Madras High Court

Rajiya Nachial vs The Union Territory Of Puducherry on 1 August, 2022

W.P.No. 8531 of 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01.08.2022

CORAM:

THE HONOURABLE Mr. JUSTICE N. ANAND VENKATESH

W.P.No. 8531 of 2008

Rajiya Nachial ... Petitioner
vs

1. The Union Territory of Puducherry
Puducherry State Wakf Board
Rep. by the Chief Executive Office
No.5, Yanam Venkatachalam Pillai Street,
Puducherry.

2. The Additional Secretary (Revenue)
cum Survey Commissioner of Wakfs
Puducherry.

3. The Deputy Collector (Revenue)
cum Assistant Survey
Commissioner of Wakfs
Puducherry

4. The Muthawalies of
Mohaideen Abdul Kader Jealani
Aandagai Pallivasal, rep. by its President
T.R. Pattinam, Karaikal ...Respondents

Prayer : Writ Petition filed under Article 226 of the Constitution of
India praying to issue a Writ, order or direction in the nature of a Writ of
Certiorari calling for the records of the 1st respondent herein in
connection with the notification issued under the Gazette of Puducherry
in Part I of Extraordinary dated 30.01.2008 and consequently quash the
said notification.
https://www.mhc.tn.gov.in/judis
1/16
W.P.No. 8531 of 2008

For Petitioner : Mr. T. Susindran

For R1 to R3 : Mrs. V.Usha
Additional Government Pleader (P)
For R4 : Mr. V. Raghavachari.

ORDER

This Writ Petition was filed challenging impugned notification

issued by the 1st respondent and which was published in the Gazette on

30.01.2008.

2. The case of the petitioner is that she is the absolute owner of the

subject properties and according to the petitioner, these properties were

acquired by her paternal grandmother in the year 1930. After the demise

of the grand mother, all her properties devolved on the father of the

petitioner. On the demise of her father, the petitioner and her mother

inherited the properties. Thereafter, the mother seems to have executed a

registered Release Deed on 19.12.1973 in favour of the petitioner and

released her share in the properties, thereby the petitioner is claiming to

be the absolute owner of the subject properties.

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

3. The further case of the petitioner is that the properties situated

in R.S. No.71/2, 71/2-A and 71/5 were under the occupation of his

tenant. In yet another property in R.S. No.72/2-B, there was a private

burial ground belonging to the family. The petitioner has stated that her

ancestors were buried in this burial ground and they have been

maintaining their tombs.

4. The grievance of the petitioner is that the 4th respondent seems

to have given a petition to the Hon'ble Chief Minister of Puducherry in

the year 2003 alleging that the predecessors of the petitioner had given

their properties to the 4th respondent Pallivasal and thus the properties

belong to the Pallivasal. This petition seems to have been forwarded for

further inquiry and ultimately, the 3rd respondent referred the petition to

the Tahsildar. TheTahsildar issued a notice to the petitioner on

12.07.2004 and directed the petitioner to appear for an enquiry and the

petitioner appeared during the enquiry and also submitted her

explanation and all the relevant documents. On 22.08.2007, the 1 st

respondent issued a registered letter to the petitioner stating that her

properties in Melapalli are Wakf properties and accordingly the

petitioner was directed to hand over the properties within 30 days. The https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

1st respondent, thereafter, issued the impugned notification dated

30.01.2008 in exercise of power under Section 5(2) of the Wakf Act,

1995 (herein after referred to as the "Act") declaring all the movable and

immovable properties of the petitioner as wakf properties. Aggrieved by

the same, the present Writ Petition was filed before this Court.

5. The 3rd respondent has filed a counter affidavit. The relevant

portions in the counter affidavit are extracted hereunder:

4. I submit that there have been complaints from members of the public and the member of Legislative Assembly from the Constituency that certain wakf properties are being exploited and have been held illegally by third parties and as they belong to this Pallivasal, action should be taken.

5. I submit that after verification, it was found that such items also form part of list of 201 items of properties.

Survey Commissioner of Wakfs, Statutory Authority under the Wakf Act was addressed vide the Wakf Board's letter dated 21.11.2000 with a request to conduct survey of all these properties alleged to be in unauthorised enjoyment by some vested interests. I submit that Deputy Collector

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

(Revenue) Karaikal, who was the Assistant Survey Commissioner (Wakf) Karaikal Region and competent authority to perform the function under the Wakf Act, conducted survey in accordance with Section 4 of Wakf Act 1995.

6. I submit that the petitioner was summoned by Tahsildar (Subordinate Authority to the Assistant Survey Commissioner Wakf) and was given adequate opportunity to present her case. The petitioner appeared through her counsel, furnished reply and submitted orally her case. I submit that the materials submitted by her did not establish any ownership of the properties covered by this Writ Petition. After the conclusion of the enquiry based upon conduct of survey, Assistant Survey Commissioner (Wakf) Karaikal reported that the properties at Melapalli Dargah belong to Mohideen Abdul Kader Jeelani Andagai Pallivasal, T.R.Pattinam. The said authority furnished survey report in the prescribed form and requested necessary action to publish the same in the official Gazette as per Section 5 of the Wakf Act 1995. The said Authority addressed to the Survey Commissioner (Wakfs), Pondicherry with a copy to the Wakf Board vide his letter No.3736/88/C3/Vol.II, dated 19.12.2006. I submit that the patta of the said properties were also transferred by Revenue Department, Karaikal vide Patta No.54 dated

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

17.11.2006 in favour of Wakf on the request of the Government.

