Madras High Court
O.M.A.Udhuman Mydeen vs The Chief Executive Officer on 24 February, 2022
W.P. (MD) No.3791 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On 28.03.2022
Pronounced On 01.04.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.(MD) No.3791 of 2022
and
W.M.P. (MD) Nos.3298 & 3299 of 2022
O.M.A.Udhuman Mydeen ... Petitioner
Vs.
1.The Chief Executive Officer,
The Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Sethakathi Nagar,
Chennai – 600 001.
2.The Inspector of Waqf,
54, High Road,
Tirunelveli District.
(Now was Tenkasi District)
3.O.M.S.Hasan Maghoom Alim ... Respondents
Writ Petition filed for issuance of a Writ of Certiorari, to call for
the entire records pertaining to the impugned notice passed by the first
respondent vide her proceedings Ref.No.R.C.No.6211/12/B1/TNV, dated
24.02.2022 and quash the same.
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W.P. (MD) No.3791 of 2022
For Petitioner : Mr.Issac Mohanlal, Senior Counsel
for Mr.Niranjan S. Kumar
For R1 & R2 : Mr.G.Chandrasekar
For R3 : Mr.T.S.Mohammed Mohidheen
ORDER
In this Writ Petition, the petitioner O.M.A. Udhuman Mydeen has
challenged the impugned notice dated 24.02.2022 of the first respondent
Chief Executive Officer, Tamil Nadu Wakf Board. By the impugned
notice dated 24.02.2022, the petitioner herein and others including the
third respondent herein O.M.S.Hasan Magdhoom Alim have been called
to appear before the first respondent Chief Executive Officer, Tamil
Nadu Wakf Board with all relevant documents in their possession, failing
which, the matter will be decided in their absence.
2. The dispute in this Writ Petition pertains to Naina Mohammed
Periya Kuthuba Pallivasal. The petitioner's and the third respondent's
paternal grandfather namely, O.M.S.Syed Masood Alim Sahib was the
Hereditary Mutawalli of three Wakfs, namely (i) Syed Masood Nayagam
Darga, (ii) Uduman Labbai Shiek Taikkal and (iii) Naina Mohammed
Periya Kuthuba Pallivasal. Present dispute pertains to Naina Mohammed
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W.P. (MD) No.3791 of 2022
Periya Kuthuba Pallivasal. After his death in 1985, a dispute arose as to
who would be the Mutawalli of the respective Wakfs.
3. The third respondent's father namely, O.M.S.Sheik Udhuman
Alim Sahib (father of the third respondent) the elder son of O.M.S.Syed
Masood Alim Sahib was made as Mutawalli of Syed Masood Nayagam
Darga and Uduman Labbai Shiek Taikkal, whereas the petitioner's father
namely, O.M.S.Abdul Basith Alim Sahib (father of the petitioner) the
younger son of O.M.S.Syed Masood Alim Sahib was made as Mutawalli
of Naina Mohammed Periya Kuthuba Pallivasal by the Wakf Board, by
its order dated 09.02.1985. The petitioner's father namely, O.M.S.Abdul
Basith Alim Sahib passed away on 22.05.2012 and the third respondent’s
father namely, O.M.S.Sheik Udhuman Alim Sahib passed away in 2014.
4. After the younger son of O.M.S.Syed Masood Alim Sahib
namely, O.M.S.Abdul Basith Alim Sahib (the father of the petitioner)
was appointed as Mutawalli of Naina Mohammed Periya Kuthuba
Pallivasal, there was a power struggle between the two brothers who are
the sons of O.M.S.Syed Masood Alim Sahib namely, O.M.S.Sheik
Udhuman Alim Sahib and O.M.S.Abdul Basith Alim Sahib.
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W.P. (MD) No.3791 of 2022
5. As per the proforma of the Naina Mohammed Periya Kuthuba
Pallivasal, the succession to the office of the Mutawalli is the Hereditary
according to Custom. Similarly, succession to the office of the Syed
Masood Nayagam Darga is also Hereditary according to the Custom.
6. The third respondent’s father namely, O.M.S.Sheik Udhuman
Alim Sahib therefore filed a petition before the Wakf Board, Chennai in
Rc.No.3886/C6/TNV/83 against his younger brother O.M.S.Abdul Basith
Alim Sahib (the father of the petitioner), to set aside the order of the
Wakf Board pending appointing the petitioner's father O.M.S.Abdul
Basith Alim Sahib as Mutawalli of Naina Mohammed Periya Kuthuba
Pallivasal and to approve the third respondent’s father O.M.S.Sheik
Udhuman Alim Sahib as sole Hereditary Mutawalliship of the Wakfs.
7. The Wakf Board by its proceedings dated 09.02.1985 appointed
the petitioner's father O.M.S.Abdul Basith Alim Sahib as Mutawalli of
the Naina Mohammed Periya Kuthuba Pallivasal and the third
respondent’s father O.M.S.Sheik Udhuman Alim Sahib as Mutawalli of
the Syed Masood Nayagam Darga. The operative portion of the order
reads as under:-
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W.P. (MD) No.3791 of 2022
As regard the claim to the office of the
Muthawalliship for the other two Wakfs namely
Nainar Mohamed Periya Kuthba Pallivasal and
Syed Masood Nayagam Durgah, we proceed to
consider the respective claims of the two brothers.
