S.M.Seeni Mohamed v. The Chief Secretary

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.02.2022

CORAM:

THE HONOURABLE MR.JUSTICE M.SUNDAR S.M.Seeni Mohamed ... Petitioner Vs.

1.The Chief Secretary, Government of Tamil Nadu, St. George Fort, Secretariat, Chennai - 9.

2.The Chief Secretary, Tamil Nadu Waqf Board, Vallal Seethakathi Nagar, Chennai.

3.The District Collector, Ramnad District, Ramnad.

4.The Deputy Superintendent of Police, Rameshwaram, Ramnad.

5.Abdul Hameed 6.Abdul Kalam 7.Avul Meera 8.Uthuman Ali 9.Habeeb Rahmathullah ... Respondents P RAYER:

Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, directing the respondents 1 to 4 to take appropriate action against the respondents 5 to 9 on the basis of the petitioner's representation dated 26.06.2014. For Petitioner : Mr.Naresh Prabhu for Mr.S.M.A.Jinnah For Respondents 1, 3&4 : Mr.M.Lingadurai Special Government Pleader For Respondent No.2 : Mr.Mohamed Hashim for Mr.N.Mohideen Basha Standing Counsel For Respondents 5 to 9 : Mr.Nawaz for M/s. Ajmal Associates 1/24

O R D E R

'Mohideen Andavar Tholugal Pallivasal' situate in Rameshwaram [Pin - 623 526] shall hereinafter be referred to as 'said Waqf'. 2.This Court is informed that said Waqf is a public waqf within the meaning of 'the Waqf Act, 1995 (43 of 1995)' which shall hereinafter be referred to as 'said Act' for the sake of convenience and clarity.

3.The case of the writ petitioner is that he was a part of the said Waqf but he was subsequently ostracized inter alia by respondents 5 to 9 [private respondents]. On the basis of such a complaint, writ petitioner has come up with captioned main writ petition with a prayer to Mandamus respondents 1 to 4 [official respondents] to take appropriate action against respondents 5 to 9 [private respondents] on the basis of a representation dated 26.06.2014 sent by the writ petitioner. To be noted, the representation as placed before this Court is dated 25.06.2014 and the same is as follows:

2/24

3/24

4/24

4.Counter affidavits have been filed by State as well as Tamil Nadu Waqf Board. The private respondents have not filed counter affidavits.

5.Mr.Naresh Prabhu, learned Counsel representing the Counsel on record for writ petitioner, Mr.M.Lingadurai, learned Special Government Pleader on behalf of respondents 1, 3 and 4, Mr.Mohamed Hashim learned Counsel representing learned Standing Counsel for Tamil Nadu Waqf Board on behalf of second respondent and Mr.Nawaz, learned Counsel of M/s. Ajmal Associates [Law Firm] on behalf of respondents 5 to 9 [private respondents] are before this virtual Court.

6.A careful perusal of the counter affidavits of the State and the Chief Executive Officer of Tamil Nadu Waqf Board bring to light that this appears to be a tussle inter alia for administration qua said Waqf between writ petitioner on one side and respondents 5 to 9 on the other side. It also comes to light that the counter allegation of respondents is the writ petitioner and some others started following a separate set of faith in Islam where the manner of prayer and ceremonies in the Waqf are different. It is also a further point that the writ petitioner and others have therefore formed a separate Jamath and they are functioning separately. The allegation that writ petitioner and others are functioning separately is denied by learned Counsel for writ petitioner. Writ petitioner also raises a question of use of burial ground.

This Court refrains itself from expressing any view or opinion on these disputations and disagreements as they turn heavily on facts. It would be appropriate to relegate the parties to the Tamil Nadu Waqf Tribunal, Chennai inter alia under Section 83 of said Act to have the issues arising in captioned writ petition thrashed out legally. 7.The aforesaid view of this Court is fortified by at least four case laws of Hon'ble Supreme Court.

