The Honourable Mr v. Tamil Nadu Wakf Board

In the High Court of Judicature at MadrasDated: 20.11.2007Coram:The Honourable Mr.Justice P.JyothimaniW.P.No.32054 of 2007& M.P.No.1 of 2007Nafisudeen .. Petitionervs.Tamil Nadu Wakf Board,Rep. by its Chief Executive Officer,No.3, Santhome High Road,Chennai-4. .. RespondentWrit Petition filed under Article 226 of the Constitutionof India, praying for issuance of a Writ of Certiorarifiedcalling for the records of the respondent in their proceedingsNa.Ka.No.16498/Aa1/03/Thu.Kudi, dated 11.9.2007 and quash thesame.For petitioner : Mr.M.Liagat AliFor respondent : Mr.S,F.Mohamed YousufOrderHeard learned counsel appearing for the petitioner andlearned Standing Counsel appearing for the respondent-Tamil NaduWakf Board.2. This Writ Petition is filed challenging the order of therespondent-Wakf Board, dated 11.9.2007, by which the petitionerwho was acting as Muthavalli of Kattu Magadoom PallivasalDargah, Veerapandiapattinam Village, Tiruchendur Taluk (V.O.C.District) was removed on the basis of certain charges. 3. The case of the petitioner is that the said Dargah is anotified "Wakf". According to the petitioner, the said Wakf(Dargah) was under the management of his father's elder brotherMagadoom Mohideen of Kayamozhi Village and after his demise, itwas managed by his descendants. The said Late Magadoom MohideenMaraicair had purchased 8 acres in S.R.No.329/1 of VeerapandiVillage and that the property became part and parcel of the saidDargah, which was constituted by the family. As per the trust https://hcservices.ecourts.gov.in/hcservices/ deed executed by the said Magadoom Mohideen Maraicair, theproperty was dedicated on the basis that the management of theWakf should be by the descendants. The said Wakf was confirmedby the Special Officer of the Tamil Nadu Wakf Board, recognisingthe petitioner as Muthavalli of the said Wakf (Dargah). Appealfiled by third parties was also dismissed by the Government, andtherefore, ultimately, the petitioner was confirmed to be thehereditary Muthavalli. 4. When a suit was filed by one Hajee Kulam Mohammed Thambyin O.S.No.6455 of 1993 before the City Civil Court, for adeclaration against the above said order of the Special Officerof the Tamil Nadu Wakf, as also the confirmation order passed bythe Government in favour of the petitioner, the City Civil Courtdismissed the said suit by judgment and decree dated 16.11.1998,against which, the appeal filed was also dismissed in A.S.No.174of 1999 by judgment and decree dated 26.9.2003.5. It is the case of the petitioner that at the instigationof the Chairman, namely Hyder Ali, the impugned order dated11.9.2007 came to be passed by the respondent-Wakf Board, whichis challenged on various grounds, including the merits of thevarious charges which are framed against the petitioner(Muthavalli). 6. Mr.S.F.Mohamed Yousuf, learned Standing Counselappearing for the respondent-Wakf Board, as per the direction ofthis Court, produced the Resolution maintained in respect of theWakf. This was due to the reason that learned counsel appearingfor the petitioner has raised an objection about the validity ofthe impugned order passed by the Wakf Board on the basis thatthe required number of members of the Wakf Board have notparticipated in the meeting and have not signed in theResolution.7. On a perusal of the Resolution which was submitted bythe learned Standing Counsel appearing for the respondent-WakfBoard, I am fully satisfied that the number of persons who haveparticipated in the meeting held on 26.6.2007, when the impugneddecision was taken by the Wakf Board, was nine, who have alsosigned on the Minutes Book. The Resolution passed on 26.6.2007by the Wakf Board also deals with each and every one of thecharges and also the explanation submitted by the petitioner tothe respective charges.8. The charges framed against the petitioner are that thepetitioner has not brought into account of the Wakf the numberof trees standing in the properties, that the petitioner has cutaway 50 Palmirah trees without prior permission of the Wakf https://hcservices.ecourts.gov.in/hcservices/ Board, that he has sold 10 trees to one Arokiaraj without thepermission of the Wakf Board and he has not brought the amountof the sale consideration into the Wakf Account, that he has notpaid the electricity charges, which resulted in disconnection ofthe electricity, that he has not put up fencing in respect ofWakf lands, and that the petitioner has not rendered theaccounts for the income of the Wakf from 1996-1997 to 2003-2004, apart from not paying the contribution payable to the WakfBoard.9. It