Though the rule of succession is hereditary
according to custom, it is not the case that the eldest
son O.M.S.Sheik Uduman Alim Sahib that to is
entitled to be appointed as Muthawalli for all the
three wakfs is not sustainable. The younger brother
Addul Basith is a lalfiz that is to say he knows the
Holy Kuran by heart and he is also holding a
diploma from the Madharsha of Lalpet, we,
therefore appoint Janab Abdul Basith as the
Muthawalli for Nainar Mohamed Periyakuthba
Pallivasal. His claim to the office of the Masood
Nayagam Durga is rejected. Mr.O.M.S.Abdul
Basith Alim Sahib will run the Mosque with the
income from the land belonging to the wakf
property and from public contribution.
The other wakf Syed Masood Nayagam
Durgah is running a High School under the name of
Masood Thulka High School, Janab O.M.S.Sheik
Uduman Labbai is now the correspondent of this
school. We, are therefore inclined to appoint Janab
Sheik Uduman Labbai Alim Sahib as Muthawalli of
the wakf known as Syed Masood Nayagam Durgah.
Accordingly, Janab Sheik Uduman Labbai Alim
Sahib is appointed as Muthawalli for the wakf
known as “Syed Masood Nayagam Durgah”.
8. Aggrieved by the said order, the third respondent's father
O.M.S.Sheik Udhuman Alim Sahib filed W.P.No.1575 of 1985 before
this Court challenging the appointment of the petitioner’s father
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W.P. (MD) No.3791 of 2022
O.M.S.Abdul Basith Alim Sahib as Mutawalli of Naina Mohammed
Periya Kuthuba Pallivasal. The said Writ Petition was allowed.
Aggrieved by the said order, the petitioner’s father O.M.S.Abdul Basith
Alim Sahib filed W.A.No.848 of 1986 before the Division Bench of this
Court. The Division Bench by its Judgment dated 27.07.1989 gave right
to the third respondent’s father O.M.S.Sheik Udhuman Alim Sahib to file
a suit within one month from the date of the order with the following
observations:-
By consent, the following order is passed
since the question to be decided in the case is
whether the custom of hereditary succession by
primogeniture would apply to the wakf in question.
No doubt, under Sec.42 of the Wakf Act, the Wakf
Board was of the view that on the death of the
previous Muthawalli, there were as many vacancies
which are three in this case, out of which, we are
presently concerned with only two. If really the Rule
of Primogeniture is applied, one sat of consequence
would follow and if it is not established, the other
consequences would follow. In these circumstances,
we are of the view that though there are allegations
to this effort in the affidavit filed in support of the
writ petition, that has been denied by the second
respondent (the present appellant) in paragraph 11
of the counter affidavit. Therefore, the disputed
duration of fact as to the custom of primogeniture
had to be established in a Civil Suit.
We direct the first respondent – writ petitioner
to file a suit within one month from today. As and
when such a suit is filed, it shall be disposed of with
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W.P. (MD) No.3791 of 2022
utmost expedition, preferably within nine months
from the date of filing of the suit. The Status Quo as
on today shall prevail till the disposal of the suit.
Till then, the Wakf Board shall stay off its hands
concerning the appointment of Muthawalli.
We make it clear that we have not expressed
any opinion on the merits of the case.
9. Thus, the petitioner's father O.M.S.Abdul Basith Alim Sahib
was allowed to continue as the Mutawalli of Naina Mohammed Periya
Kuthuba Pallivasal. Pursuant to the above order, the third respondent's
father O.M.S.Sheik Udhuman Alim Sahib filed O.S.No.138 of 1989
before the Sub Court, Tenkasi for a declaration that the appointment of
Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal should be
based on primogeniture and for a permanent injunction to restrain the
petitioner's father and other persons from officiating and to allow the
third respondent’s father O.M.S.Sheik Udhuman Alim Sahib as
Mutawalli of said Naina Mohammed Periya Kuthuba Pallivasal. The Sub
Court by its Judgment and Decree dated 05.08.1993 framed the following
issues:-
i.gpuhJ jgrpy; gs;spthrYf;F guk;giuapy; %j;j Mz;
kfd; gjtp mila Ntz;Lnkd;w Kiwapy; (legal
Primogeniture by custom) Kj;jty;yp gjtp tfpf;fg;gLk;
vd;w thjp fl;rp nra;tJ rupah? MJ rl;l rk;ge;jkhdjh?
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W.P. (MD) No.3791 of 2022
ii.nrq;Nfhl;ilchpikapy; ePjpkd;w K.c.t.128/6 y;
Vw;gl;l jPHg;gpd; Ngupy; jpUney;Ntyp khtl;l
ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;l Nk.K.122/62 y;
gpwe;j jPHg;gpd; gb thjp ,t;tof;if jhf;fy; nra;a Kuz;
jilgl;Ls;shH vd;gJ rupah?
iii.Thjp jhth gs;spthrYf;F thhPRg;gb Kj;jty;yp vd;gJ
rhpah?
iv.kw;w ,U gs;spthry; rk;ge;jkhf ghpfhuk; Nfhhp
jhth gs;spthry; rk;ge;jkhf kl;Lk; tof;F jhf;fy;
nra;jpUf;Fk; tbtj;jpy; epiyf;fj;jf;fjh?
v.tof;F Njitahd jug;gpdiu fl;rp NrHf;fhj
Fiwghl;bw;Fs;sjhfpwjh?
vi.tf;G thhpaj;jpw;F mwptpf;if ,y;yhj epiyapy;
Nkw;gb tof;F nry;yf;$bajh?
vii.,t;tof;fpy; thjpf;F fpilf;f$ba ghpfhuk; vd;d?
