M.Liakath Ali vs The Tamil Nadu Wakf Board

2. The Superintendent of Wakf's Southern Zone, No.1, Town Hall Road, Madurai-625 001 .... second respondent in all the writ petitions

3. S.Nasurulla

4. M.Rabik Raja

5. M.Shahul Hameed

6. A.Shahul Hameed

7. S.Sirajudeen

8. A.Kanavai Peer

9. A.Allahudeen

10.D.Shahul Hameed

11.P.Umar Shareef

12.K.M.Shafeer Ahamed

13.A.Raja Mohideen

14.S.Jafar Alikhan

15.S.Zahir Hussain

16.E.Abdul Kadar

17.A.Mohamed Ismail

18.A.Sirajudeen

19.P.Abdul Rasheed

20.E.Abdul Muthaleef

21.R.Syed Abuthahir

22.P.Nasrudeen

23.S.Abuthahir

24.S.Syed Sulthan

25.S.Arasu Mohideen

26.N.Mohamed Ajmalkhan

27.A.Akkeem Sait

28.P.Raja Mohamed

29.A.Arasu Mohideen

30.A.Jaihudeen

31.M.Mohamed Ibrahim

32.K.M.Habeeb Rahaman

33.Y.Abdul Karim

34.N.Mohamed Hasbullah

35.N.Mohamed Khan

36.A.Sabeer Ahmed

37.K.Kattuvava Kannu

38.A.Abuthahir

39.N.Tameem Ansari

40.Hamadh

41.Mohamed Safiullah

42.Mujubir Rahman

43.A.S.Mujubir Rahman

44.Ahamed Salmon (RR3 to 44 impleaded as per order dated 26.10.2009 in M.P.(MD) 3 and 4 of 2009 in W.P.(MD) No.9789 of 2009.

(RR3 to 44 impleaded as per order dated 26.10.2009 in M.P.(MD) 3 and 4 of 2009 in W.P.(MD) No.10512 of 2009.

..Respondents 3 to 44 in both the writ petitions W.P.(MD) No.9789 of 2009 and W.P.(MD) NO.10512 of 2009 W.P(MD) No.9789 of 2009:

Prayer Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records relating to the order and resolution, dated 28.7.2009, of the first respondent in respect of its proceedings in Serial Nos.11, 13 14 of its agenda and item Nos.31, 62 and 60 of 2009, and Na.Ka.No.616/06/Aa15/Dindigul, W.E.a.No.13/08/Vu5/Dindigul, W.E.A.No.12/08/Vu5/Chennai and quash the same.

W.P(MD) No.10512 of 2009 and W.P(MD) No.11025 of 2009:

Prayer Writ Petitions filed under Article 226 of the Constitution of India for issuance of Writs of Certiorari to call for the records relating resolution dated 28.7.2009 and the consequential order, dated 18.9.2009, issued by the first respondent and published in Tamil Nadu Government Gazette No.40, dated 14.10.2009 and quash the same.

In W.P(MD) No.10512 of 2009 and W.P(MD) No.11025 of 2009:

!For Petitioners ... Mr. T.R.Rajagopalan senior counsel for Mr.G.R.Swaminathan ^For Respondents ... Mr.Prabhkaran for Mr.M.Subash Babu for RR3 to 43 Mr.Md.Riyaz for R44 In W.P.No.9789 of 2009:

For Petitioners ... Mr.T.R.Rajagopalan senior counsel for Mr.G.R.Swaminathan For Respondents ... Mr.M.V.S.Kumaraguru for RR3 to 43 Mr.Md.Riyaz for R44 :COMMON ORDER In all the above writ petitions, the resolution, dated 28.7.2009, and the consequential order, dated 18.9.2009, issued by the first respondent and published in the Tamil Nadu Government gazette No.40, dated 14.10.2009, are under challenge.

2. The first respondent Wakf Board had issued the order, dated 18.9.2009, for taking over the direct Management of the Batlagundu Thozhugai Pallivasal, Dindigul District, under its direct control, for a period of one year from the date of the said order and had appointed the second respondent as its executive officer. The said order, dated 18.9.2009, had been gazetted, on 14.10.2009.

3. The petitioners had stated that, as per the settled custom prevailing for over several decades, the Muslim Jamath of Batlagundu comprises of three groups, namely, Rowther Labbais, Parimala Sunnath and Daknies. Two Representatives are nominated from each of the groups to form the executive committee. From amongst the six persons selected to form the executive committee, one of them would be the President. Two other members of the Executive Committee would be the Secretary and the Treasurer. The remaining three members would function as the members of the executive committee. Three of the members of the committee would be chosen as the President, the Secretary, and the Treasurer.

4. It has been further stated that till 10.1.2000, one Hajee K.S.M.Mohamed Kasim, was holding the office of the President. He had died, on 13.11.2000. After a new committee had taken over, it became the subject matter of challenge, in W.O.P.No.3 of 2001, on the file of the Wakf Tribunal, at Dindigul. Due to the pendency of W.O.P.No.3 of 2001, the selection of the representatives of the Jammath could not take place from the year, 2004. While so, the first respondent had given instructions for convening the meeting of the Jammath to select a new set of office bearers in the year, 2007.

