Madras High Court
Ithikathu Muslim Valibar Sangam vs Tamil Nadu Waqf Board on 17 August, 2023
C.R.P.(MD)No.2823 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 17.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.2823 of 2018
and
C.M.P.(MD)No.12259 of 2018
1.Ithikathu Muslim Valibar Sangam,
Represented Through its President
M.Abdul Nabilk,
Perungulam,
Ramanathapuram Taluk,
Ramanathapuram District.
2.E.Bazeer Khan
3.Nihamathu Nisha
4.Mohammed Ali ... Petitioners / Petitioners
Vs.
1.Tamil Nadu Waqf Board,
Through its Chief Executive Officer,
No.1, Jaber Siraj Street,
Vallal Seethakathi Nagar,
Chennai -1.
2.The District Collector,
Ramanathapuram District,
Ramanathapuram.
1/18
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
3.Perungulam Muslim Jamath Pallivasal
Through its present President
Mohammed Ismail,
Perungulam Village,
Ramanathapuram Taluk,
Ramanathapuram District.
4.Sathathullah ...Respondents/Respondents 1 to 3/
& Petitioner No.4
(Respondent No.4/Petitioner No.4 arrayed as respondent
since he has gone to Malaysia and could not join as a
petitioner in this Revision )
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India r/w. Section 83 (9) of the Waqf Act, 1995, against the fair and
decretal order, dated 09.08.2018, passed in W.O.P.No.1 of 2011, on the file
of the Subordinate Judge, Ramanathapuram.
For Petitioners : Mr.V.Meenakshisundaram
for Mr.D.Nallathambi
For Respondents : Mr.Janab.M.Mohideen for R1
: Mr.Senthil Ayyanar
Government Advocate for R2
ORDER
The instant Civil Revision Petition has been filed against the
order, dated 09.08.2018, passed in W.O.P.No.1 of 2011, on the file of the
Subordinate Judge, Ramanathapuram.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
2. The revision petitioners herein are the petitioners, the
respondents 1 to 3 herein are the respondents and the fourth respondent
herein is the fourth petitioner before the Court below.
3. According to the petitioners, the first petitioner - Ithikathu
Muslim Nala Sangam, is a registered Society. It is the further submission of
the petitioners that the petition mentioned properties were originally
belonged to one Fakkir Rowther, and that he was in actual physical
possession and enjoyment of the property, by having Patta No.4. After his
demise, the properties were devolved upon his daughter – Subuhana Beevi.
After she became the owner of the property, she executed two gift
settlement deeds, dated 29.10.1980 and on 17.11.1982, in favour of the
Governor of Tamil Nadu, for construction of quarters for revenue
inspectors, and for the Primary Health Centre. Subsequent to the above
two transfers, the said Subuhana Beevi has orally gifted the remaining
property in favour of the first petitioner and also handed over the
possession to them. In pursuance there of, the first petitioner has leased out
the portion of the property to M/s.Indian Overseas Bank, and for Telephone
Exchange, and also for fish market. While this being so, during the
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
Updating Register Scheme, Patta in respect of the petition mentioned
property, was mistakenly issued in the name of the third respondent,
namely, Perungulam Muslim Jamath Pallivasal. According to the
petitioners, the third respondent has no semblances of right for the petition
mentioned property. In order to fulfil the object of the first petitioner
Sangam, they have divided the petition mentioned property into plots and
sold the same to the petitioners 2 to 5. The petitioners would further submit
that one Mohammed Asraf Ali filed W.O.P.No.2 of 2009, against the first
and second petitioner and the President of the first and third respondent
herein and two others. In pursuance to the explanation given by the third
respondent, to the notice, dated 07.07.2010 the first respondent passed an
impugned order, dated 02.02.2011, directing the second respondent to
recover the Waqf properties and hand over the same to the Waqf Board. It
is the categorical submission of the petitioner that the petition mentioned
properties are not Waqf properties. Therefore, the petitioner prayed to allow
the petition.
