Madras High Court
A.Mohammed Abdul Khader vs The Chief Executive Officer on 6 November, 2024
W.P.(MD)No.5894 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.09.2024
Pronounced on : 06.11.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
W.P.(MD)No.5894 of 2024
A.Mohammed Abdul Khader ... Petitioner
Vs.
1. The Chief Executive Officer,
Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai.
2. The Superintendent of Police,
Office of Superintendent of Police,
Sivagangai District.
3. The Inspector of Police,
Ilayangudi Police Station,
Sivagangai District.
4. The Waqf Inspector,
Sivagangai-Ramanathapuram Circle,
Sivagangai District.
1/16
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.5894 of 2024
5. The Managing Committee,
Nesavupettai Shafi Jamath Mosque,
represented by its President
Ilayangudi Taluk,
Sivagangai District. ... Respondents
Prayer : This Writ Petition filed under Article 226 of Constitution of
India, praying this Court to issue a Writ of Mandamus, to direct the
respondents 2 and 3 to consider the petitioner's representation dated
29.01.2024 and further direct the respondents 2 and 3 to give adequate
police protection to take over the possession of Mohammed Thambi Waqf
property comprised in old S.No.30/2, Ilayangudi Taluk, Sivagangai
District based on the Se.Mu.Order No.17466/08/A3/SV dated 19.07.2023
passed by the first respondent.
For Petitioner : M/s.Nagalakshmi
for Mr.J.Pooventhera Rajan
For R1 & R4 : Mr.G.Chandrasekar
For R2 & R3 : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For R5 : Mr.Porkodi Karnan
ORDER
The Writ Petition has been filed, invoking Article 226 of the
Constitution of India, directing the respondents 2 and 3 to consider the
writ petitioner's representation dated 29.01.2024 and further direction to
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the respondents 2 and 3 to give adequate police protection to take over the
possession of Mohammed Thambi Waqf property comprised in old Survey
No.30/2, Ilayangudi Taluk, Sivagangai District based on the order dated
19.07.2023 passed by the first respondent.
2. The case of the writ petitioner is that the writ petitioner's great
grandfather T.O.Mohammed Thambi endowed 1.75 acres of property
comprised in Survey No.30/2 of Ilayangudi Taluk, Sivagangai District as
Waqf property and appointed his daughter Mohammed Mariath Beevi as
Mutawalli of the above said Waqf property under a registered settlement
deed dated 20.04.1948, that the object of the Waqf is to bury the founder
and construct gori and light the same and also construct an
accommodation for sadus and do prayers and to carry out religious
practices, that the said T.O.Mohammed Thambi directed his daughter and
her descendants to reside in the remaining portion of the property and to
maintain the Waqf out of the income from it, that the Waqf Board vide
proceedings dated 22.11.1966 directed the Managing Committee of
Nesavupettai Shafi Jamath Mosque/fifth respondent herein to take charge
of the said Waqf property and directed to register the same in Waqf Board
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since the said Mohammed Mariath Beevi acted against the interest and
objects of the T.O.Mohammed Thambi Waqf and also refused to register
the same with the Waqf Board, that the said Mohammed Mariath Beevi
filed a suit for declaration and injunction before the Subordinate Court,
Ramanathapuram in O.S.No.84 of 1967 but the suit was dismissed vide
judgment dated 11.11.1968 with findings that the above said property was
a Waqf and not a gift in favour of the daughter by the said T.O.Mohammed
Thambi, that the said Mohammed Mariath Beevi has preferred an appeal
in A.S.No.64 of 1969 and the same came to be dismissed by the District
Court, Ramanathapuram and that subsequently the said Mohammed
Mariath Beevi preferred a review petition before the Waqf Board and the
same was also dismissed on 23.04.1977 and directed that the said Waqf
should be treated as a separate one in the name of T.O.Mohammed Thambi
Waqf.
3. It is the further case of the writ petitioner that the fifth respondent
has been in possession and in charge of the said Waqf property, that since
the fifth respondent had also acted against the interest and object of the
T.O.Mohammed Thambi Waqf by allowing to conduct adal padal
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programmes in the Waqf property, the writ petitioner filed a petition before
the Waqf Board to appoint him as a hereditary Mutawalli as he is the great
grandson of the said T.O.Mohammed Thambi but the said petition was
dismissed vide order dated 21.07.2018 with direction to the fifth
respondent not to allow such programmes in the Waqf property, that the
writ petitioner preferred an application before the Tamil Nadu Waqf
Tribunal in O.A.No.70 of 2018, challenging the order passed by the Waqf
Board and also to declare the writ petitioner as a hereditary Mutawalli of
the said property, that the Waqf Tribunal partly allowed the writ
petitioner's application vide order dated 24.03.2023 and thereby set aside
the order of the Waqf Board and further directed the Tamil Nadu Waqf
Board to register T.O.Mohammed Thambi Waqf as a separate Waqf and
prepare a proforma report showing Rule of Succession to the post of
Mutawalli as hereditary and to conduct a detailed enquiry among the legal
representatives of the late T.O.Mohammed Thambi and appoint Mutawalli
for the said Waqf by following the procedures, that the first respondent
conducted detailed enquiry and appointed the writ petitioner as a
hereditary Mutawalli of the above said property for a period of three years
with effect from 14.06.2023 to 13.06.2026 vide order dated 19.07.2023,
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that the writ petitioner has thereafter approached the fifth respondent
several times in person and also through post and requested to hand over
the possession of the said Waqf property as he was appointed as Mutawalli
but the fifth respondent and its members refused the same and threatened
him not to interfere in the said property, that the writ petitioner has
preferred a representation dated 29.01.2024 before the respondents 2 and 3
to take necessary action and to provide adequate police protection to take
over the possession of the said Waqf property but no action was taken till
now and that therefore the writ petitioner is constrained to file the present
writ petition seeking direction for police protection invoking Article 226
of the Constitution of India.