7. I submit that in these properties, there is a Mosque with a Prayer Hall, where regular five times prayer is conducted, besides special congregation prayer on ID- occasions and Holy Saint Syed Abdul Rahman Sahib Valiyullah and Holy Saint Syed Abdul Kareem Sahib Valiyullah are laid in the Dargah. The survey report of the Assistant Survey Commissioner (Wakf) was examined by the Commissioner (Wakf) and it was approved by the Government and later communicated to the Wakf Board and the communication was under the I.D. Note No.13916/B2/Rev/2007 dated 30.01.2008. The Text of the letter is "In pursuance to Sec.5(1) of Wakf Act, the Government has accorded approval to forward the report of Survey Commissioner of Wakf in respect of the Wakf property located at R.S. No.72/2B, 71/2, 71/5, 72/2A and 72/2C of T.R. Pattinam Revenue Village belonging to Mohideen Abdul Kader Jeelani Andagai Pallivasal, T.R. Pattinam, Karaikal (Melapalli dargah).

It is therefore requested to take further actionfor the publication of the same in the official gazette as contemplated under Section 5(2) of the Wakf Act."

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

Therefore, it is clear that on necessary approval granted by the Government and communicated to Wakf, fulfilled requisite necessary statutory obligations as per the Wakf Act under Section 5(1) and the Wakf also published the list of the properties in Extraordinary Official Gazette as per Section 5(2) of the Wakf Act, 1995.

6. Heard Mr. T. Susindran, learned counsel appearing for the

petitioner, Mrs. V.Usha, learned Additional Government Pleader (P)

appearing on behalf of the respondents 1 to 3 and Mr.V. Raghavachari,

learned counsel appearing on behalf of the 4th respondent.

7. This Court has carefully considered the submission made on

either side and the materials available on record.

8. The main ground that was raised by the learned senior counsel

appearing on behalf of the petitioner is that there has been a complete

violation of the mandatory requirement under Section 4(3) and 4(4) of

the Act. To appreciate the same, the relevant provisions are extracted

hereunder.

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

4. Preliminary survey of (auqafs) - (1) ----

(1-A)----

(2)----

(3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of (auqafs) existing at the date of the commencement of this Act in the State or any part thereof, to the State Government containing the following particulars, namely:-

(a) the number of (auqafs) in the State showing the Shia (auqafs) and Sunni (auqafs) separately;

(b) the nature and objects of each (waqf);

(d) the amount of land revenue, cesses, rates and taxes payable in respect of each (waqf);

(e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each (waqf); and

(f) such other particulars relating to each (waqf) as may be prescribed.

(4) The Survey Commissioner shall, while making any inquiry, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely;-

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

(a) summoning and examining any witness;

(b) requiring the discovery and production of any document;

(d) issuing commissions for the examination of any witness or accounts;

                                        (e)    making    any   local   inspection   or    local
                                  investigation;

(f) such other matters as may be prescribed.

9. A careful reading of the above provisions shows that a

preliminary inquiry should be conducted only by the Survey

Commissioner. At the time of making such an inquiry, the Survey

Commissioner has been vested with the powers of Civil Court with

respect to the matters that have been enlisted under Sub Section 4.

Therefore, the Survey Commissioner cannot delegate this power to any

other authority and even if the Survey Commissioner directs any other

authority to make the inquiry, the report received from such authority

must be considered by the Survey Commissioner and the Survey

Commissioner must independently apply his mind before submitting the

report to the State Government. It is only thereafter, the Government

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

will forward a copy of the report of the Survey Commissioner to the

Board and the Board will examine the report and send it back to the

Government and thereafter, the notification is issued by publishing the

list of properties as belonging to the Wakf.

10. On carefully going through the records, it is seen that as per the

notification that was published in the Gazette on 12.09.1983, the subject

properties do not find part in the said notification. It is the Tahsildar,

Karaikal, who calls for an inquiry in this case and he was the one who

actually conducted the inquiry. The same is clear from the counter

affidavit that has been filed by the 3rd respondent. After the conclusion

of the inquiry, the Tahsildar, through letter dated 26.04.2005, addressed

to the Settlement Officer of the Directorate of Survey and Land Records,

suggested for the cancellation of the patta that stands in the name of the

petitioner with respect to the subject properties.

11. Before the inquiry was conducted by the Tahsildar, it is seen

from records that a question was raised in the Assembly by a Member of

the Legislative Assembly with regard to the administration of the

Melapalli dargah. On such questioning that was made in the Assembly, https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

the issue escalated and resulted in the Tahsildar issuing a letter to the

Settlement Officer. Thereafter, the Assistant Survey Commissioner of

Wakf, through letter dated 25.09.2006, informs the Government that the

Wakf properties belonging to the 4th respondent pallivasal were changed

in the revenue records and it was standing in the name of the petitioner.