10. Before the Sub Court, the third respondent's father
O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) had stated that their
father O.M.S. Syed Masood Alim Saheb before his death wished that the
third respondent's father O.M.S.Sheik Udhuman Alim Sahib (the
plaintiff) be appointed as the Mutawalli and had reduced the same in
writing. However, the third respondent's father O.M.S.Sheik Udhuman
Alim Sahib (the plaintiff) did not file the same before the Court and
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W.P. (MD) No.3791 of 2022
therefore, the contention of the third respondent's father O.M.S.Sheik
Udhuman Alim Sahib (the plaintiff) was rejected by the Sub Court as not
proved.
11. The Sub Court further concluded that in respect of the founder
of the Pallivasal, there were several contradictions in the Exhibits filed by
the parties and therefore, the prayer of the third respondent's father
O.M.S.Sheik Udhuman Alim Sahib (the plaintiff) that the appointment of
Mutawalli of the Pallivasal based on the primogeniture was incorrect.
The Sub Court thus dismissed the said suit.
12. The said decision was taken on further appeal in A.S.No.1024
of 1993 before this Court by the third respondent's father O.M.S.Sheik
Udhuman Alim Sahib (the plaintiff) during his life time. The said Appeal
filed by the third respondent's father O.M.S.Sheik Udhuman Alim Sahib
(the plaintiff) was also dismissed as both the sons of O.M.S.Syed Masood
Alim Saheb namely, the father of the respective petitioner and the third
respondent, died by then. The petitioner's father O.M.S.Abdul Basith
Alim Sahib died on 22.05.2012 and the third respondent's father
O.M.S.Sheik Udhuman Alim Sahib died on 28.06.2014.
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13. The subsequent attempt by the petitioner and his brother
O.M.A.Dhanaullah in C.M.P. (MD) No.886 of 2021, to restore the
A.S.No.1024 of 1993 was also dismissed by this Court by an order dated
26.02.2021 with the following observations:-
4. Admittedly, the suit is instituted as per the
direction of the Division Bench. However, the
suit got dismissed. As against which, the appeal
suit has been filed and since the appellant died
and no steps have been taken, the Appeal suit
was also dismissed as abated. As the challenge
in the main suit is as against the order of the
Wakf Board of the year 1985 and the same got
dismissed, it goes without saying that the wakf
Board order stands revived.
14. Meanwhile, the petitioner officiated as the Mutawalli of Naina
Mohammed Periya Kuthuba Pallivasal for the period between 22.05.2012
and 28.06.2014 as his father died on 22.05.2012. However, on
27.06.2014, the Wakf Board appointed the third respondent O.M.S.Hasan
Magdhoom Uduman Alim as the Mutawalli of Naina Mohammed Periya
Kuthuba Pallivasal, for a term of three years between 25.06.2014 and
24.06.2017 under Section 63 of the Wakf Act, 1995. The appointment of
the petitioner was an interim arrangement. Under these circumstances,
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the petitioner filed W.P.(MD)No.12143 of 2014, which came to be
allowed on 29.04.2016. The above Writ Petition filed by the petitioner
was allowed on the ground that the impugned order therein was based on
a Resolution dated 21.08.2013 which was not existing and that it was
passed after the orders were reserved. Paragraph 7 of the order dated
29.04.2016 in W.P.(MD)No.12143 of 2014 reads as under:-
7.On a careful perusal of the order of the
Wakf Board, there also it is very clearly stated
that the order was reserved on 21.08.2013 and it
was pronounced only on 25.06.2014. Therefore,
the taking over of the management on
27.06.2014 citing the order dated 21.08.2013 or
a resolution dated 21.08.2013 is not correct. In
any view of the matter, the Wakf Board has also
stated that it is only an interim arrangement
pending disposal of the appeal. Therefore,
suffice to state that as I have rightly pointed
out, this will not affect the rights of the parties
and the parties will abide by the civil court
order which is also already declared by the
Division Bench judgment. As the first appeal is
pending, the parties will abide by the result of
the first appeal. Hence, the impugned order is set
aside. Accordingly, the Writ Petition is allowed.
No costs. Consequently, the connected
miscellaneous petitions are closed.
15. Thus, the petitioner once again became entitled to the post of
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W.P. (MD) No.3791 of 2022
Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal. Aggrieved by
the said order, both the Wakf Board and the third respondent filed W.A.
(MD)Nos.865 and 866 of 2016 respectively before the Division Bench.
The Writ Appeals were dismissed by the Division Bench of this Court on
22.03.2018. While dismissing W.A.(MD)No.865 of 2016 filed by the
Wakf Board and W.A.(MD)No.866 of 2016 filed by the third respondent
herein, the Division Bench by its common judgment dated 22.03.2018
observed as follows:-
20. This Court taking into consideration of
the fact that the appellant in W.A(MD)No.866 of
2016 is acting as Muthavalli in respect of 'Syed
Masood Nayagam Dharga', Therku Ayyapuram,
Kadayanallur, is of the considered view that till
the proceedings takes place, as to the
appointment of permanent Muthavalli, in
respect of 'Naina Mohammed Peria Kuthba
Pallivasal', Peria Street, Kadayanallur, the first
respondent in both the Writ Appeals/writ
petitioner, is to be continued as temporary
Muthavalli in respect of 'Naina Mohammed
Peria Kuthba Pallivasal', Peria Street,
Kadayanallur and it is also made clear that it is
also subject to the result of A.S.No.1024 of
1993.
