Challenging the award of the Tribunal dated 25.9.2002 passed in the petition filed by 99 persons claiming to be the members of a jamath, the petitioner has approached this court seeking writ of certiorari.
2. The case of the petitioner is that the mosque called Khadariya Kodimara Siru Nainar Pallivasal, Arampalli Street, Kayalpattinam, Tuticorin District is to be managed only by the muslims following Khadiriya Tharika alone and no one else has got rights to manage the pallivasal.
3. Learned counsel for the petitioner, Mr.S.B.Fazluddin submitted that the mosque has been in existence for centuries together namely over 800 years and only Khadiriya muslims have been successfully managing the affairs of the pallivasal and that the muslims who are following Khadiriya Tharika and living in the five streets of Kayalpattinam are alone entitled to manage the said Pallivasal. He referred to a resolution dated 4.2.1948 passed by the Jamath and as per the resolution the aforesaid sector alone could manage the affairs of mosque. Since some persons were not allowed to participate in the election, they filed a petition on 20.1.1999 to the Tamil Nadu Wakf Board, Chennai stating that they were not allowed to participate in the election and physically prevented from entering into mosque for offering prayer and requested to conduct election for committee of management of the aforesaid mosque. The Wakf Board conducted an enquiry and rejected the contention of the petitioner herein stating that the administration of a mosque or any religious institution cannot be confined to the spiritual belief of individuals and the claim that Khadiriya Section Muslims alone are entitled to the administration was rejected and ordered fresh election to be held. Aggrieved by that only the present writ petition is filed.
4. Relying upon 1948 resolution and the administration of the Mosque subsequent thereto i.e. only by the concerned sector, learned counsel for the petitioner submits that custom and usage would prevail over the act.
5. On the other hand A.S.Kaizer, the learned counsel for the Wakf Board submitted that a survey was conducted and based on the enquiry report of the Survey Commissioner,Wakf Board, appointed by the State Government, the Wakf Board makes a publication of list of wakfs and maintains the records with the Board. During the enquiry the commissioner took all relevant documents and customs and usage pertaining to subject wakf. The important document preserved by the wakf board is the proforma report of the subject wakf which contains the information, which was revealed during the enquiry by the Survey Commissioner. As per the proforma report, the rule of succession to the office of Muthawalli of the subject wakf is election by the muslim jamath of the five streets. Learned counsel further submitted that there is no usage or custom as stated by the learned counsel for the petitioner that the members professing Khaderia Tharika alone can be in the managing committee. He further submitted that the proforma report itself has become final and conclusive. Apart from that the learned counsel submitted that what are all the contentions made by the learned counsel for the petitioner could be raised by filing appropriate proceedings under
Section 83 of the Wakf Act before the Wakf Tribunal. The Tribunal has got all the powers of civil court and where evidence would be adduced on both sides.
6. After hearing both parties, this court is of the view that the claims and counter claims from any quarters could be separately maintained before the Tribunal constituted under
Section 83 of the Wakf Act. The procedure being adopted before the Tribunal is that of a Civil Court, where parties can adduce their evidence. The jurisdiction of this court is very limited and the decision is taken on the basis of affidavits filed by the parties. When an alternate effective remedy is available by way of proceedings before the tribunal, the petitioner has got liberty to move the said Tribunal to prove his claims by adducing appropriate documentary as well as oral evidence.
7. Hence this court directs the petitioner to approach the Tribunal and initiate suitable proceedings under
Section 83 of the Act. The writ petition has been filed in 2003, challenging the order passed by the Wakf Board and an interim order has been obtained by the petitioner staying the operation of the Wakf Board's order. It is represented that the petitioner continues to be in the management and Khadiriya people are managing the affairs of mosque. Therefore the Status quo as on date is directed to be maintained. The petitioner is directed to file appropriate petition before the Tribunal within two weeks from the date of receipt of a copy of the order and the Tribunal is directed to pass order within 8 weeks thereafter.
8. Accordingly the writ petition is disposed of. No costs.
vk To Tamil Nadu Wakf Board rep. by its Chief Executive Officer No.3, Santhome High Road, Chennai 600 004