8.The first case law is Subhan Shah's case being M.P. Waqf Board Vs. Subhan Shah reported in (2006) 10 SCC 696. In Subhan Shah's case, besides an issue pertaining to mutation of revenue records qua a mafi inayat land to a Dargah, muthawaliship was also in issue. In this fact setting Hon'ble Supreme Court laid down the ratio that said Act is a self-contained code. This is articulated in paragraph No.27 of the case law and the same reads as follows: 'The Wakf Act is a self-contained code. Section 32 of the 1995 Act provides for powers and functions of the Board. Sub-section (2) of Section 32 of the 1995 Act enumerates the functions of the Board without prejudice to the generality of the power contained in Sub-section (1) thereof. Clauses (d) and (e) of sub-section (2) of Section 32 of the 1995 Act reads as under:

"32.(2)(d) to settle schemes of management for a wakf: 5/24

Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; (e) to direct (i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf;

(ii) in what manner the income of a wakf, the object of which are not evident from any written instrument, shall be utilized;

(iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community: Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard.

Explanation.- For the purposes of this clause, the powers of the Board shall be exercised - (i) in the case of a Sunni wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia wakf, by the Shia members of the Board only:

Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause;"'

9.The second case law is Anis Fatma Begum's case law being West Bengal Waqf Board Vs. Ani Fatma Begum reported in (2010) 14 SCC 588 = (2012) 1 SCC (Civ) 773. In this case a disputation pertaining to Waqf estate and a Waqf nama arose. The disputation turned on the estate of Shahzadi Begum and the Wakifa is late Shahzadi Begum. The dispute turns on the property being demarcated / divided into two portions having 75% share for Wakf-al-al-aulad and 25% share for pious and religious purposes. It is not necessary to dilate further on facts. In this fact setting, Hon'ble Supreme Court held that any dispute, question or other matters relating to a Waqf or Waqf property can be decided by the Waqf Tribunal. It was also held that the Waqf Tribunal has the powers of a Civil Court under Section 83

(5) of said Act. There is also a caveat that matters should go at the first instance to the Waqf Tribunal under Section 83 rather than being entertained by a Civil Court or by the High Court under Article 226 in the writ jurisdiction. Relevant paragraphs are paragraph Nos.7 to 12 and the same read as follows: '7.However, in appeal, the Division Bench by the 6/24

impugned judgment has answered both the questions in the negative. Hence, this appeal.

8.It was submitted by Dr. Rajeev Dhawan, learned Senior Counsel appearing for the appellant, that only the Wakf Tribunal has jurisdiction in the matter under the Wakf Act, 1995 and hence the Suit filed in the High Court was without jurisdiction. We agree.

9.The dispute in the present case relates to a Wakf. 10.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 the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.

11.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 cases 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.

12.Section 83 (1) of the Wakf Act, 1995 states, "83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification if 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 or such Tribunals."

10.The observations made in paragraph No.14 are also of relevance and the same reads as follows:

'14.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), 7/24

then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.' 11.The third case law is Sham Singh Harike's case being Punjab Waqf Board Vs. Sham Singh Harike reported in 2019 SCC Online SC 142 . In Sham Singh Harike's case the issue was pertaining to whether certain extent of properties are Waqf properties. In this case Hon'ble Supreme Court noticed that there is cleavage in judicial opinion regarding jurisdiction of Waqf Tribunal qua various High Courts that this cleavage is noticed by Hon'ble Supreme Court in paragraph No.28 which reads as follows:

'28.This Court noticed in the aforesaid judgment that there is a cleavage in the judicial opinion expressed on the question of jurisdiction of Wakf Tribunal by the different High Courts in the country. The view of the Andhra Pradesh High Court, Rajasthan High Court, Madhya Pradesh High Court, Kerala High Court and Punjab and Haryana High Court has been noticed where High Courts have taken the view that jurisdiction of the Wakf Tribunal is wide enough to entertain and adjudicate upon all kinds of disputes which relate to any Wakf Property. The contrary view of the High Court of Karnataka, High Courts of Madras, Allahabad and Bombay was also noticed. This Court proceeded to examine the scheme of Wakf Act, 1995. After noticing the scheme of Sections 6, 7, 25 and other provisions with respect to Section 85 of the Act, following was stated by this Court in paragraphs 24 and 28:

"24. ............A plain reading of the above would show that the civil court's jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. The words "which is required by or under this Act to be determined by a Tribunal" holds the key to the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the civil court.