4. The fifth respondent has filed a counter affidavit stating that one
T.Uthuman had played a vital role in the administration of collecting funds
from the local people and traders and for construction of Madarassa and
Mosque, that the said T.Uthuman had purchased an extent of 1.75 acres at
Salaiyur, Ilayangudi in his name during 1920, that one T.O.Mohammed
Thambi, son of the said Uthuman had executed a gift deed in the nature of
Waqf deed gifting his property to his daughter Mohammed Mariath Beevi
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vide document dated 20.04.1948 mainly for carrying out the activities
such as to conduct Fathiyah, to recite quron, to lit lamps in his grave, to
bury him in the said property and construct a musaffirkhana and to carry
out other pious and charitable activities, that the said Mohammed Mariath
Beevi, after the death of the said T.O.Mohammed Thambi, had treated the
property as her own property and tried to change the character of the
property, that the fifth respondent, which was in the administration of the
above said property, had filed an application before the first respondent to
appoint the fifth respondent as Mutawalli of the said property, that the first
respondent had removed the said Mohammed Mariath Beevi as Mutawalli
Trustee as she had acted against the interest of the Waqf and directed the
fifth respondent to take charge of the Waqf property and administer the
same vide order dated 21.11.1966, that the said Mohammed Mariath Beevi
had filed a suit in O.S.No.84 of 1967 before the Subordinate Court,
Ramanathapuram for setting aside the order passed by the first respondent
and the suit was dismissed, that the said Mohammed Mariath Beevi had
preferred an appeal in A.S.No.64 of 1969 and the same was also dismissed
by the District Court, Ramanathapuram, that thereafter the said
Mohammed Mariath Beevi had filed a review application before the first
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respondent and the same was also dismissed on 23.04.1977 and that
thereafter the fifth respondent has been continuously administering the
Waqf till date.
5. In the counter affidavit, the fifth respondent has further stated that
the writ petitioner claiming himself to be the descendant of the said
Mohammed Mariath Beevi raised some allegations before the first
respondent that some cultural events are being conducted in the Waqf
property and he had sought for handing over the same to him, that the first
respondent had dismissed the application of the writ petitioner vide order
dated 19.09.2018 and directed the fifth respondent not to permit any
cultural events in the Waqf property, that the writ petitioner had filed an
application in O.A.No.70 of 2018 before the Tamil Nadu Waqf Tribunal
challenging the said order dated 19.09.2018 and to declare him as
hereditary Mutawalli of the Waqf property, that the Waqf Tribunal had set
aside the order of the first respondent and directed the Waqf Board to
conduct an enquiry among the legal heirs of the said T.O.Mohammed
Thambi and to appoint a Mutawalli from the descendants of the said
T.O.Mohammed Thambi and also directed to create a proforma in the
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name of T.O.Mohammed Thambi Waqf vide order dated 24.03.2023, that
the Waqf Tribunal had passed the said order without considering the fact
that a competent civil decree had been passed in the year 1967 itself and
hence, the fifth respondent had filed a revision in C.R.P.No.2000 of 2023
before the Madras High Court and the same is pending now, that the writ
petitioner, after entering into appearance, had approached the first
respondent to conduct enquiry and the first respondent had also in a
hurried manner passed an order dated 19.07.2023 and appointed the writ
petitioner as a hereditary Mutawalli, that the said order has been passed
without issuing any notice to the respondents and without following the
principle of natural justice, that they have also filed an O.A. before the
Tamil Nadu Waqf Tribunal challenging the order of the first respondent
dated 19.07.2023, that the present writ petition for implementing the order
of the first respondent is not at all permissible, that the main contention of
the fifth respondent is that the order of the Waqf Tribunal dated
24.03.2023 is bereft of material particulars and the same is liable to be set
aside and that therefore the present writ petition is premature one and the
same is liable to be dismissed.