4. By refuting the above contention, the first respondent has filed
a counter statement, saying that the third respondent is a Sunni Waqf
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
registered with the Waqf Board, and that the Waqf was administered by a
Committee consisting of office bearers, who were elected once in three
years. It is the further submission that, in view of many complaints
received by the first respondent, against the Management of the Jamath, the
first respondent directed the Waqf Inspector of Ramanathapuram to make
an enquiry and to submit report. In pursuance of the inspection, it comes to
light to the first respondent that the petitioners have encumbered the suit
property. Hence, they issued impugned notice, dated 02.02.2011. It is also
the submission of the first respondent that the Fakkir Rowther is not the
owner of the property, and that he was only managing the property as
Mutawalli of Perungulam Jamath. It is also submitted that Mrs.Subuhana
Beevi is not the daughter of Fakkir Mohamed. The first respondent would
further submit that since the first petitioner Society was registered only
during 2010, the question of receiving oral gift, on 02.12.1982 is illogical
and could not be believed. It is also the submission of the first respondent
that once the property is Waqf always the same is Waqf and cannot be
alienated.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
5. Before the trial Court, the petitioner has examined one witness
as P.W.1 and marked 18 documents as Ex.P1 to Ex.P18. On the side of the
respondents, one witness was examined as R.W.1 and 8 documents were
marked as Ex.R1 to Ex.R8.
6. After considering the pleadings, evidence and materials on
record, the Court below has disbelieved the case of the petitioners and has
ultimately dismissed the original petition.
7. Aggrieved with the order of the Court below, the petitioners
have come forward with the instant Civil Revision Petition.
8. The learned counsel for the petitioners would contend that the
first respondent has not issued notice to the petitioner under Section 52(1)
of the Waqf Act (Herein after called “the Act”). Therefore, would contend
that the very impugned notice is liable to be set aside. It is also the
submission of the learned counsel for the petitioners, that when earlier gift
deed executed in the name of the Governor of Tamil Nadu is not
challenged, the very challenge in respect of alienation made by the first
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
petitioner is not maintainable and hit by the principles of estoppel. The
learned counsel for the petitioners would also submit that the impugned
notice was not served upon the subsequent purchasers, therefore, the very
proceedings is contrary to the principles of natural justice. Hence, the
learned counsel for the petitioners prayed to set aside the impugned order
and praying this Court to remit the matter before the first respondent for
fresh disposal according to law.
9. Per contra, the learned counsel for the first respondent would
invite the attention of this Court in respect of Ex.R1 – Proforma, and would
submit that even during 1955, the suit schedule property was classified as
Waqf property, and that if at all any one had any objection, they could have
very well challenged the same before the appropriate authority. Having
permitted such Proforma, since 30.09.1956, it is too late, for the petitioners
to contend contra to the proforma-Ex.R1. The learned counsel for the first
respondent would also submit that, there is no proof that the Fakkir
Rowther was the owner of the property and that the Subuhana Beevi is his
daughter, and that the property was orally gifted to the first petitioner
herein. The learned counsel for the first respondent would rely upon the
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
judgment of the Hon'ble Supreme Court reported in 2019-3-T.N.C.J.-582
(SC) (Syed Zainul Abdeen V. Rajasthan Board of Muslim Waqf), and
another judgment of this Court reported in 2019-2-MadWN(Civil)138
(Madras.E.Rasheedia V. The Chief Executive Officer, the Tamil Nadu
Waqf Board)
10. I have given my anxious consideration to the either side
submission.
11. While perusing the records, the first respondent has submitted
the proforma – Ex.R1, dated 30.09.1956 of "Muslim Jamath Pallivasal"
Perunkulam issued by the Assistant Commissioner of Waqf. According to
the said proforma, the property was classified as Waqf property. As per
Waqf Act, if any one have any issue in respect of the proforma published in
the Gazette, then an objection can be made under Section 6 of the Act,
within a period of one year.