28. Section 85 of the Act clearly bars jurisdiction of the civil courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of the civil courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the civil court does not fall within the four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.""

8/24

12.Thereafter after a survey of the various views Hon'ble Supreme Court went on to interpret the expression 'any dispute, question or other matter relating to a Waqf or Waqf property' occurring in Section 83 of said Act. This has been articulated in paragraphs 36 and 37 which read as follows:

36. After noticing the provisions of Section 83 this Court held that words "any dispute, question or other matter relating to a Wakf or Wakf property" are words of wide connotation and any dispute, question or other matter whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. Following has been laid down in paragraph 10: "10. 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."

37. This Court also held that when there is special law providing for a special forum, then recourse cannot be taken to the general law. In paragraphs 14, 15 and 16 following was laid down:

"14. 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 (9th Edn., 2004, pp. 133-34).

15. In Chief Engineer, Hydel Project v. Ravinder Nath, (2008)2 SCC 350, this Court held that when the matter fell in the area covered by the Industrial Disputes Act, the civil court would have no jurisdiction. In the above decision the Court has referred to several earlier decisions on this point.

16. In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the civil court. However, in view of the decision of this Court in Sardar Khan v. Syed Najmul Hasan (Seth), (2007) 10 SCC 727, the Wakf Act will not be applicable to suits / appeals / revisions / proceedings commenced prior to 1-1-1996 when the Wakf Act came into force."' 9/24

13.To be noted in paragraph No.37 there is a clear reference to the earlier Anis Fatma Begum's case referred to supra. 14.The fourth case law is Rashid Wali Beg case reported in (2021) 8 MLJ 259 (SC) wherein factual matrix turned on whether certain properties are Waqf properties, Supreme Court made a survey of the provisions, set out the same by way of a tabulation and the most relevant paragraphs are paragraph Nos.31, 43 & 54 which read as follows:

'31. Some of the decisions of this Court, in which this controversy was addressed, are presented in the form of a table, for the purpose of easy appreciation. Apart from the cause title and citation, the table below gives an indication of the forum from which the original proceedings emanated in those cases, the reliefs sought by the plaintiff/applicant in those original proceedings and a summary of facts and the ratio laid down in each of them. 10/24

11/24

12/24

13/24

14/24

15/24

16/24

17/24

18/24

19/24

Paragraph No.43:

43. The various provisions of the Act which make a reference to the Tribunal and the subject matter in relation to which such a reference is made are presented in a tabular column as follows:- 20/24

21/24

22/24

Paragraph No.54:

54. It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).' 15.Reverting to the facts of the case on hand, there is no disputation that said Waqf is a public Waqf within the meaning of Section 3(r) of said Act. Therefore, there is no difficulty in saying that Section 83 of said Act applies to the case on hand. 16.

It is open to the writ petitioner to present his aforementioned representation in the form of an application inter alia under Section 83 of said Act before the Tamil Nadu Waqf Tribunal after arraying all concerned as co-applicants / respondents. If the writ petitioner chooses to do so, the Tamil Waqf Tribunal, Chennai will do well to take up the matter, hear all parties concerned and decide the matter on its own merits and in accordance with law. In other words this Court is relegating the parties to the Waqf Tribunal under said Act which is a selfcontained Code without expressing any view or opinion on the merits of the matter.

17.Captioned writ petition is disposed of with the above observations. There shall be no order as to costs. Sd/- Deputy Registrar (A/CS) // True Copy // / /2022 Sub Assistant Registrar(CS) MR NOTE: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

23/24

To 1.The Chief Secretary, Government of Tamil Nadu, St. George Fort, Secretariat, Chennai - 9.

2.The Chief Secretary, Tamil Nadu Waqf Board, Vallal Seethakathi Nagar, Chennai.

3.The District Collector, Ramnad District, Ramnad.

4.The Deputy Superintendent of Police, Rameshwaram, Ramnad.

+1 CC to M/s.AJMAL ASSOCIATES, Advocate ( SR-3892[F] dated 03/02/2022 ) +1 CC to M/s.SPL.GP ( SR-3939[F] dated 03/02/2022 ) ORDER MADE IN 01.02.2022 RS(17.02.2022) 24P-7C 24/24