5. It has been further stated that, based on the said instructions, a meeting of the Jammath had been convened, on 11.1.2008, and the present set of office bearers were chosen and selected. K.S.M.Mohammed Mansoor and Noor Mohammed, had been selected as the representatives of Rowther Lebbai Jammath, Sheik Mohamed and M.P.Kalanda Mohideen were selected as the representatives of Parimala Sunnath Jammath and M.Babu @ Liakath Ali and J.Salahudeen, were selected as the representatives of Dakni Jammath. After the selection process had been completed, K.S.M.Mohammed Mansoor, had been chosen as the President, M.Liakath Ali had been chosen as the Secretary and M.P.M.Kalandar Mohideen, had been selected as the treasurer. The selection of the committee members and the office bearers had been duly communicated to the first respondent. The first respondent, instead of approving the selection, had taken a stand that the selection process had not been held in a proper manner and therefore, the first respondent had refused to accept the selection held, on 11.1.2008.

6. It has been further stated that the decision rejecting the request for the approval by the first respondent had been challenged by the Pallivasal, in W.O.P.No.4 of 2008, wherein an interim order of stay had been obtained by an order, in I.A.No.139 of 2008. The said order had been made absolute, on 1.12.2008. Therefore, the petitioner pallivasal had filed W.O.P.No.4 of 2008, before the Wakf Tribunal. The Tribunal had passed an interim order, on 26.11.2008, in I.A.No.139 of 2008, which is in force till date, after it had been made absolute, on 1.12.2008. While so, the impugned resolution, dated 28.7.2009, and the consequential order, dated 18.9.2009, had been issued by the first respondent and it had been published in the Tamil Nadu Government Gazette, dated 14.10.2009. By the said resolution, the first respondent had chosen to invoke the power available, under Section 65 of the wakf Act, 1995, by assuming the direct management of the Wakf. It had also been held that K.S.M.Mohammed Mansoor, should not continue as the Muthavalli and that he should be removed. By the same order, the petitioners have also been removed. No notice had been given to the petitioners, by the first respondent, before passing the impugned order.

7. It has been further stated that even though the President of the committee is referred to as the Muthavalli, the petitioner Wakf is being managed by the Committee consisting of six members, as per the established practice. Therefore, the removal of the committee members, along with the Muthavalli, without any notice having been issued to them is in violation of the principles of natural justice. Even though an appeal can be instituted before the Wakf Tribunal, it would not be an efficacious remedy. Further, when there is a gross violation of the principles of natural justice, as in the present case, this Court can entertain the writ petition, under Article 226 of the Constitution of India. The Wakf Board, the first respondent herein, does not have the jurisdiction to pass the impugned order. Only under certain circumstances, the order could be passed invoking Section 65 of the Wakf Act, 1995. As the duly selected committee has been functioning the calling for a fresh selection, by the first respondent, would be improper and invalid.

8. It has been further stated that by the impugned resolution, dated 28.7.2009, and the consequential order, dated 18.9.2009, passed by the first respondent Wakf Board taking over the direct management of the Batlagundu Thozhugai Pallivasal, in exercise of the powers conferred, as per Section 65 of the Wakf Act, 1995, by appointing the Superintendent of Wakf, Madurai, as its executive officer, for a period of one year from the date of the Board order, is arbitrary, illegal and void.

9. Mr. T.R.Rajagopalan, the learned senior counsel for Mr.G.R.Swaminathan, the learned counsel appearing for the petitioners, had submitted that a meeting had been convened for the selection of the committee members and the office bearers of the wakf, on 11.1.2008. Six committee members had been selected during the said meeting in which 312 members had participated. The minutes of the selection held, on 11.1.2008, had been sent to the first respondent Wakf Board, for its approval. However, the first respondent Wakf Board had rejected the request of the petitioner, by its proceedings, dated 23.4.2008, stating that the general body meeting held, on 11.1.2008, had not taken place in a peaceful and proper manner. Therefore, the first respondent Wakf Board had directed that a fresh election should be held for selecting the committee members. Against the said proceedings of the Wakf Board, dated 23.4.2008, the Batlagundu Thozhugai Pallivasal had filed, W.O.P.No.4 of 2008, before the Wakf Tribunal. In the interim application, in I.A.No.139 of 2008, an interim order of stay had been granted against the conducting of a fresh election, by an order, dated 1.12.2008. However, it had been stated that an appropriate action can be taken against the Muthavalli, for misfeasance and malfeasance committed by him. Based on the said clarification, the first respondent Wakf Board had initiated action against the Muthavalli. Thereafter, on 28.7.2009, the impugned resolution had been passed to take over the Management of the Batlagundu Thozhugai Pallivasal. A notification had also been issued by the first respondent, under Section 65 of the Wakf Act 1995, taking over the direct management of the Batlagundu Thozhugai Pallivasal, by appointing the superintendent of Wakf. A gazette notification had also been published, on 14.10.2009.

10. The learned senior counsel appearing for the petitioners had submitted that no notice had been issued to the petitioners before they had been removed from being the duly selected committee members. Therefore, any resolution passed without notice to all the committee members, including the Muthavalli, would be improper and illegal and contrary to the principles of natural justice.

