate relief by establishing their title. (viii) Thereafter, the administrators of the dargah filed an undated application before the Board to declare that the subject properties belong to the wakf and that Dr.Babu, his brother and their predecessors have no title or right, to declare that the sale deeds, if any, were not binding on the wakf and for possession. The Board has no jurisdiction to grant such a declaratory relief. Subsequently, the Board initiated an 7/24

inquiry. The subject properties never vested with the wakf at any point of time. Even before the Settlement Tahsildar, Tiruchirapalli, the Muthavalli of the dargah was a party and the order dated 28.3.1968 became final as it was not challenged before any court of law. (ix) If the wakf had any claim with regard to possession or title in respect of the subject properties, it ought to have filed a suit within 30 years as per Section 66(G) of the Wakf Act, 1954. To get over the aspect of limitation in the suit to be filed before the civil court, the administrators of the dargah approached the Board by filing an application seeking for a declaratory relief against Dr.Babu, his brother, the society and two others and for possession. Further, by the impugned notice dated 22.12.2015, Dr.Babu was called upon to appear for the inquiry fixed on 29.12.2015, which was once again adjourned to 27.1.2016. Hence, Dr.Babu filed W.P.No.1600 of 2016 seeking to forbear the Board from proceeding further with the inquiry pursuant to the notice dated 22.12.2015.

(x) When W.P.No.1600 of 2016 came up for admission, in WMP. No.1362 of 2016 by order dated 19.1.2016, this Court granted an order of interim injunction. The interim order granted by this Court in still in force. However, the administrators of the dargah approached the Board 8/24

once again by filing two more applications seeking to conduct an inquiry and were stated to have obtained a direction without any notice to the society and without any direction from the Madurai Bench of this Court to dispose of the applications on merits.

(xi) As a consequence, the Board, vide proceedings dated 23.3.2022, called upon the society for an inquiry on 06.4.2022 and the matter was thereafter adjourned by the Board to 13.4.2022 and 06.5.2022. The society also came to know that parallel proceedings were also initiated before the Wakf Tribunal. Hence, W.P.No.12136 of 2022 has been filed by the Secretary of the society seeking to forbear the Board from proceeding further with the inquiry pursuant to the notice dated 23.3.2022. When W.P.No.12136 of 2022 came up for admission, based on the interim order granted in W.P.No.1600 of 2016 dated 19.1.2016, an order of interim injunction was also granted in W.P.No.12136 of 2022 on 12.5.2022 for a period of six weeks. That is how the petitioners are before this Court.

5. The Chief Executive Officer of the Board filed a separate counter in both the writ petitions wherein, in common, it has been stated as follows:

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(i) The property in T.S.No.118/1 at Thennur Village, Tiruchirapalli Taluk was devoted for the support and service of the dargah by title deeds bearing Nos.677 and 1142. The said property was surveyed and the dargah was registered before the Board in the year 1995 and gazetted subsequently in the year 1958. In the town survey register also, the said land was shown as the dargah devadayam. Once the property is devoted to the wakf, no person can claim title or right over the wakf property without the approval of the Board. (ii) The order passed by the Settlement Tahsildar II, Trichy dated 28.3.1968 cannot not be relied upon in this case as the said order was passed by a suo motu inquiry without any notice to the Board nor its representatives. Dr.

Babu never stated that he acquired title by virtue of the order passed by the Settlement Tahsildar, Trichy dated 28.3.1968. (iii) The facta of the ownership of the said Mr.V.G.Vaidhyanathan, the society entering into a sale agreement with the said Mr.V.G. Vaidhyanathan in respect of 1.98 acres, the consequential execution of the sale deed and securing the release deeds from the tenants of the said Mr.V.G.Vaidhyanathan, the attempt of the administrators of the dargah to erect a plank, the lodging of the police complaint by Dr.

the administrators of the dargah and the grant of bail to them, the passing of the order by the RDO, Trichy in July 2014 in favour of Dr.Babu and his brother and the filing of applications by the administrators of the dargah before the Board were all denied. According to the Board, forming of a layout by the society and the subsequent grant of approval by both the Director of Town and Country Planning and the Trichy Municipality would not confer title on them. (iv) The wakf is having absolute title over the subject properties and therefore, no individual can claim any right over the same. The administrators of the dargah are entitled to institute proceedings as per Section 85 of the Wakf Act, 1995. The Board has the exclusive power to supervise the wakf institutions and their properties. Once a wakf is created, it always remains to be a wakf and the nature of the property cannot be changed nor altered.