21. This Court would also make it clear
that de horse this order, it is always open to the
appellant in W.A(MD)No.865 of 2016, namely,
Tamil Nadu Wakf Board, to exercise its powers
in terms of the Wakf Act, 1995 and the Rules
framed thereunder, as to the office of
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Muthavalliship in respect of 'Naina Mohammed
Peria Kuthba Pallivasal', Peria Street,
Kadayanallur as well as 'Syed Masood Nayagam
Dharga', Therku Ayyapuram, Kadayanallur.
16. Thus, the appointment of the petitioner was only temporary and
not permanent. In the light of the above order, on 05.07.2018, the Wakf
Board once again appointed the third respondent as Mutawalli of Naina
Mohammed Periya Kuthuba Pallivasal.
17. Under these circumstances, the petitioner once again filed W.P.
(MD)No.16615 of 2018. The said Writ Petition was allowed by this
Court by its order dated 30.08.2018 with the following observations:-
24.As held in preamble to this order, a
singular issue which is placed for consideration
before this Court is whether the impugned
action of the first respondent in appointing the
second respondent as Muthavalli to the Kuthba
Pallivasal can be countenanced in law and on
facts. In the teeth of the specific direction of
this Court, in two orders namely, order dated
27.07.1989 passed in W.A.No.848 of 1986 and
the order dated 22.03.2018 passed in
W.A(MD)Nos.865 and 866 of 2016,
particularly, in paragraph 20 and also the
dismissal of the suit in O.S.No.138 of 1989 filed
by the second respondent and the pendency of
A.S.No.1024 of 1993 before this Court as
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against the dismissal of the suit, the entire
adjudication of the issue before this Court is to
be confined only to those three specific events,
which would decide the issue in one way or the
other in respect of rival claim of both the
petitioner as well as the second respondent in
regard to appointment of Muthavalli to the
Kuthba Pallivasal.
25.From the pleadings and materials
placed on records, it could be seen that
originally the Division Bench of this Court
allowed the writ appeal in W.A.No.848 of 1986
on 27.07.1989 by directing the parties to appear
before the Civil Court and ordered status quo to
be maintained till the decision of the suit. By
which direction by the Hon'ble Division Bench,
the petitioner's father was allowed to act as
Muthavalli of Kuthba Pallivasal on the basis of
his original appointment by the Wakf Board on
09.02.1985. As rightly contended by the learned
Senior Counsel appearing for the petitioner,
though the suit filed by the second respondent
has been dismissed, against which, the appeal in
A.S.No.1024 of 1993 was filed and the same is
pending before this Court even as on date, which
means that the civil proceedings has not attained
finality and hence, the status quo ordered by the
Division Bench of this Court in the afore-said
writ appeal would have to be continued, unless
and until the inter se claim is finally decided by
the civil Court the question of disturbing the
status quo by the Wakf Board does not arise,
particularly, in appointing the second
respondent as Muthavalli of the Kuthba
pallivasal by displacing the petitioner. Such
action on the part of the Wakf Board is in
violation of the specific direction passed by the
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W.P. (MD) No.3791 of 2022
Hon'ble Division Bench of this Court dated
27.07.1989.
26.Moreover, the second respondent, who
has approached the civil Court in O.S.No.138 of
1989 to declare him as Muthavalli for the
Kuthba Pallivasal having failed to obtain any
decree cannot get himself appointed as
Muthawalli for the said Pallivasal by the
proceedings of the first respondent Wakf Board.
Such appointment in the opinion of this Court is
a clear attempt to circumvent the pending
litigation and certainly such appointment would
upset the status quo order passed by the Division
Bench of this Court. Once the second respondent
has chosen to approach the civil Court for
enforcement of his right for his appointment of
Muthavalli to Kuthba Pallivasal and until the
civil proceedings is finally concluded, the
question of his appointment would not arise at
all. In all fairness, the Wakf Board ought to have
waited for the outcome of the civil proceedings,
which is pending before this Court, even as on
date. Only in such circumstances, the earlier
attempt by the Wakf Board appointing the second
respondent as Muthavalli of Kuthba Pallivasal
vide order dated 27.06.2014 was
discountenanced by this Court in the order dated
29.04.2016 in W.P(MD)No.12143 of 2014. In
fact, such order was clearly illegal as the
petitioner was allowed to assume office after the
death of his father in 2012 and he acted as such
since 28.06.2014. This Court is unable to
appreciate as to why the Wakf Board has
suddenly decided to appoint the second
respondent as Muthavalli for the Kuthba
Pallivasal.
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27.In any event, the said appointment was
put to challenge in W.P(MD)No.12143 of 2014
by the writ petitioner and the writ petition was
allowed and the order of the Wakf Board dated
27.06.2014 was set aside. Thereafter, the writ
of 2014 both by the Wakf Board and by the
second respondent and the Division Bench of
this Court in the order passed on 22.03.2018 has
clearly concluded in favour of the petitioner
herein in paragraph 20 of the Judgment as
extracted supra. Although much reliance has
been placed in paragraph 21 of the Judgment of
the Division Bench by the counsel appearing for
the first respondent, from the entirety of the
order passed by this Court, this Court has
necessary come to inexorable conclusion that the
Division Bench of this Court has favoured
continuance of the petitioner as Muthavalli for
the Kuthba Pallivasal. However, liberty was
given to the Wakf Board to exercise its power, as
per the provisions of Wakf Act, 1995, but it did
not mean that such power could be exercised in
violation of the direction as contained in
paragraph 20 of the Judgment. In fact, in
paragraph 20 of the Judgment, the Hon'ble
Division Bench made it very clear that the
petitioner has to be continued as Muthavalli in
respect of the Kuthba Pallivasal subject to the
result of the appeal in A.S.No.1024 of 1993.
