As similar issues are arising for consideration in both the writ petitions and the parties are one and the same, a common order is passed by this Court in the above writ petitions.
2. Heard the learned counsel appearing for the petitioner and the learned counsels appearing for the respondents.
3. This writ petition has been filed praying for a Writ of Certiorarified Mandamus, to call for the records and quash the impugned order, issued by the first respondent by his proceedings, in Se.Mu.No.16031/07/Aa11/Thanjai, dated 12.11.2009, pursuant to the Board resolution issued by the second respondent, in Na.Ka.No.16031/07/Aa11/Thanjai, dated 23.9.2009, and consequently, to direct the first respondent to notify the petitioner, as per
Section 42(i) and
Section 63 of the Wakf Act, 1995
4. It has been stated that P.K.P.Abdul Azeez had been elected as the President/Muthavalli of the petitioner Pallivasal, by a resolution, dated 23.12.2008, in the place of Tajudeen, the former President/Muthavallai of the petitioner Pallivasal, who had died, on 19.12.2008. Thereafter, the petitioner has been functioning as the President/Muthavalli of the petitioner Pallivasal, after the previous office bearers had been removed by the majority of the Jamathdars, due to their maladministration.
5. It has been further stated that the Jamathdars of the petitioner Pallivasal had convened a meeting, on 25.6.2008, and they had unanimously elected A.Anwar Basha, P.K.P.Abdul Ajeez, R.Mohamed Haneef, A.Sirajudeen and M.Jamal Mohamed. Thereafter, the second respondent had communicated the same to the first respondent, on 23.7.2008. However, the necessary notification, from the first respondent, had not been issued.
6. In the meanwhile, the former Muthavalli, Tajudeen had communicated the change of the management to the first respondent before he had died, on 19.12.2008. Thereafter, the petitioner had been elected as the Muthavalli, by a valid resolution of the office bearers, on 23.12.2008. A communication had been sent to the respondents 1 and 2, on 23.12.2008, stating that the petitioner and his office bearers were carrying on the management and administration of the Pallivasal, from 25.6.2008. The previous committee members had not challenged the change of management, under
Section 42 of the Wakf Act, 1995, or the appointment of the Muthavalli, under
Section 63 of the said Act, till date.
7. It has been further stated that since the first respondent had not notified the change of management, a writ petition had been filed before this Court, in W.P.(MD) No.8970 of 2009 and the said writ petition is still pending. While so, the first respondent had passed the impugned order, dated 12.11.2009, stating that the management of the petitioner Wakf had been brought under the direct administration of the Wakf Board, from 23.9.2009, for a period of six months and that the Wakf Superintendent had been directed to take charge from the concerned office bearers. Thereafter, the second respondent had passed the impugned order, dated 7.12.2009, stating that he would be taking charge of the administration of the petitioner Pallivasal. In such circumstances, the petitioner has preferred the present writ petition before this Court, under
Article 226 of the Constitution of India.
8. The main contention of the learned counsel for the petitioner is that the impugned order of the first respondent, is unsustainable and untenable, both in law and on facts. The first respondent ought not to have invoked
Section 65 of the Wakf Act, 1995, when the recommendation was pending before him on the notification, under
Section 42(i) and
Section 63 of the Wakf Act, 1995.
9. The learned counsel had also submitted that the first respondent ought not to have taken into consideration the order passed by the Revenue Divisional Officer, Kumbakonam, as it had been set aside by this Court. Further, the first respondent ought to have seen that the issue relating to the notification, regarding the change of management, was pending before him. The first respondent had also failed to take into consideration the fact that P.K.P.Abdul Azeez and the other office bearers had been validly elected by the Jamathdars.
10. Mr.K.Senthil the learned counsel, appearing on behalf of the first and the second respondents and Mr.S.C.Herold Singh, appearing for the third respondent, had submitted that the impugned order of the first respondent, dated 12.11.2009, had been passed, under
Section 65(1) of the Wakf Act, 1995, by which the first respondent Wakf Board had assumed direct management of the petitioner Pallivasal. As such an appellate remedy has been provided, under
Section 65(2) of the Wakf Act, 1995, to challenge the said proceedings before the State Government. Therefore, the present writ petition is not maintainable before this Court, under
Article 226 of the Constitution of India.
11. The learned counsel appearing on behalf of the petitioner had submitted that the impugned order of the first respondent should be taken to be an order passed, under
Section 67 of the Wakf Act, 1995. Even if the said submission of the learned counsel for the petitioner is accepted the aggrieved person could file an appeal to the Wakf Tribunal, as provided therein.
12. In view of the averments made on behalf of the petitioner Pallivasal and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned, it is clear that the petitioner has not shown sufficient cause or reason to interfere with the impugned proceedings of the first and the second respondents, as prayed for by the petitioner, in the present writ petition. It is well settled in law that when an alternative remedy is available, it is not open to the petitioner to invoke the writ jurisdiction of this Court by filing a writ petition, under
Article 226 of the Constitution of India, except in certain exceptional cases.
13. The above said proposition had been reported in the following decisions:
13.1. In Salam Khan Vs. The Tamil Nadu Wakf Boad & 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 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."
13.2. 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.
14. In such view of the matter, this Court is not inclined to go into the merits of the issues arising for consideration in the present writ petition. It is for the petitioner to agitate the matter before the appropriate forum, as provided under the provisions of the Wakf Act, 1995. In such circumstances, the writ petition in W.P.(MD) No.13078 of 2009, is dismissed. No costs.
15. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the respondents had submitted thats in view of the order passed by the first respondent in his proceedings, in V.No./Taj./E.S.No.38/Taj, dated 7.12.2009, assuming direct management of the petitioner Pallivasal, the writ petition in W.P.(MD) No.8970 of 2009, has become infructuous.
16. The learned counsel appearing on behalf of the petitioner had not refuted the submission made by the learned counsel appearing on behalf of the respondents.
17. Hence, the writ petition in W.P.(MD) No.8970 of 2009 stands closed, as no further orders are necessary in the present writ petition, at this stage. However, the petitioner would be at liberty to agitate the matter, at a later stage, after the issue relating to the assumption of direct management of the petitioner Pallivasal by the respondent Wakf Board is settled, finally. No costs. Consequently, connected miscellaneous petitions are closed.
sd/-
To
1.The Chairman, Tamil Nadu Wakf Board, Chennai-600 001.
2.The Wakf Superintendent, No.27, Neethi Nagar, Thanjavur.
3.The Inspector of Police, East Police Station, Kumbakonam, Thanjavur District.