(v) Having participated in the inquiry, it is open to the society to file its objections including maintainability of the applications before the Board. Instead, filing of W.P.No.12136 of 2022 before this Court is untenable. Ultimately, the Board sought for dismissal of the writ petitions.

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6. The private respondents filed a separate counter in both the writ petitions wherein, in common, it has been stated as follows : (i) The land measuring an extent of 12.66 acres at Tennur Village, Trichy District was given by the British Government through two title deeds bearing Nos.677 and 1142 by way of a certificate dated 30.6.1823 issued by the Collector for the support and service of the dargah. Further, a scheme decree was passed on 27.4.1920 by the District Munsif Court, Trichy for managing the dargah and its properties including the properties pertaining to the deeds bearing Nos.677 and 1142.

(ii) After the commencement of the Wakf Act and the constitution of the Board, a general survey was conducted. The property in S.No.181/1 belonging to the dargah was also surveyed and the dargah was registered with the Board in 1955 and was also gazetted in 1958. In the town survey register of the year 1963, it was clearly recorded that S.No.118/1 belongs to dargah devadayam. Thereafter, S.No.118/1 was resurveyed and the properties pertaining to old S.No.118/1 and new S.Nos.6, 8 and 9 were shown in the name of the dargah. (iii) From the date of title deed No.1142, the dargah is the owner and is in absolute possession and enjoyment of the subject properties. 12/24

Once the wakf becomes the owner of the subject properties and the title deeds and the revenue records are also in the name of the wakf, it is not known as to how the said Mr.V.G.Vaidhyanathan became the owner of the properties. The alleged partition deed stated to have been executed in favour of the said Mr.V.G.Vaidhyanathan in 1959 was not produced.

(iv) The wakf properties cannot be sold or mortgaged without the permission of the Board. Hence, neither the said Mr.V.G.Vaidhyanathan nor Dr.Babu can create any rights over the wakf properties. Based on the documents submitted by the wakf from the year 1823, it is clear that the properties in T.S.No.118/1 absolutely belong to the wakf. The factum of passing the order dated 28.3.1968 by the Settlement Tahsildar II, Trichy is denied. The town survey register records dated 21.10.2003 and 02.9.2005 and the report of the Divisional Inspector of Land Survey dated 07.4.2005 would prove that the subject properties belong to the wakf.

(v) The said Mr.V.G.Vaidhyanathan had no rights to execute either a sale agreement or a sale deed in favour of the society in respect of the wakf properties. Without furnishing the alleged partition deed in favour of the said Mr.V.G.Vaidhyanathan and both the sale agreement as well 13/24

as the sale deed in favour of the society, Dr.Babu cannot claim any right over the subject properties.

(vi) Dr.Babu's father, who was a retired IAS Officer, with the connivance of the revenue officials, fabricated the documents and got an order passed in favour of his sons in July 2014 by the RDO, Trichy. When the said order was challenged before the Madurai Bench of this Court by filing two writ petitions, a learned Single Judge of this Court directed the parties to approach the civil court to establish their title. Despite that, Dr.Babu approached the RDO, Trichy on 28.8.2015 seeking for the issuance of patta in his name. However, the RDO, Trichy passed an order dated 31.8.2015 directed Dr.Babu to approach the competent civil court for appropriate relief.

(vii) The administrators of the dargah filed applications before the Board seeking to remove the encroachments and for other reliefs against Dr.Babu and others. Since the society encroached a portion of the wakf property, the administrators of the dargah filed applications under the Wakf Act.