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6. It is pertinent to note that the writ petitioner has filed an
application in O.A.No.70 of 2018 before the Tamil Nadu Waqf Tribunal
under Section 83(1) and (2) of the Waqf Act for setting aside the order of
the first respondent dated 21.07.2018 and to declare the writ petitioner as a
hereditary Mutawalli of T.O.Mohammed Thambi Waqf, Sivagangai
District. The first respondent as well as the fifth respondent have filed
their counter statement raising objections. The Tribunal, after hearing both
sides, has passed an order dated 24.03.2023 partly allowing the
application and thereby setting aside the order of the first respondent dated
21.07.2018 as prayed for and dismissing the relief with regard to the
declaration. The Tribunal has further directed the first respondent to
register the T.O.Mohammed Thambi Waqf, Ilayangudi Taluk, Sivagangai
District as a separate Waqf and prepare a proforma report showing the
“Rule of Succession” to the post of Mutawalli as 'hereditary', conduct a
detailed enquiry among the legal representatives of the Waqif/founder
namely late T.O.Mohammed Thambi and appoint Mutawalli for the said
Waqf by following the procedures prescribed under the Waqf Act, 1995. In
pursuance of the order passed by the Tribunal, the first respondent has
passed resolution appointing the writ petitioner as Mutawalli and directed
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the fifth respondent Management to hand over the T.O.Mohammed
Thambi Waqf and its properties vide order dated 19.07.2023.
7. The main contention of the writ petitioner is that since the
direction issued by the first respondent vide order dated 19.07.2023 was
not complied with, the writ petitioner approached the fifth respondent to
hand over the Waqf and its properties several times but they have refused
to hand over the same but on the other hand, they have threatened the writ
petitioner not to interfere with the said property.
8. As already pointed out, the fifth respondent in their counter has
taken a stand that the order of the Waqf Tribunal is bereft of particulars
and the same is liable to be set aside. Whether the order passed by the
Tribunal is bereft of particulars and the same is liable to be set aside or not
is the aspect that cannot be gone in the present proceedings. Moreover,
even according to the fifth respondent, they have filed a revision in
C.R.P.No.2000 of 2023 and the same is pending before the Madras High
Court. As rightly contended by the learned counsel appearing for the writ
petitioner, it is not the case of the fifth respondent that the order of the
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Waqf Tribunal dated 24.03.2023 had been stayed by the High Court.
9. The fifth respondent has also further stated that they have also
filed an application in O.A.No.70 of 2018 before the Waqf Tribunal
challenging the order of the first respondent dated 19.07.2023. The fifth
respondent has not even furnished the case particulars and whether any
interim order came to be passed by the Tribunal.
10. The learned counsel appearing for the writ petitioner would
submit that the writ petitioner is the descendant of T.O.Mohammed
Thambi, that though the said T.O.Mohammed Thambi has appointed his
daughter Mohammed Mariath Beevi as Mutawalli, she has acted against
the interest of Waqf and hence, she was removed and the fifth respondent
was directed to take charge of the Waqf property and that the civil
proceedings taken by the said Mohammed Mariath Beevi were ended
against her and on that basis, the fifth respondent was allowed to be in
charge of the Waqf property.
11. As rightly contended by the learned counsel appearing for the
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writ petitioner, the Waqf Tribunal has specifically observed that just
because the fifth respondent continues to manage the Waqf in question
pursuant to the order of the Waqf Board dated 21.11.1966 and 23.04.1977,
it does not mean that the said orders are eternal and also directed the Waqf
Board to conduct a detailed enquiry and to frame a scheme for the said
Waqf showing the Rule of Succession can only be hereditary.
12. As rightly contended by the learned counsel appearing for the
writ petitioner, though the Tribunal has passed the order dated 24.03.2023
and in pursuance of the same, the first respondent has passed the order
dated 19.07.2023, the fifth respondent has not chosen to comply with the
directions of the first respondent.
13. In the absence of any stay granted by the competent Court, the
fifth respondent is duty bound to comply with the directions of the first
respondent as the first respondent alone had handed over the Waqf and its
properties to the fifth respondent.
14. The learned Additional Public Prosecutor appearing for the
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respondents 2 and 3 would submit that on the basis of the representation
given by the writ petitioner, enquiry was conducted on 01.03.2024 and
after coming to know that the writ petitioner has to approach the Revenue
Department, directing him to approach the Revenue Department, the
complaint was ordered to be closed.
15. The learned counsel appearing for the respondents 1 and 4
would submit that despite the specific orders of the Tribunal and the
proceedings of the first respondent, the fifth respondent has wantonly and
purposely refused to comply with the directions and that the police
authorities may be directed to give adequate police protection for taking
possession of the Waqf and its properties.
16. Considering the above facts and circumstances and taking note
of the submissions made on either side, the third respondent is directed to
issue notice to the writ petitioner as well as to the fifth respondent and
take a decision, taking note of the orders passed by the Tamil Nadu Waqf
Tribunal and the first respondent, within a period of one week from the
date of receipt of a copy of this order.
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17. With the above direction, this Writ Petition stands disposed of.
No costs.
06.11.2024
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Superintendent of Police,
Office of Superintendent of Police,
Sivagangai District.
2. The Inspector of Police,
Ilayangudi Police Station,
Sivagangai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
Dated : 06.11.2024
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