11. The learned senior counsel appearing for the petitioners had further submitted that even though there is an alternative remedy of filing an appeal before the wakf Tribunal, under Section 64(4) of the Wakf Act, 1995, no appeal is provided, under Section 65 of the said Act with regard to the assumption of direct management by the wakf Board. The filing of an application against the notification issued by the Tamil Nadu Wakf Board, on 18.9.2009, published in the Tamil Nadu Government gazette, dated 14.10.2009, to the State Government is not an effective remedy. When the Tamil Nadu Wakf Board had taken over the Management, filing an appeal before the State Government is only an illusory remedy, as it would not be an efficacious remedy.

12. The learned senior counsel appearing for the petitioners had further submitted that the order under Section 64 of the Wakf Act, 1995, has been made without hearing all the members of the executive committee and the notification, under Section 65 of the Act, 1995, had been issued without satisfying the twin tests contemplated under Section 65 of the Wakf Act, 1995. There cannot be a single order, both under Section 64, as well as under Section 65 of the Wakf Act, 1995, since both the sections deal with different situations.

13. The learned senior counsel appearing for the petitioners had also submitted that W.P.No.9789 of 2009, had been filed by Liakath Ali, the Secretary of the Pallivasal, challenging the order and the resolution, dated 28.7.2009 of the first respondent Wakf Board, in respect of its proceedings in Serial Nos.11,13,14 of its agenda and item Nos.31, 62 and 60 of 2009 and Na.Ka.No.616/06/Aa15/Dindigul,W.E.a.No.13/08/Vu5/Dindigul, W.E.A.No.12/08/Vu5/Chennai, as the notification had not been gazetted, at that stage. However, since an order, under Section 65 of the Wakf Act, 1995, has been gazetted, the writ petitions in W.P.(MD).Nos.10512 of 2009 and 11025 of 2009, had also been filed before this Court, challenging the resolution, dated 28.7.2009, and the consequential order, dated 18.9.2009, issued by the first respondent and published in the Tamil Nadu Government Gazette No.40, dated 14.10.2009.

14. The learned counsel appearing for the petitioners had contended that the impugned order and the resolution of the first respondent are contrary to law and without jurisdiction, since it is against the express provisions of Section 65 of the Wakf Act, 1995. The impugned order has been passed by the first respondent Wakf Board, without holding a proper enquiry, as contemplated under Sections 70 and 71 of the Wakf Act, 1995. No notice had been issued, either to the Pallivasal or to the members of the executive committee. Even though a personal show cause notice had been issued, to Mr.Mansoor, the President of the Committee, the first respondent ought to have issued individual notices to the members of the executive committee before passing the impugned order, dated 18.9.2009. The first respondent Board had misconstrued the definition of the term 'Muthavalli'. 'Muthavalli' can be an individual or a committee or a corporation. When the Wakf in question is being managed by a committee of six members, the first respondent Wakf Board had erroneously proceeded on the premise that Mansoor, who is the President of the committee, is the 'Muthavalli. The office of Muthavalli, in respect of the Wakf in question, has not been vacant and therefore, the circumstances contemplated, under Section 65 of the Wakf Act, 1995, are absent. Since the order, dated 26.11.2008, made in I.A.No.139 of 2008, in W.O.P.No.4 of 2008, is in force, the first respondent ought not to have passed the impugned resolution, dated 28.7.2009, and the consequential order, dated 18.9.2009.

15. The learned counsel appearing for the petitioners had contended that the all the members of the committee ought to have been made as a party to the proceedings. Therefore, the impugned resolution of the first respondent Board, dated 28.7.2009, cannot be held to be binding on the petitioner. The first respondent Board ought not have passed the impugned resolution, dated 28.7.2009, and the consequential order, dated 18.9.2009, without there being a vacancy in the post of 'Muthavalli'. Since the first respondent Board had passed the impugned resolution, dated 28.7.2009, and the consequential order, dated 18.9.2009, without following the principles of natural justice, they are arbitrary in nature, illegal and void.

16. The learned counsel had further contended that the first respondent Wakf Board ought to have taken into account the interim order passed by the Wakf Tribunal, dated 1.12.2009, in I.A.No.139 of 2009, in W.O.P.No.4 of 2009. The first respondent Board had passed the impugned order, dated 18.9.2009, and had published it in the Tamil Nadu Government Gazette, dated 14.10.2009, under section 65 of the Walf Act, 1995, without having the jurisdiction to do so, especially, when the circumstances contemplated under section 65 of the Wakf Act, 1995, are clearly absent. When a duly selected committee is functioning and when the fresh selection ordered to be held by the first respondent Board had been stayed by the Wakf Tribunal, by its order, dated 1.12.2009, the notification issued under section 65 of the Wakf Act, 1995, is unwarranted and illegal.

17. The learned counsel appearing on behalf of the petitioners had relied on the following decisions in support of his contentions: 17.1. In S.L.KAPOOR Vs. JAGMOHAN ((1980) 4 SCC 379), the Supreme Court had held that the old distinction between a judicial act and an administrative act has withered away and now, even an administrative order, if it involves civil consequences, must comply with the rules of natural justice. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.

A committee, as soon as it is constituted, at once, assumes a certain office and status and it is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. The status, office, rights and responsibilities referred to and the expectation of the committee to serve its full term of office would certainly create sufficient interest in the municipal committee, and their loss, if superseded, would entail civil consequences, so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed. The requirements of natural justice are met, only if an opportunity to represent is given, in view of the proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose.