When such clear direction is given and A.S.No.
1024 of 1993 has still not attained the finality,
this Court finds that the impugned action of the
first respondent, dated 05.07.2018, in appointing
the second respondent as Muthavalli for the
Kuthba Pallivasal is contrary to the direction
passed by the Division Bench of this Court and
therefore, the same has to be held as illegal and
unsustainable. As regards the principal
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W.P. (MD) No.3791 of 2022
submission made on behalf of the first
respondent that the appointment of Muthavalli is
not hereditary, this Court is of the view that such
contention does not really upset the claim of the
petitioner herein in view of the order passed by
the learned single Judge of this Court in favour
of the petitioner in W.P(MD)No.12143 of 2014
dated 29.04.2016 and also the dismissal the writ
appeal, in W.A(MD)Nos.865 and 866 of 2016.
Once the Court recognized the appointment of
the petitioner as Muthavalli for the Pallivasal
and granted seal of approval de-hors the legal
provisions whether the appointment is hereditary
or not, the petitioner has to be continued in
terms of the ruling of the single Judge as well as
the Division Bench of this Court. Further, as
regards the qualification of the second
respondent vis-a- vis, the petitioner for the
appointment as Muthavalli, the learned counsel
appearing for the first respondent did not draw
any specific reference to the provisions of the
Wakf Act as what qualification is prescribed for
appointment as Muthavalli for Pallivasal and
Dargah. In any event, it is the submission of the
learned Senior Counsel for the petitioner that the
petitioner also in possession of all the required
qualifications for appointment as Muthavalli and
such submission has not been seriously disputed
by the respondents. That being the case, even
this Court is of the view that the petitioner is
deemed to be qualified for continuance as
Muthavalli for the Pallivasal.
28.Finally, in regard to the objection as to
the maintainability of the writ petition on the
ground that the resolution dated 19.06.2018 has
not been challenged and it is only the
consequential order dated 05.07.2018 alone is
challenged and as per the Section 83 the Wakf
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W.P. (MD) No.3791 of 2022
Act, an effective and alternative remedy is
provided and non-exhaustion of the same would
be fatal to the present proceedings is concerned,
this Court is of the considered view that even in
the earlier proceedings initiated by the
petitioner, it is only the order passed by the Wakf
Board, which was put to challenge and not
resolution which proceeded such action.
29.The learned Senior Counsel appearing
for the petitioner submitted that the resolution,
dated 19.06.2018, has not been made available
and therefore, the subsequent communication
dated 05.07.2018, is challenged and there is
nothing wrong in such challenge by the
petitioner.
30.As regards the availability of effective
and alternative remedy under Section 83 the
Wakf Act, as rightly contended by the learned
Senior Counsel for the petitioner that the entire
issue hinges on the implementation of the order
passed by the Hon'ble Division Bench of this
Court, dated 22.03.2018, in W.A(MD)Nos.865
and 866 of 2016. While that being the case, the
question of approaching the Wakf Tribunal
under Section 83 the Wakf Act does not arise at
all. In the facts and circumstances of the present
case, it is not necessary for the petitioner to
approach the Wakf Tribunal, since the order
impugned in the present writ petition is contrary
to the specific direction passed by this Court
of 2016. Therefore, in such scenario, it is not fair
and proper to drive the petitioner to resort to
alternative remedy available under the scheme of
the Wakf Act. The Hon'ble Supreme Court has
held consistently that in extraordinary
circumstances, the writ petition can be
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W.P. (MD) No.3791 of 2022
entertained without compelling the party to
resort to alternative remedy provided under
various statutes. This Court is of the view that in
the instant case, the facts and circumstances
warrant direct intervention of this Court and the
objection raised on behalf of the respondents on
this ground is liable to be rejected, as being
without any merits.
31.For the above reasons, this Court find
that the petitioner has made out a clear case for
relief and hence, impugned order passed by the
first respondent in Ref.No.CHE.MU.AANAI.No.
6211/12/A1/TVELI dated 05.07.2018 is hereby
quashed. There shall be a consequential
direction to the first respondent to pass
appropriate order appointing the petitioner as
Muthavalli for the Kadayanallur Naina
Mohammed Periya Kuthba Pallivasal, till the
disposal of A.S.No.1024 of 1999 pending on the
file of this Court in furtherance of the direction
of the Division Bench of this Court dated
22.03.2018 in W.A(MD)Nos.865 and 866 of 2016
as found in the paragraph 20 of the Judgment,
which is reproduced supra. The Consequential
order is directed to be passed by the first
respondent, within a period of four weeks from
the date of receipt of a copy of this order.