is seen that in the explanation submitted by thepetitioner to the Wakf Board on 17.1.2007, he has in categoricterms stated that the Palmirah trees have become very old andthere was no yield, and therefore, he has cut away 50 trees atthe rate of Rs.500/- each and obtained Rs.10,000/- as advanceamount and his explanation for not obtaining permission from theWakf Board was that he had no time to get such a permissionbefore the agreement entered into for the purpose of cutting andselling of the said Palmirah trees.10. The Wakf Board has taken the said explanation intoconsideration, which clearly admits the charges levelled againstthe petitioner and passed the impugned order. There is aspecific condition while the petitioner was appointed as aMuthavalli that the petitioner should render true and properaccount, apart from the payment of various amounts to the WakfBoard. Apart from this, it is also considering the fact thatfrom 1996-1997 till 2006-2007, the petitioner has not submittedthe accounts to the Wakf Baord, the impugned order came to bepassed.11. Mr.M.Liagat Ali, learned counsel appearing for thepetitioner would submit that even though it is true that theWakf Board has considered on merits all the charges, it isactually an ex-parte order, since the petitioner was not givenan opportunity to participate in the enquiry. He would pleadthat the property is the property of the family of thepetitioner and his forefathers have created the Durgah as such,and therefore, if sufficient opportunity is given, thepetitioner will be able to defend himself in a proper manner andtherefore, according to him, this ex-parte order cannot be putagainst the petitioner for the purpose of coming to a conclusionagainst him, which is grave in nature. https://hcservices.ecourts.gov.in/hcservices/

12. On the other hand, a reference to the impugned ordershows that the Wakf Board has taken various steps and gavenotice on various dates to the petitioner to appear for theenquiry. It is seen that the notices were given to thepetitioner for the enquiry held on 12.10.2004, 20.4.2005,27.5.2005, 7.12.2005, 30.01.2006 and 5.4.2006 and for all thesehearings, even after receiving the notice, the petitioner hasnot chosen to appear for the enquiry. It was ultimately, theenquiry was posted to 26.6.2007, stating that the petitionershould appear on that date for enquiry. Even on that date, thepetitioner has not chosen to appear.13. In view of the above said factual position, which isnot in dispute, I do not think that there is any substance inthe contention of the petitioner that the petitioner was notgiven adequate opportunity. The concept of natural justicerequires that opportunity be given to a party and if a partyfails to utilise the opportunity, he cannot find refuge underthe concept of natural justice. 14. However, it is seen that the petitioner has in factgiven explanation to the charges and in the explanation,atleast, in respect of one charge, he has admitted that he hasnot obtained prior permission from the Wakf Board, which is nodoubt the condition with which the petitioner was appointed as aMuthavalli. 15. It is submitted by the learned counsel appearing forthe respondent-Wakf Board that as against the impugned order,the petitioner has always got a right of appeal under theprovisions of the Wakf Act, 1995 and the Rules framed under thesaid Act. 16. When a remedy of appeal is available, it is not as ifthe petitioner is left in lurch and he cannot be expected torush to this Court under Article 226 of the Constitution ofIndia. 17. In view of the above said facts, I am of the consideredview that there is absolutely nothing to interfere in this case.The petitioner is not entitled for any remedy. 18. The Writ Petition fails and the same is disposed of,making it clear that it is open for the petitioner to avail theappellate remedy under the provisions of the Wakf Act, 1995 andthe Rules framed thereunder, and as and when such appeal isfiled by the petitioner, within a period of 15 days from the https://hcservices.ecourts.gov.in/hcservices/ date of receipt of a copy of this order, the appellate authorityunder the Wakf Act, 1995 and the Rules framed thereunder, shalltake the appeal on file, and decide the same on merits, and inaccordance with law. It is open for the petitioner to raise allthe defences available to him. No costs. The MiscellaneousPetition is closed.CsSd/Asst.Registrar/true copy/Sub Asst.RegistrarCopy toThe Chief Executive Officer,The Tamil Nadu Wakf Board,No.3, Santhome High Road,Chennai-4.•1 cc to Mr. M. Liagat Ali, Advocate SR No. 68303KS(CO)•SR/28.11.2007W.P.No.32054 of 2007