17.2. In H.N.BHIWANDIWALA Vs. ZOROASTRIAN CO-OP.CREDIT BANK LTD., (AIR 2001 BOMBAY 267), it was held that in the case of a trust, which is not a legal entity, all the trustees should be joined if a legal action is initiated against a trust. This view was taken by a Full Bench of the Gujarat High Court, reported in Atmaram Ranchhodbhai Vs.Gulamhussain Gulam Mohiyaddin (AIR 1978 Guj 113). A similar view was also taken by the Bombay High Court in a decision reported in Venkatesh Iyer V. Bombay Hospital Trust (AIR 1998 BOM 373). 17.3. In MUMTAZ POST GRADUATE DEGREE COLLEGE Vs. VICE-CHANCELLOR (2009) 2 SCC 630), the Supreme Court had held that the availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction, although there exists an alternative remedy.

17.4. In M.ALI HUSSAIN Vs. T.N.WAKF BOARD (2009 2 MLJ 342) this Court had held that a person, who is removed from the Office of Mutawalli, under clauses

(a), (b) or (k) of sub-section (1) of Section 64 of the Wakf Act, 1995, though not entitled to file an appeal under Section 64(4), will be entitled to file an application before the Tribunal, under Section 83(2) of the Act. The scheme of the Wakf Act suggests that the law makers intended to have Special Tribunals constituted by the State Government for the determination of any dispute and to confer wide powers upon those Tribunals, so that the role of the Civil Court is kept to the minimum, though the Act did not impose an absolute bar upon the jurisdiction of the Civil Courts. This can be appreciated by a combined reading of Sections 83,84 and 85 of the Act. The Court has to adopt such an interpretation to Section 83(2), on the scope of the jurisdiction of the Tribunal, that would sub-serve the purpose for which the Tribunal was constituted under the Act. Though the Act did not completely take away the jurisdiction of the Civil Court, the scheme of the Act is aimed at keeping the role of the Civil Court to the barest minimum. Therefore, unless the words "any dispute, question or other matter" appearing in Section 83(2) are construed to have a wider connotation, the purpose of creation of a Special Tribunal, under the Act, would be defeated. The Tribunal is conferred even with original powers, wherever the disputes related to Wakf properties. Therefore, when a Mutawalli is removed on a charge of misappropriation, the same would naturally relate to a property of the Wakf. Consequently, the interpretation entitling such a person to invoke the jurisdiction of the Tribunal, under Section 83(2), would be consistent with the other provisions and the entire Scheme of the Act.

17.5. In W.P.No.24473 of 2007, by an order dated 20.12.2007, (MOINUDEEN SHERIFF Vs. MUKRAM SHERIFF & OTHERS), this Court had held that it is premature for the petitioner to approach this Court, by way of a writ petition, challenging the notice issued by the Tamil Nadu Wakf Board, requesting the petitioner to appear on the assigned date, with all the relevant records in his possession, to decide the issues pending before it. If any order is passed based on the enquiry, or even if the said notice, dated 22.6.2007, impugned in the writ petition is taken to be an order, it would be open to the petitioner to challenge the same before the Wakf Tribunal, under Section 83(2) of the Wakf Act, 1995.

18. In the counter affidavit filed on behalf of the respondents 1 and 2, in W.P.No.10512 of 2009, the averments and allegations made by the petitioners have been denied. It has been stated that the writ petitions are not maintainable, both on facts and in law. The petitioners have a statutory alternative remedy, by way of an appeal, to the Wakf Tribunal, at Dindigul, or to the State Government under Sub-section 2 of Section 65 of the Wakf Act, 1995. Therefore, the petitioners cannot invoke the extra ordinary original jurisdiction of this Court, by filing the writ petitions before this Court, under Article 226 of the constitution of India.

19. It has also been pointed out that, in SALAM KHAN Vs. THE TAMIL NADU WAKF BOARD & OTHERS (2005-1-L.W.676), a Division Bench of this Court had held that the Wakf Tribunal can decide all disputes, questions and other matters relating to a wakf or a wakf property. The words "any dispute, question or other matters relating to a wakf or wakf property" are, in our opinion, words of a very wide commutation.

20. The said decision of the Division Bench had been questioned before the Supreme Court, in S.L.P. (Civil) No.4156 of 2005. The Supreme Court had dismissed the the Special Leave Petition, confirming the decision of the Division Bench of this Court. Accordingly, the present writ petitions filed by the petitioners, before this Court, are not maintainable.

21. The respondents 1 and 2 had further stated that the view taken by the Division Bench of this Court, in SALAM KHAN Vs. THE TAMIL NADU WAKF BOARD & OTHERS (2005-1-L.W.676), had also been confirmed in the decisions of this Court, in MUKRAM SHERIF Vs. MOINUDEEN SHERIFF & ANOTHER (2005-2-L.W.615) and V.S.D. SIDDANDAR Vs. K.M.KHADER JAIN (2006) 6 MLJ 1800).