Hence, the concerned authority had requested the Government to take

appropriate action in this regard.

12. It is clear that the 3rd respondent, who was mandated to conduct

the inquiry under Section 4(3) of the Act, merely acted as a post office

and he seems to have collected the report from the Tahsildar and handed

it over to the Government and the Government had proceeded to issue

the impugned notification and published the same in the Gazette by

declaring all the movable and immovable properties of the petitioner to

be Wakf properties. Before this process was undertaken, the

Government had placed the file before the Wakf Board and the Board

had also passed a resolution in this regard on 03.02.2007.

13. The illegality that has been taken place in the present case is

apparent even at the inception. The basis for the Government to https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

recommend to the Wakf Board and thereafter issue the notification and to

publish the notification under Section 5 of the Act, is the inquiry to be

conducted by the Survey Commissioner and the report submitted by the

said authority. If this mandate is not fulfilled, all the subsequent events

will also fail and the Board passing a resolution and the Government

thereafter publishing the notification will not validate the initial illegality

that was committed by the 3rd respondent who failed to comply with the

requirements of Section 4(3) of the Act.

14. The learned counsel appearing on behalf of the respondents,

during the course of arguments, also raised the issue of maintainability of

this Writ Petition and it was submitted that the petitioner ought to have

challenged the notification published by the 1st respondent only before

the Wakf Tribunal. In the considered view of this Court, where an order

suffers from lack of authority or infraction of the statutory provision, the

availability of an alternative remedy will not stand in the way of this

Court exercising its jurisdiction under Article 226 of the Constitution of

India.

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

15. This Court, in order to satisfy itself as to whether the 3 rd

respondent, namely the Survey Commissioner, actually called the

petitioner for an enquiry and thereafter, submitted the report, directed the

learned Additional Government Pleader to produce the relevant records.

The learned Additional Government Pleader submitted that the records

are not available and hence this Court should act on the ipse dixit of the

stand taken by the 3rd respondent in the counter affidavit. The stand

taken by the 3rd respondent in the counter affidavit must be read along

with the materials available on record. There is absolutely no doubt in

the mind of this Court that it is only the Tahsildar who had conducted the

inquiry in this case. The same is clear from the communication dated

25.09.2006 issued by the 3rd respondent to the Government. In the said

communication, in the reference column, the 3rd respondent has merely

referred to the report of the Tahsildar, Karaikal, dated 26.04.2005. It is

only for this reason, this Court commented that the 3rd respondent merely

acted as post office in this case. There is nothing to show that the 3 rd

respondent, on receiving the report from the Tahsildar, proceeded further

to fulfill his obligation under Section 4(3) of the Act. The combined

reading of Section 4(3) and 4(4) shows that the 3rd respondent has been

mandated to follow certain procedure and if the same is not followed, the https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

entire action becomes illegal. It is a basic principle of law which is well

settled to the effect that a particular act prescribed under the statute to be

performed in a particular manner has to be done in that manner or not at

all. Useful reference can be made in this regard to the judgments of the

Hon'ble Supreme Court in Deep Chand vs. State of Rajasthan reported

in AIR 1961 SCC 1527 and Sri Parameshwari Prasad Gupta vs. Union

of India reported in 1973 2 SCC page 543.

16. Applying the above principle, this Court can reach the

conclusion without any hesitation that the 3rd respondent has failed to

fulfill the mandate under the Act and hence, the report of the 3rd

respondent, which formed the basis for the Board to pass a resolution and

the Government to publish a notification must also be held to be illegal.

17. In view of the above discussion, the impugned notification that

was published in the Gazette by the 1st respondent on 30.01.2008 is liable

to be interfered by this Court and the same is hereby quashed. The matter

is remitted back to the file of the 3rd respondent and the 3rd respondent is

directed to issue a fresh notice to the petitioner and fulfill the procedure

as contemplated under Section 4(3) of the Act. Depending upon the https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

report of the 3rd respondent, the further proceedings will follow as

contemplated under the Act.

In the result, this Writ Petition is allowed with the above direction.

No costs.

02.08.2022

Internet : Yes / No Index: Yes / No Speaking order / Non speaking order Bga

1. The Union Territory of Puducherry Puducherry State Wakf Board Rep. by the Chief Executive Office No.5, Yanam Venkatachalam Pillai Street, Puducherry.

2. The Additional Secretary (Revenue) cum Survey Commissioner of Wakfs Puducherry.

3. The Deputy Collector (Revenue) cum Assistant Survey Commissioner of Wakfs Puducherry

4. The Muthawalies of Mohaideen Abdul Kader Jealani Aandagai Pallivasal, rep. by its President T.R. Pattinam, Karaikal

https://www.mhc.tn.gov.in/judis

W.P.No. 8531 of 2008

N. ANAND VENKATESH, J.

bga

W.P.No. 8531 of 2008

02.08.2022

https://www.mhc.tn.gov.in/judis