With the above direction, this Writ Petition
is allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
18. When the above Writ Petition was filed, the third respondent's
father O.M.S.Sheik Udhuman Alim Sahib had also died on 28.06.2014
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W.P. (MD) No.3791 of 2022
which was not brought to the attention of this Court. Aggrieved by the
same, once again, Writ Appeals were filed by both the Wakf Board and
the third respondent herein in W.A.(MD)Nos.1468 and 1707 of 2018,
respectively. These writ appeals were dismissed on 23.10.2019. The
further appeal to the Hon'ble Supreme Court in S.L.P.(C) No.5767 of
2020 by the third respondent herein was also dismissed on 20.02.2020
while granting liberty to the third respondent to take necessary steps for
disposal of the appeal pending before this Court in A.S.No.1024 of 1993.
19. Since both the plaintiff and the defendant namely, the third
respondent's father and the petitioner's father, died by then, the appeal in
A.S.No.1024 of 1993 had abated automatically. It was however later
dismissed on 21.12.2020 as having abated. Neither the petitioner nor the
third respondent informed the Hon'ble Supreme Court that on 20.05.2020
when the order was passed, A.S.No.1024 of 1993 had already abated as
the third respondent's father and the petitioner's father died who were the
plaintiff and defendant in O.S.No.138 of 1989 and the appellant and the
respondent in A.S.No.1024 of 1993.
20. Though W.A.(MD)Nos.1468 and 1707 of 2018 were dismissed
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W.P. (MD) No.3791 of 2022
on 23.10.2019, the petitioner was not appointed as Mutawalli of Naina
Mohammed Periya Kuthuba Pallivasal. Therefore, the petitioner filed
Cont.P.(MD)Nos.238 and 239 of 2020 in W.A.(MD)Nos.1468 and 1707
of 2018. By an order dated 24.08.2020, the Division Bench of this Court
directed the respondents namely, the Chief Executive Officer and the
third respondent herein to comply with order.
21. By an order dated 16.07.2020, the first respondent Chief
Executive Officer of the Wakf Board appointed the petitioner as
Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal again for a
period of three years from the date of the order subject to the final
disposal of A.S.No.1024 of 1993 even though the appeal would have
abated in absence of statutory steps for impleading the legal heirs of the
appellant and the respondent namely, O.M.S.Sheik Udhuman Alim Sahib
and O.M.S.Abdul Basith Alim Sahib. The third respondent who was
holding the charge as the Mutawalli of Naina Mohammed Periya
Kuthuba Pallivasal during the interregnum, was directed to hand over the
entire charge to the petitioner herein. The orders were issued with the
approval of Special Officer, Tamil Nadu Waqf Board and subject to the
result of W.P.No.762 of 2020 pending before the Principal Seat of this
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W.P. (MD) No.3791 of 2022
Court. It is not clear as what is the relevance of the said W.P.No.762 of
2020. The said Writ Petition has been filed by one M.Vinothbabu before
the Principal Seat of this Court challenging the proceedings of the second
respondent, dated 22.10.2019, transferring the petitioner from SS
Headquarters, Chennai, to SMPL, Rajkot. The said Writ Petition was
dismissed by an order dated 10.02.2020.
22. Pursuant to the order dated 24.08.2020 in Cont.P.(MD) Nos.
238 and 239 of 2020, by proceedings dated 07.10.2020, the petitioner
was once again appointed as Mutawalli of Naina Mohammed Periya
Kuthuba Pallivasal by the first respondent Executive Officer of the Wakf
Board. The Contempt Petitions were later closed in view of the above
order dated 07.10.2020. As mentioned above, in the light of the above
development, the impugned order has been challenged.
23. Opposing the prayer in this Writ Petition, the learned counsel
for the third respondent submits that this Writ Petition is devoid of merits
inasmuch as the petitioner has merely challenged the notice seeking the
petitioner and the third respondent to come for an enquiry. It is
submitted that after the order came to be passed by this Court in the
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W.P. (MD) No.3791 of 2022
above mentioned proceedings, the petitioner and the third respondent
were summoned to appear by a communication dated 08.01.2021 by the
first respondent herein. The date was fixed for hearing 12.01.2021 at
10.10 a.m. It is submitted that not only the petitioner but also the third
respondent and other persons including the Wakf Superintendent,
Tirunelveli and the Wakf Inspector, Tirunelveli were asked to appear on
12.01.2021 at 10.10 a.m.
24. It is further submitted that thereafter, another notice was issued
on 13.02.2021 and the impugned notice was issued on 24.02.2022. It is
submitted that the petitioner had participated in the proceedings and
raised serious objections regarding impartially of the Wakf Board and its
officers and that a biased decision will be taken against the petitioner. It
is submitted that though an enquiry was conducted, the order could not
be passed as the Chairman of the Wakf Board passed away before
passing order.
25. It is submitted that this Writ Petition is devoid of merits as after
the Assembly Election, the Wakf Board has been completely replaced
with new set of officers and therefore, the complaint of the petitioner
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W.P. (MD) No.3791 of 2022
against the officers of the Wakf Board also does not survive. It is
submitted that any order to be passed by the Wakf Board after the enquiry
is appealable under Section 83 of the Wakf Act, 1995. The learned
Counsel relied on the decision of the Hon'ble Supreme Court in Board of
Wakf, West Bengal and Another Vs. Anish Fatma Begum and
Another, (2010) 14 SCC 588.