22. It has also been stated that the Kerala High Court, in A.B.P.HAJI Vs. P.CHERIYAKOYA (AIR 2003 KERALA 366) and this Court, in M.ALI HUSSAIN Vs. T.N.WAKF BOARD (2009 2 MLJ 342) has also taken a similar view. This Court, in M.ALI HUSSAIN Vs. T.N.WAKF BOARD (2009 2 MLJ 342), had held that a person who is removed from the office of the Mutawalli, under clauses (a), (b) or (k) of sub- section (1) of Section 64 of the Wakf Act, though not entitled to file an appeal under Section 64(4), will be entitled to file an application before the Tribunal, under Section 83(2) of the Act.

23. It has been further stated that the Principal Sub Court, Dindigul, would be the Wakf Tribunal for the disputes arising within the District of Dindigul, as per Section 83 (1) of the Wakf Act, 1995. Further, the deponent, who has filed the affidavit in support of the petitioner M.Liakath Ali, in W.P.(MD) No.9789 of 2009, has no right to swear to an affidavit filed in support of the writ petition, as the Secretary of mosque, as his tenure had expired, on 26.4.2008.

24. The respondents 1 and 2, in W.P.(MD) No.9789 of 2009, had further stated that the Batlagundu Thozhugai Pallivasal, Dindigul District, is situated at Batlagundu, Dindigul District. Originally, Batlagundu had formed a part of the Madurai District. At the time of the wakf survey, pursuant to the Wakf Act, it had been surveyed and notified, with No.G.S.236/MDU. The wakf Board, by virtue of Section 32 of the Wakf Act, 1995, and the other connected sections has supervisory control over the mosque. The wakf Board had appointed a committee, consisting of six members, for a period of three years. The wakf Board, by its resolution, dated 12.9.1989, had removed the then Mutavalli, K.M.S.Mohamed Kasim, and it had taken over the management of the mosque. As such, it was under the control of the Wakf Inspector, Periyakulam, as its executive officer. Challenging the said order, the Mutavalli had filed a writ petition, in W.P.No.14746 of 1989. Even though an order of stay had been granted, initially, the said order had been vacated, subsequently. Thereafter, on 10.11.2000, the writ petitioner had passed away.

25. It had also been stated that one Mohammed Mansoor had filed W.O.P.No.2 of 2000, seeking for an order to restrain the Board from interfering with the management of the mosque. The said suit had been withdrawn and the board had appointed 6 persons headed by Mohamed Mansoor, as members of the Managing committee to hold office till 26.4.2004. However, after 25.4.2004, no general body meeting had been convened. Therefore, the President had been directed under the proceedings, in Rc.616/06/C4/PKM to convene a general body meeting in the presence of the wakf officials. Therefore, the second respondent, by his letter, dated 11.12.2007, had called upon the president to convene a general body meeting in the presence of the wakf board officials to elect new office bearers to the management committee of the mosque. Thereafter, a general body meeting had been convened, on 11.1.2008. The Superintendent of Wakf, Madurai, and the Wakf Inspector, Dindigul and Madurai, in charge of Periyakulam, were present during the general body meeting. The President of the Wakf had read out the list of office bearers, without holding an election. Thereafter, disputes had arisen, among the Jamathars, resulting in clamour and tumult. No decision had been taken by the General body on the said date and no one was elected as a member of the committee of the management by the Jammath. The officials, as well as the members had dispersed, without taking any decision. Thereafter, a report, dated 18.1.2008, had been filed by the second respondent. Based on the report, as well as the several representations received from the Jamathars, requesting that an election should be held for the smooth functioning of the mosque, the election had been held.

26. After three months, a representation had been made by the President claiming that he represents three groups. However, since no election had been conducted, the Board did not accept the representation. The views of the Tamil Nadu Wakf Board had been intimated to the President by the communication, dated 23.4.2008, and the second respondent had been directed to hold the election by a system of secret ballot. The said communication had been challenged by the President, in W.P.No.12398 of 2008. However, the said writ petition had been dismissed by this Court, on 31.7.2008, giving liberty to the writ petitioner to file an appeal before the wakf Tribunal, before 20.8.2008. An interim order of status quo had also been granted till then.

27. It has been further stated that the writ petitioner, Mohamed Mansoor, had approached the Wakf Tribunal by filing a Wakf Original Petition, in W.O.P.No.4 of 2008, and he had also obtained an order of stay of the direction of the board to hold election, till the disposal of W.O.P.No.4 of 2008. The interim order had been granted by the Tribunal, in I.A.No.139 of 2008. The Wakf Tribunal, while disposing of the interlocutory application, in I.A.No.139 of 2008, along with the other applications for impleading, for appointment of receiver and for injunction restraining Mohamed Mansoor from interfering with the election process, had passed a common order, on 26.11.2008, observing that it would be open to the Wakf Board to initiate action against the president for his misfeasance and malfeasance, alleged to have been committed by him, in the administration of the wakf, in the manner known to law. While so, the Tamil Nadu Wakf Board had received several complaints levelling serious allegations against him. A writ petition in W.P.No.20090 of 2008, had been filed before this Court praying for a direction to initiate action against the president of the mosque, namely, Mohamed Mansoor, based on the report of the second respondent. The said writ petition had been disposed of, on 1.12.2008, by directing the wakf board to issue notice to the writ petitioner and to the President Mohamed Mansoor, based on the report of the second respondent, within a period of two weeks from the date of receipt of a copy of the said order. On receipt of a copy of the order, the writ petitioner, as well as Mohamed Mansoor were directed to file an explanation, within a period of four weeks. On receipt of the explanation, the board had been directed to conduct an enquiry and to pass appropriate orders, in accordance with law, within a period of eight weeks thereafter.