12. In this regard, this Court would like to discuss the judgment
cited by the first respondent. The learned counsel for the first respondent
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
would rely upon the judgment of the Hon'ble Supreme Court reported in
2019-3-T.N.C.J.-582 (SC) (Syed Zainul Abdeen V. Rajasthan Board of
Muslim Waqf). The relevant portion of the judgment is as follows-
“17. The conjoint reading of the provisions of
which a reference has been made clearly envisage that the
survey is to be made of Waqfs by the State Government
through its authorised Officer, i.e., Survey Commissioner
under subsection (4) of Section 4 of the Act who could make
an inquiry with the same powers as are vested in a civil
Court under the Code of Civil Procedure, 1908, and may
submit its report under subsection (3) of Section 4 of Act,
1954 to the State Government. On receipt of the report under
subsection (3) of Section 4, the State Government will
forward a copy of the same to the Board who may examine
the report and publish it in the Official Gazette in the list of
Waqfs under subsection (2) of Section 5 of the Act, 1954 and
any disputes regarding Waqfs, to be more specific, regarding
the properties which are specified as Waqf properties in the
list of Waqfs published in the Official Gazette under sub-
section (2) of Section 5 by any person aggrieved may be
challenged by way of a suit in a Court of competent
jurisdiction under Section 6 of the Act and the Parliament,
in its wisdom, consider it appropriate to attach finality to
the list of Waqfs published in the Gazette added a proviso
to Section 6 which has been couched in the negative words
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
that no suit shall be entertained after the expiry of one year
from the date of publication of the list of Waqfs under sub
section (2) of Section 5 of Act, 1954.”
(Emphasis supplied by this Court)
13. He would also rely upon another judgment of this Court
reported in 2019-2-MadWN(Civil)138 (Madras.E.Rasheedia V. The Chief
Executive Officer, the Tamil Nadu Waqf Board). The relevant portion of
the judgment is as follows-
“10. I have perused the order and the pleadings of the
parties. It is the contention of the Plaintiff that the suit property
originally belong to one Ismail Hussain @ Maula Baksh Sahib
and his predecessors had title over the property and the said
Ismail Hussain @ Maula Baksh Sahib maintained the Gori viz.,
Nawab Subedhar Alikhan Tomb. Thereafter same has been given
to the Plaintiff for its maintenance in the year 1988. It is the
specific contention of the defendants that though the suit
property has been notified as Waqf Property in the year 1959
itself, no statutory suit has been filed as against that
notification. Once the property has been declared as Waqf
under Section 5 of the Waqf Act, 1995, any dispute regarding
such notification, suit has to be filed within one year from the
date of Gazette Notification as per Section 6 of the Waqf Act.
On perusal of records it is clearly shown that no such suit has
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
been filed. Therefore, once it is established by the Defendants
that Waqf has been notified and no suit has been filed by the
person who was in possession of the property questioning the
declaration within the time, any claim by the subsequent
persons, in my view, is not sustainable.”
(Emphasis supplied by this Court)
14. While considering the facts of this case in the background of
above ratio, from the perusal of the records, no such objection has been
made against such classification of the land as Waqf. However, the
contention of the petitioners is that the petition mentioned property was
originally belongs to Fakkir Rowther, and that after his demise the same
was devolved upon one Subuhana Beevi. But, as rightly observed by the
learned trial Judge the first petitioner has not submitted any scrap of paper
to prove the ownership of one Fakkir Mohamad and thereafter one
Subuhana Beevi. No doubt, in between, the said Subhuna Beevi has
executed certain gift settlement in favour of the Government of Tamilnadu.
Therefore, the petitioners by taking advantage of the said transaction,
would contend that, as long as the said transactions are not challenged, the
rights of the petitioners could not be disturbed.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
15. However, while perusing the impugned order, which is
marked herein as Ex.P7, the first respondent has also included the two
properties which was gifted to the Government, for recovery of possession.
Therefore, the Gifting of the property will in no way improve the
petitioners' case.
16. It is also pertinent to mention here that, the case of the
petitioners to derive the ownership over the petition mentioned property is
based upon the oral gift said to have been given by one Subuhana Beevi.
But, to substantiate such oral gift of the year 1982, there are no materials,
such as revenue records, and other documents produced before this Court.
However, he would contend that, as the owner of the property, they have
leased out the suit schedule properties to Bank, Telephone Exchange and to
fish market. However, even to prove such lease, the petitioners did not
produce any documents.