26. The learned counsel for the third respondent further submits
that it was not even pleaded that the petitioner's father O.M.S.Abdul
Basith Alim Sahib was appointed as Mutawalli of Naina Mohammed
Periya Kuthuba Pallivasal, because at that point of time, the petitioner's
father O.M.S.Abdul Basith Alim Sahib had requisite qualification. Since
the third respondent's father O.M.S.Sheik Udhuman Alim Sahib did not
have the requisite qualification, the petitioner's father O.M.S.Abdul
Basith Alim Sahib was appointed as Mutawalli of Naina Mohammd
Periya Kuthuba Pallivasal. However, that would not entitle the petitioner
to automatically step into the shoes of the petitioner's father O.M.S.Abdul
Basith Alim Sahib as the officers of the Mutawalli, though Hereditary
Customary in practice in terms of the Proforma of Wakf, would require to
have requisite qualifications.
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W.P. (MD) No.3791 of 2022
27. It is submitted that the petitioner does not have requisite
qualification and that the Wakf Board is duty bound to appoint the person
with required qualification. It is submitted that office of the Mutawalli
though Hereditary Customary in nature does not mean that any person
who is not qualified can be appointed as Mutawalli. If that is correct, the
petitioner's elder brother Thanuvulla would have stepped into the shoes
of Mutawalli of said Pallivasal. In any event, the Wakf Board can appoint
only the person who does not suffer from any of the disqualification
under the Wakf Act, 1995.
28. The learned counsel for the third respondent submits that the
petitioner, his father O.M.S.Abdul Basith Alim Sahib and the brother of
the petitioner, Thanuvullah had earlier filed W.O.P.No.3 of 2012 before
the Principal Sub Court, Tirunelveli for declaring the order of the first
respondent Executive Officer of the Tamil Nadu Wakf Board dated
22.10.2009 is null and void and for declaring the petitioner and the
brother of the petitioner Thanuvullah as the Hereditary Mutawalli for the
schedule mentioned Syed Masood Nayagam Darga and for directing the
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W.P. (MD) No.3791 of 2022
third respondent to deliver possession of the same. The said suit was
dismissed for default on 16.04.2018.
29. It is submitted that after the interim order dated 28.02.2022 was
passed by this Court in this Writ Petition, the respondent Wakf Board had
fixed the hearing on 16.03.2022. On the said day, the proceeding was
adjourned silent in view of the present Writ Petition.
30. Supporting the above submission of the learned counsel for the
third respondent, the learned counsel for the first and second official
respondents submits that this Writ Petition is premature and therefore is
liable to be dismissed.
31. I have considered the arguments advanced by the learned
Senior Counsel for the petitioner and the learned counsel for the first and
second respondents and the learned counsel for the third respondent.
32. The issue that arises for consideration in the present Writ
Petition is whether the third respondent being the elder grandson of
O.M.S.Syed Masood Alim Sahib through the first son O.M.S.Sheik
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W.P. (MD) No.3791 of 2022
Udhuman Alim Sahib is entitled to be appointed/recognized as Mutawalli
in the place of the petitioner, who is the youngrt grandson of O.M.S.Syed
Masood Alim Sahib through the second son O.M.S.Abdul Basith Alim
Sahib.
33. There is no dispute that there were three wakfs, of which, the
petitioner's and the third respondent's grandfather namely, O.M.S.Syed
Masood Alim Sahib was the Mutawalli who died in 1985. After his
death, the third respondent's father O.M.S.Sheik Udhuman Alim Sahib
would have been appointed as Mutawalli if rule of primogenitor was
applied. The succession to the office of the Mutawalli is Hereditary
according to the customs. However, the third respondent's father
O.M.S.Sheik Udhuman Alim Sahib though eldest son did not have
requisite qualification for discharging the functions as the Mutawalli.
Therefore, the Wakf Board in its wisdom decided to appoint the
petitioner's father O.M.S.Abdul Basith Alim Sahib as the Mutawalli of
Naina Mohammed Periya Kuthuba Pallivasal and the third respondent's
father O.M.S.Sheik Udhuman Alim Sahib as the Mutawalli of Syed
Masood Nayagam Darga vide order dated 09.02.1985.
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W.P. (MD) No.3791 of 2022
34. This order of the Wakf was challenged by the third
respondent's father O.M.S.Sheik Udhuman Alim Sahib before this Court
in W.P.No.1575 of 1985. This Court had dismissed the W.P.No.1575 of
1985 filed by the third respondent's father O.M.S.Sheik Udhuman Alim
Sahib. The further appeal before the Division Bench in W.A.No.848 of
1986 was also dismissed vide order dated 27.07.1989 while granting
liberty to the third respondent's father O.M.S.Sheik Udhuman Alim Sahib
to file a suit to establish his right and thus Status Quo as on the date of
the order dated 27.07.1989 was ordered to prevail till the disposal of the
suit and ordered that the Wakf Board was to stay-off its hands concerning
the appointment of Mutawalli.
35. It is the background of the third respondent's father
O.M.S.Sheik Udhuman Alim Sahib to file O.S.No.138 of 1989 before the
Sub Court, Tenkasi for a declaration that the appointment of Mutawalli of
the Naina Mohammed Periya Kuthuba Pallivasal should be based on
primogeniture and for a permanent injunction to restrain the petitioner's
father and other persons from officiating. The said suit was dismissed.
36. Further appeal in A.S.No.1024 of 1993 however stood abated
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W.P. (MD) No.3791 of 2022
as the third respondent failed to get himself impleaded after his father
died on 28.06.2014, likewise, his father failed to implead the petitioner
and petitioner's brother O.M.S.Thanuvullah. The appointment to the post
of Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal stood
concluded in terms of the decision of the Sub Court in O.S.No.138 of
1989 in view of the appeal having been abated.