28. In the meantime, some of the parties to the wakf original proceedings had challenged the order of the wakf Tribunal before this Court, in C.R.P.(MD) Nos.10 to 14 of 2009, and it had been disposed of by this Court, without any notice having been issued to the Board, on 9.1.2009, by recording the undertaking given by the Mutavalli and by directing the wakf Tribunal to dispose of the W.O.P.Nos.3 and 4 of 2008, by 27.2.2009. Based on the directions issued by this Court, in W.P.No.20090 of 2008, a show cause notice had been issued to the parties, on 13.1.2009, calling for their explanation. To the said show cause notice, the president Mohamed Mansoor, had submitted an explanation, on 5.11.2009, by post. The Presidents of the three jamaths had also offered their explanation.

29. The petitions submitted by the complainants had been taken on file, as Wakf Enquiry Petition Nos.12/08/E5/Dindigul and 13/08/E5/Chennai, along with the complaint on the writ petitioner, Ahamed Salmon, in W.P.No.20090 of 2008. Thereafter, notices had been issued to the parties concerned, directing them to appear for the enquiry, on 24.2.2009, 30.6.2009 and 28.7.2009. The President of the Wakf had not turned up, personally, for the enquiry and he was represented only by his counsel. The Board, after careful consideration of the issues raised before it, had unanimously resolved, by its resolution, dated 28.7.2009, to remove Mohamed Mansoor from the post of the President/Mutavalli of the wakf and his committee, as his continuation in the said post was against the interest of the wakf and as the charges levelled against the President had been found proved. It had been further resolved to take over the wakf, under the direct management of the Board, as there were no suitable persons available to look after the wakf. Since the period of the management committee had already expired, on 26.4.2004, it had also been resolved to appoint the superintendent of the wakf, Madurai, as its executive officer, by invoking Section 65 of the Wakf Act, 1995. In such circumstances, the second respondent had been appointed as its executive officer, for the administration of the wakf.

30. It has been further stated that an explanation had been called for from Mohamed Mansoor, only in his capacity as a mutavalli/president of the Wakf and the notice had been issued to him only since he was holding the position of the head of the committee. Therefore, there is nothing wrong in the procedures followed by the Tamil Nadu Wakf Board, in issuing the impugned proceedings. Since the petitioner has an efficacious alternative remedy, under the Wakf Act, before the State Government, under Sub Section 2 of Section 65 of the Wakf Act, 1995, the present writ petition is not maintainable before this Court, under Article 226 of the Constitution of India.

31. In the common counter affidavit filed by Ahamed Salmon, in W.P.No.9789 of 2009 and W.P.No.10512 of 2009, it has been stated that the first respondent Wakf Board had found, after a thorough enquiry, that serious misconduct and maladministration had taken place in the affairs of Batlagundu Tholugai Pallivasal and therefore, by a resolution, dated 28.7.2009, the first respondent had taken over the direct management of the mosque, for a period of one year and it had appointed the second respondent as its executive officer. Challenging the said proceedings, the writ petition, in W.P.No.9789 of 2009, had been filed before this Court.

32. It had also been stated that, in the exercise of the powers conferred under the provisions of the Wakf Act, 1995, the Tamil Nadu Wakf Board, the first respondent in the writ petition, had notified the taking over of the direct control of the management of the Batlagundu Tholugai Pallivasal, in the Government gazette No.40, dated 14.10.2009. Accordingly, the first respondent had also issued an order, enclosing the gazette notification, to the second respondent to take direct control over the management of the mosque. Based on the said order, the second respondent had taken over the possession and the direct control of the management of the Batlagundu Tholugai Pallivasal and its property, namely, Iqbalia Middle School, in the presence of the revenue officials. The entire process had been duly acknowledged by the Village Administrative Officer concerned, by affixing a notice, dated 15.10.2009, in the notice board of the mosque. On the same day, a notice had been issued to all the tenants and Iqbalia Middle School, and an intimation had been sent that an executive officer had been duly appointed by the Tamil Nadu Wakf Board and that all communications, in respect of the affairs of the wakf should be communicated to him. A general notice had also been published, on 16.10.2009, by way of a paper publication.

33. It had also been stated that after taking over of the possession by the second respondent, one M.P.Kalandar Mohideen, claiming to be a committee member of the mosque, had challenged the gazette notification, dated 14.10.2009, on the ground that he had not been heard before the passing of the resolution and the publication of the notification. Since the writ petitioners are not the recognised committee members, they need not be heard by the wakf board. The entire affairs in respect of the administration of the wakf is vested only with the Muthavalli of wakfs. As per the provisions of the Wakf Act, the Muthvalli is solely responsible for the administration of the wakf and its properties. Therefore, on failure of the muthalvalli in administering the wakf and its properties, Section 64 of the Wakf Act, 1995, could be invoked by the first respondent Wakf Board.