(viii) The Board issued the notice dated 22.12.2015 calling upon Dr.Babu to appear for the inquiry. However, he filed W.P.No.1600 of 2016. The said Mr.V.G.Vaidhyanathan was the adjacent owner of the 14/24

wakf property and it is not his case that he was assigned patta in respect of the wakf properties. Dr.Babu cannot be permitted to state that all the revenue records stand in his name without producing the partition deed in favour of the said Mr.V.G.Vaidhyanathan and the sale deed executed in favour of the society. The Board is conferred with the powers to declare the subject properties as the wakf properties after adhering to the principles of natural justice. If Dr.Babu has any rival claim, he has to approach the competent civil court to redress his grievance. Further, the inquiry has been initiated by the Board pursuant to the directions of this Court in W.P.(MD) No.22172 of 2018 dated 19.11.2021 to save the wakf properties. Ultimately, the Board sought for dismissal of the writ petitions.

7. The Regional Deputy Registrar (Housing), Trichy Region got himself impleaded in W.P.No.12136 of 2022 as the sixth respondent on the ground that the society is a registered one and is under the superintendence of the sixth respondent, that all purchases or sales made by the society were only with the concurrence and approval of the sixth respondent, that by virtue of the present dispute with regard to the subject properties projecting illegally as the wakf properties, a great 15/24

disrepute was caused to the housing cooperative societies under the sixth respondent among the general public and that the exemption granted to the cooperative societies for registration purpose would also be at peril if such clouds were cast.

8. The learned Senior Counsel appearing on behalf of the petitioners submitted that the administrators of the dargah, by claiming right over the subject properties, instituted O.A.No.87 of 2019 on the file of the Wakf Tribunal, Chennai seeking for a declaration and permanent injunction, that the administrators of the dargah also filed undated applications before the first respondent under Sections 52 to 54 of the Wakf Act, 1955 seeking the very same relief, which is, per se, unsustainable and that in respect of the very same subject properties, there cannot be two parallel proceedings, one before the Wakf Tribunal and one before the Board.

9. This Court has carefully considered the submissions of the learned counsel on either side and perused the materials available on record.

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10. In the typed set filed along with W.P.No.1600 of 2016, the Dr.Babu furnished a copy of the proceedings of the RDO, Tiruchirapalli dated NIL.7.2014. It is seen from the said proceedings that only after perusal of the documents produced on either side as well as the revenue records and after conducting an inquiry, the RDO, Trichy, vide proceedings in Na.Ka.No.A1/2431/2014 dated -.7.2014, came to the conclusion that Dr.Prabhu and his brother - Mr.Kannan purchased 10,000 sq.ft from the society for a valid sale consideration. In the said proceedings, the administrator of the dargah was also a party and it was also recorded by the RDO, Tiruchirapalli that the alleged devadayam parent document namely title deed bearing No.

1142, which was stated to have been in the custody of the District Collector concerned, was not all produced for perusal, that the copy of the judgment in O.S.No.133 of 1918 did not pertain to the properties of the dargah, that the patta issued in the name of the said Mr.V.G.Vaidyanathan in 1960 was not taken into consideration in the land survey register of the year 1963 issued by the Assistant Land Planning Officer, Thanjavur and that the validity of document Nos.6 and 7 produced on behalf of the dargah were not proved as the patta was issued without inquiring the said Mr.V.G.

records during the relevant point of time.

11. In both the writ petitions, the copies of the undated applications filed only by the administrators of the dargah before the Board have been enclosed. It is not as if Dr.Babu approached the Board. The administrators of the dargah alone approached the Board without approaching the competent civil court as directed by this Court in the earlier order of this Court dated 31.7.2015. That being so, without rectifying their own mistake, the administrators of the dargah are pointing fingers at Dr.Babu in filng an application dated 28.8.2015 before the RDO, Trichy seeking to grant patta in his favour.

12. Dr.Babu - one of the writ petitioners and his brother claim to have acquired title to the subject properties by purchase from the society for a valid consideration. To cater to the increase in housing demand, the society acquired lands from the private individuals also. Hence, it is not known as to how they would be able to produce the title and the parent documents possessed by the said Mr.V.G.Vaidhyanathan as contended by administrators of the dargah. 18/24

13. When the said proceedings of the RDO, Trichy were challenged by filing WP(MD) Nos.12063 & 12064 of 2014, a learned Single Judge of the Madurai Bench of this Court directed the parties to approach the competent civil court, the administrators of the dargah contrary to the order of this Court has approached the Board and subsequently the Wakf Tribunal, which have no jurisdiction to entertain the applications. The Board was bold enough to make false averments and went to the extent of stating in the counter affidavits that no such order was passed by the RDO, Tiruchirapalli in July 2014. Instead of putting the blame on Dr.Babu, instantaneously, as law abiding citizens, the administrators of the dargah ought to have approached the competent civil court by filing a suit with appropriate relief. The administrators of the dargah also cannot bypass the remedy before the competent civil court despite the direction issued by a learned Single Judge of this Court in the writ petitions filed earlier at the first instance.