37. The Sub Court has itself concluded that the appointment of
Mutawalli for Naina Mohammed Periya Kuthuba Pallivasal is not by way
of rule of primogenitor. Thus, if the third respondent's father
O.M.S.Sheik Udhuman Alim Sahib could not have been appointed as the
Mutawalli of the aforesaid Pallivasal by following the rule of
primogenitor, the petitioner cannot claim any right which was denied to
the third respondent's father O.M.S.Sheik Udhuman Alim Sahib. In
other words, it stands concluded that though the succession to the post of
Mutawalli is hereditary by customs, it would fall upon only the person
who is competent to discharge function of the Mutawalli. Therefore, the
aforesaid Pallivasl has to be in the hands of the person who is having
requisite qualification to officiate the aforesaid Pallivasal both in the
capacity as spiritual and temporal head of the aforesaid Pallivasal.
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W.P. (MD) No.3791 of 2022
38. It is for the precise reasons why the power has to be exercised
by the Board under Section 63 of the Wakf Act, 1995. Merely because
the petitioner's father O.M.S.Abdul Basith Alim Sahib officiated in the
capacity of Mutawalli till his death in 2012 after the death of their
grandfather O.M.S.Syed Masood Alim Sahib, ipso facto would not entitle
the petitioner to step into the shoes as the Mutawalli of Naina
Mohammed Periya Kuthuba Pallivasal. The decision of the Sub Court
itself makes it clear that the appointment is not by rule of primogenitor.
39. A considered decision has to be taken by the Wakf Board. Any
order passed by the Wakf Board can be subject to the further challenge
before Wakf Tribunal under Section 83 of the Wakf Act, 1995.
Therefore, this Writ Petition is premature.
40. The repeated attempt of the respondents to install the third
respondent as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal
was set at knot by this Court in its order dated 29.04.2016 in W.P.(MD)
No.12143 of 2014 on account of procedural illegally committed by the
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W.P. (MD) No.3791 of 2022
respondent Wakf Board. The further appeal in W.A. (MD) Nos. 865 and
866 of 2016 were also dismissed by the Division Bench. The Division
Bench by its order made it clear that the petitioner was to continue
temporarily as the Mutawalli of the Naina Mohammed Periya Kuthuba
Pallivasal and his continuance will be subject to the final out come of the
A.S.No.1024 of 1993. The dispute between the petitioner's father and the
third respondent's father came to an end with the Appeal Suit having
abated. The Division Bench in paragraph No.21 of the said order made it
clear that dehorse the said order, it was open to the appellant in W.A.
(MD) No.865 of 2016 namely, Tamil Nadu Wakf Board to exercise its
power in terms of Wakf Act, 1995 and Rules made thereunder as to the
office of Mutawalliship in respect of Naina Mohammed Periya Kuthuba
Pallivasal. Thus, there is no infirmity in the impugned steps of the
respondent Wakf Board.
41. Thus, the continuance of the petitioner as the Mutawalli of
Naina Mohammed Periya Kuthuba Pallivasal after the death of his father
O.M.S.Abdul Basith Alim Sahib and several intervention of the Court is
temporary in nature. The petitioner cannot claim permanency merely
because the petitioner's father O.M.S.Abdul Basith Alim Sahib officiated
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W.P. (MD) No.3791 of 2022
as Mutawalli after the death of the petitioner's and the third respondent's
grandfather namely, O.M.S.Syed Masood Alim Sahib in 1985.
42. The petitioner has also been summoned earlier for an enquiry.
However, the petitioner has not brought same to the attention of this
Court. Thus, there is a suppression of fact. Whether the petitioner has
requisite qualification to continue as Mutawalli of Naina Mohammed
Periya Kuthuba Pallivasal is to be decided by the Wakf Board as was
observed by the Division Bench of this Court in its order dated
22.03.2018 in W.A. (MD) Nos.865 and 866 of 2016. Merely because the
Appeal Suit stood abated itself would not mean that the post of Mutawalli
automatically fell on the lap of the petitioner even though the petitioner
may or may not have the requisite qualification.
43. The first and second respondents who are the officials of the
Wakf Board have power to decide as to whether the petitioner has
requisite qualification or does not suffer from any disqualification under
the Wakf Act, 1995. Therefore, I do not find any merits in the present
Writ Petition.
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W.P. (MD) No.3791 of 2022
44. The petitioner and the third respondent and other persons are
required to appear before the first respondent for enquiry. The first
respondent is directed to complete the enquiry within a period of three
months from the date of receipt of a copy of this order and thereafter,
appoint a person who is competent to step in as the Mutawalli.
45. This Writ Petition is dismissed. No cost. Consequently,
connected Miscellaneous Petitions are closed.
01.04.2022
Internet : Yes/No
Index : Yes / No
jen / smn2
To
1.The Chief Executive Officer,
The Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Sethakathi Nagar,
Chennai – 600 001.
2.The Inspector of Waqf,
54, High Road,
Tenkasi District.
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W.P. (MD) No.3791 of 2022
C.SARAVANAN, J.
jen / smn2
Pre-Delivery Order
made in
W.P.(MD) No.3791 of 2022
and
W.M.P. (MD) Nos.3298
& 3299 of 2022
01.04.2022
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Page No 34 of 34