34. It has been further stated that K.S.M.A.Mohamed Mansoor was the Muthavalli of the Wakf in the Batlagundu Tholugai Pallivasal and the Wakf Board had accepted him as the Muthvalli. However, his period had come to an end, on 26.4.2004. Since the first respondent Board was making efforts to hold fresh election for the Batlagundu Tholugai Pallivasal, K.S.M.A.Mohamed Mansoor, has been resisting the same, as he has been enjoying the funds of the wakf by misappropriating the same for his personal gains. In such circumstances, the impugned proceedings of the first respondent Board cannot be said to be arbitrary or illegal. In fact, such proceedings had been initiated due to the maladministration of the President and the committee members. An alternative remedy is available, under section 65(2) of the Wakf Act, 1995, which enables any person interested in the wakf to challenge the notification before the State Government. Hence, the writ petitions filed by the petitioner are not maintainable.

35. The learned counsel appearing on behalf of the respondents had relied on the following decisions in support of his contentions: 35.1. In MUKRAM SHERIF Vs. MOINUDEEN SHERIFF & ANOTHER (2005-2-L.W.615), a Division Bench of this Court had held that as laid down in 2005-1-L.W.676, all disputes relating to wakf should be filed, in the first instance, before the Wakf Tribunal, constituted under Section 83 of the Wakf Act, 1995. Hence, writ petitions should not be entertained, directly.

35.2. In SALAM KHAN Vs. THE TAMIL NADU WAKF BOARD & OTHERS (2005-1- L.W.676), a Division Bench of this Court had held that all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995. Writ petitions should not be entertained by this Court, straightway, under Article 226 of the Constitution of India. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, words of very wide connotation.

Any dispute, question or other matters, whatsoever and in whatever manner, which arises relating to a Wakf or Wakf property, can be decided by the Wakf Tribunal.

Even though an alternative remedy is not an absolute bar to the filing of the writ petitions, it is well settled that the writ jurisdiction is a discretionary jurisdiction and when there is an alternative remedy, ordinarily, a party must resort to that remedy first before approaching this Court. Entertaining writ petitions straightway, without insisting that a party should first avail of the alternative remedy, is an over-liberal approach which has caused immense difficulties to the High Courts in the country because they have added to the huge arrears.

The Tribunal has all the powers of the Civil Court, under the Code of Civil Procedure, and hence, it has also powers, under Order 39 Rules 1, 2 and 2A to grant temporary injunctions and to enforce such injunctions. A Party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he is aggrieved. Even if an order has been passed prior to the commencement of the Wakf Act, 1995, or a dispute, question or matter has arisen before the commencement of the said Act, the Wakf Tribunal can adjudicate upon such issues.

36. In W.P.No.30 of 2001, by an order, dated 23.9.2005, (NAINA MOHAMMED JAMAATH PALLIVASAL AYYAPURAM, NADU STREET Vs. TAMIL NADU WAKF BOARD & OTHERS), this Court, while disposing of the writ petition, had held that the petitioner's complaint that no opportunity had been given before the Tamil Nadu Wakf Board had assumed direct management of the petitioner Pallivasal had been rejected. The Wakf Board was right in forming an opinion that the interest of the wakf must be protected and if there was no suitable person to be appointed as Mutavalli, the wakf must be administered by the Board. This Court is in the position of 'parens patria' in respect of all trusts. In fact, the petitioner should have, zealously, ensured that the wakf's interest was safeguarded. Therefore, the act of the Tamil Nadu Wakf Tribunal, in invoking section 65(1) of the Wakf Act, 1995, by assuming direct management of the wakf, was valid in the eye of law. In the said decision, a decision of the Supreme Court in THE CHAIRMAN, BOARD OF MINING EXAMINATION AND CHIEF INSPECTOR OF MINES Vs. RAMJEE (1977 (2) S.C.C.256) had been quoted, wherein, the Supreme Court had observed that natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical, nor fanatical but should be flexible, yet firm, in this jurisdiction. No man shall be hit below the belt "that is the conscience of the matter."

37. In the additional affidavit filed on behalf of the petitioner, in W.P.MD No.10512 of 2009, it has been stated that, on 16.10.2009, the second respondent, with a group of about 10 lawyers from Chennai, had come down to Batlagundu. at about 3.00 p.m. The office bearers and members of the executive committee of the Pallivasal had informed the second respondent that a writ petition had already been filed by the Secretary of the Pallivasal, namely, Liyakath Ali and that this Court had ordered notice in the sad writ petition. Without formally serving the order, dated 18.9.2009, passed under Section 65 of the Wakf Act, 1995, the second respondent has been attempting to take over the possession of the pallivasal. The additional affidavit had been filed to reiterate the fact that the possession, control and administration of the pallivasal continues to e with the petitioner and the other members of the committee.

38. In view of the submissions made by the learned counsels appearing on behalf of the petitioners, as well as the respondents and on a perusal of the records available before this Court and in view of the decided cases cited by the learned counsels, at the time of the hearing of the writ petitions, this Court is of the considered view that the petitioners have not shown sufficient cause or reason for this Court to grant the reliefs, as prayed for by them, in the writ petitions.

39. In view of the fact that an efficacious alternative remedy has been provided for in the Wakf Act, 1995, it is not open to the petitioners to invoke the writ jurisdiction of this Court by filing the writ petitions, under Article 226 of the Constitution of India.

40. Sub Section 4 of Section 64 of the Wakf Act, 1995 reads as follows: "(4) A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (j) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final."