17. At this juncture, it is relevant to mention that, even the lease
deed - Ex.R4 to Ex.R7 which stands in the name of Indian Overseas Bank,
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
is between the President of M/s.Perungulam Muslim Jamath Nala Sangam,
and the Bank and not by the petitioner. More curiously, in Ex.R5-lease
deed, one Katti Mohamed, S/o. Mohamed Ali, has affixed signature on
21.01.2000. More pertinently and surprisingly the very same Katti
Mohamed, during 2001, as the President of the first petitioner has executed
the sale deed alleging that the property belonged to the first petitioner. The
very conduct of the first petitioner would manifestly project the fallacy and
dichotomy. Therefore, as rightly observed by the learned trial Judge, the
petitioners have not substantiated their right, title over the schedule
mentioned property.
18. However, the first respondent has succinctly, established the
dedication of Waqf over the schedule mentioned property by producing
Ex.R1 and the lease deeds Ex.R4 to Ex.R7. However, the petitioners have
taken a vain attempt by referring revenue records viz., Ex.P13, P14, P15,
and would contend that the respective purchasers name find a place, and
that through same they could derive their title over the property.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
19. On close scrutiny of those documents, the Adangal was issued
for the Fasli year 1425, in respect of the property comprised in Survey No.
65/1A1A, 65/15 and 65/27 in the name of the first petitioner / Society. But
the corresponding Gregorian Calendar Year for the Fasli Year 1425 is 2015.
Whereas, the instant petition was instituted prior to the date of Adangal,
during 2011. Therefore, it is highly unsafe to rely upon those documents,
that too when Ex.R1 is in existence. Therefore, as rightly observed by the
learned trial Judge, even the case of oral gift is far from truth and the same
is liable to be rejected.
20. As a last straw, the learned counsel for the petitioners would
contend before this Court that, prior to issuing the impugned notice, no
individual notice was issued to the petitioners, so as to submit their
explanations before the Waqf Board as contemplated under Section 52(1)
of the Act. Hence, the learned counsel for the petitioners prays that, to
meet the ends of justice, after setting aside the impugned order prayed to
remit back the case before the first respondent to decide the issue afresh
according to law. But, this Court respectfully disagree with the arguments
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
of the learned counsel of the petitioners, in view of Section 52 of the Waqf
Act.
21. At this juncture, this Court deems it appropriate to extract
Section 52 (1) of the Waqf Act, which reads as follows:
“52. Recovery of Waqf property transferred in
contravention of Section 51- (1) If the Board is satisfied, after
making any inquiry in such manner as may be prescribed, that
any immovable property of a Waqf entered as such in the
register of Waqf maintained under section 36, has been
transferred without the previous sanction of the Board in
contravention of the provisions of section 51, it may send a
requisition to the Collector within whose jurisdiction the
property is situate to obtain and deliver possession of the
property to it.”
22. The plain reading of the Section 52(1) of the Act, provides
“enquiry in such a manner as may be prescribed” under the Act. The
enquiry has been provided under Chapter II of the Waqf Act with a heading
Survey Of Auqafs. The chapter II provides a preliminary survey followed
with the publication of the list of Auqafs, and dispute regarding Auqafs
under Section 4 to 6 of the Waqf Act.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
23. According to Section 6, if there is any dispute in respect of
classification of the property as the Waqf property, the same needs to be
agitated within a period of one year by filing a suit. Therefore, here, the
procedure mandated under Section 52(1) has been done as early as during
1955. Therefore, the petitioners at this stage cannot expect the notice from
the first respondent.
24. Therefore, this Court is of the firm view that there are no
ground made out to interfere with the well considered order of the Court
below. In the result, the instant Civil Revision Petition is dismissed. There
is no order as to costs. Consequently, connected Miscellaneous Petition is
closed.
17.08.2023
NCC : Yes/No
Index :Yes/No
Ls
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
To
1.The Subordinate Judge,
Ramanathapuram.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2823 of 2018
C.KUMARAPPAN.,J.
Ls
Order made in
C.R.P(MD)No.2823 of 2018
17.08.2023
https://www.mhc.tn.gov.in/judis