14. It is also seen from the records that only in the presence of the administrators of the dargah, the RDO, Trichy passed the order dated NIL.7.2014 and the same attained finality only at the instance of the administrators of the dargah. Without challenging the common order 19/24

dated 31.7.2015 passed by this Court in a manner known to law, the administrators of the dargah had conveniently chosen to approach the Board and subsequently the Wakf Tribunal by filing applications after applications without the date unmindful of the earlier direction issued by this Court. Once the jurisdiction of this Court was invoked and that too, only at the instance of the administrators of the dargah, the Board ought not to have entertained the applications filed by the administrators of the dargah.

15. Without even producing the relevant documents before the RDO, Trichy in the year 2014, at this length of time and that too, in the second round of litigation, either the Board or the administrators of the dargah cannot take a stand that no suit or other legal proceeding should lie in any civil court, revenue court and any other authority in respect of any wakf, wakf property or any matter, which is required under the Wakf Act to be determined by the Wakf Tribunal.

16. Pursuant to the common order of this Court dated 31.7.2015, Dr.Babu filed an application before the RDO, Trichy seeking patta and in that application, by order dated 31.8.2015, the RDO, Trichy, passed 20/24

an order directing the parties to approach the competent civil court based on the common order dated 31.7.2015 in W.P.Nos.12063 & 12064 of 2014. It is not known as to why Dr.Babu also approached the RDO, Trichy for grant of patta when there is a specific direction issued by a learned Single Judge of this Court on 31.7.2015.

17. The administrators of the dargah also went to the extent of saying in their counter that they filed all the title documents before this Court pertaining to the subject properties.

18. However, on a perusal, it came to light that only the documents, which were produced before the RDO, Tiruchirapalli alone were produced before this Court in the typed set of papers and no fresh documents are produced before this Court. Even assuming that they possess all the relevant documents, they can very well approach the competent civil court by filing a suit. It cannot be lost sight of that the RDO, Tiruchirapalli, in the order dated NIL.7.2014, rejected the documents submitted on the side of the administrators of the dargah. Instead, Dr.Babu asserted that he and his brother acquired the subject properties by way of two sale deeds dated 27.11.2008 from the society. 21/24

He also furnished copies of the said sale deeds in the typed set of papers. According to him, the subject properties are not the properties of the dargah. That being so, Dr.Babu has to go only before the competent civil court seeking appropriate relief.

19. Hence, the writ petitions are allowed and a direction is issued to the Wakf Board forbearing them from proceeding further with the notices dated 22.12.2015 issued to Dr.Babu and 23.3.2022 issued to the society. As has been reiterated in the earlier order of this Court dated 31.7.2015 in W.P.(MD) Nos.12063 & 12064 of 2014, both the parties shall approach the competent civil court by filing a suit by canvassing all the points in a manner known to law without resorting to dilatory tactics. No costs. Consequently, the connected WMPs are closed. 30.8.2024 Index : Yes (or) No : Yes (or) No To 1.The Chief Executive Officer, Tamil Nadu Wakf Board, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai-1.

2.The Superintendent of Wakfs/ 22/24

Trichy, Tamil Nadu Wakf Board, Central Circle, Trichy-2.

3.The Inspector of Wakf/Trichy, Tamil Nadu Wakf Board, Central Circle, Trichy-2.

4.The Regional Deputy Registrar (Housing), Thiruchirapalli Region, No.16/1, Sammath School Street, Kajah Nagar, Mannarpuram, Thiruchirapalli-20.

RAP 23/24

M.DHANDAPANI,J RAP & 12136 of 2022 & WMP.Nos.1362 of 2016 & 11575 of 2022 30.8.2024 24/24