41. Sub sections 1 and 2 of section 65 of the wakf Act 1995, read as follows:

"65. Assumption of direct management of certain wakfs by the Board-

"(1) Where no suitable person is available for appointment as a mutawalli of a wakf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling up of the vacancy in the office of a mutawalli is prejudicial to the interests of the wakf, the Board may, by notification in the Official Gazette, assume direct management of the wakf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notification.

(2) The State Government may, on its own motion or on the application of any person interested in the wakf, call for the records of any case for the purpose of satisfying itself as to the correctness, legality or propriety of the notification issued by the Board under sub-section (1) and pass such orders as it may think fit and the orders so made by the State Government shall be final and shall be published in the manner specified in sub-section (1)."

42. Sub sections 2 of Section 83 of the Wakf Act 1995, reads as follows: "(2) Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf."

43. According to sub Section 2 of section 65 of the Wakf Act, 1995, any person interested in the wakf can move an application before the State Government challenging the correctness or legality or propriety of the notification issued by the Tamil Nadu Wakf Board under sub section 1 of section 65 of the Wakf Act, 1995. In fact, an appropriate proceedings had also been initiated before the Wakf Tribunal, in respect of the questions arising regarding the administration of the wakf and its properties. When such efficacious alternative remedies are available under the provisions of the wakf Act, 1995, it is not open to the petitioners to invoke the extraordinary original jurisdiction of this Court by filing the writ petitions, under Article 226 of the Constitution of India. According to the various decisions cited by the learned counsel appearing on behalf of the respondents, the only conclusion, which can be arrived at by this Court, is that the writ petitions are not maintainable, as it is open to the petitioners to invoke the relevant provisions of the Wakf Act, 1995, to agitate their rights and to seek the necessary reliefs, as prayed for in the writ petitions.

44. It is seen from the decision in SALAM KHAN Vs. THE TAMIL NADU WAKF BOARD & OTHERS (2005-1-L.W.676), that a Division Bench of this Court had categorically held that all matters pertaining to Wakfs should be filed, in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995. Therefore, the writ petitions filed, under article 226 of the Constitution of India should not be entertained straightway. Though an alternative remedy is not an absolute bar in filing of the writ petitions, it is a well settled position of law that the writ jurisdiction being a discretionary jurisdiction, the parties may not be permitted to approach this Court by invoking article 226 of the constitution of India, especially, when alternate remedies are available under the relevant provisions of law.

45. Further, in a recent decision of this Court, in M.ALI HUSSAIN Vs. T.N.WAKF BOARD (2009 2 MLJ 342), it has been held that the person, who has been removed from the office of the Mutavalli, under the various clauses of the wakf Act, 1995, though he may not be entitled to file an appeal, under section 64(4), he will be entitled to file an application before the Tribunal, under Section 83(2) of the Act.

46. In W.P.No.30 of 2001, dated 23.9.2005, (NAINA MOHAMMED JAMAATH PALLIVASAL AYYAPURAM, NADU STREET Vs. TAMIL NADU WAKF BOARD & OTHERS) and in W.P.No.24473 of 2007, dated 20.12.2007, (MOINUDEEN SHERIFF Vs. MUKRAM SHERIFF & OTHERS), it has been held that the appropriate remedy, that would be available to the petitioners, would be to avail the remedies provided under the provisions of the Wakf, Act, 1995.

47. Though it is clear from the decisions relied on by the learned counsel appearing for the petitioners that even if an alternative remedy is available, this Court could interfere with the impugned proceedings, by invoking the extraordinary original jurisdiction of this Court, under Article 226 of the Constitution of India, and even though this Court has very wide powers in its discretionary jurisdiction, such powers are invoked only under extraordinary circumstances. When alternative remedies are available to the petitioners, under the provisions of the Wakf Act, 1995, including Sections 64,65 and 83, whichever may be relevant and appropriate to the facts and circumstances of the case, the petitioners are expected to avail such remedies, unless it can be shown by them that the prevailing situations warrant the interference of this Court, by invoking its extraordinary jurisdiction, under Article 226 of the Constitution of India.

48. In the writ petitions before this Court no such situation has been shown to be prevailing and therefore, this Court does not chose to interfere with the impugned proceedings, challenged in the present writ petitions. Though the powers of this Court are vast, extraordinary and far-reaching, the power of this Court, under its discretionary jurisdiction would not be invoked or exercised, unless it is found to be really necessary to grant the reliefs, as prayed for by the petitioners, in the present writ petitions. This Court cannot be like a bull in a China shop.

49. Even though various issues had been raised in the writ petitions and elaborate arguments had been made by the learned counsels, this court is not inclined to test the merits of the issues raised by the parties concerned, at this stage, as it is likely prejudice the decisions, which may be made by the appropriate forum or the authorities concerned. Accordingly, the writ petitions are dismissed, making it clear that it would be open to the parties concerned to avail the alternative remedies, which are available under the provisions of the Wakf Act, 1995. It is made clear that this Court, by this order, has not expressed any opinion on the merits of the matters. No costs. Consequently, connected M.P.(MD) Nos.1, 2 and 3 of 2009 are closed.

lan To

1. The Chief Executive Officer The Tamil Nadu Wakf Board No.1, Jafer Syrang Street, Vellai Seethakkathi Nagar, Chennai-600 001

2. The Superintendent of Wakf's Southern Zone, No.1, Town Hall Road, Madurai-625 001