High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.12.2007 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.24473 of 2007Moinudeen Sheriff .. Petitioner vs. 1. Mr.Mukram Sheriff 2. Mr.Moazam Sheriff 3. Mr.Munavar Sheriff 4. Mr.Murthaza Sheriff 5. Mr.Mustafa Sheriff 6. The Tamil nadu Wakf Board rep. by its Chief Executive Officer 4/7, 9th Cross Street, Indira Nagar, Adayar Chennai-207. The State of Tamil Nadu rep. by its Secretary to Government Environment and Sports Department Secretariat, Fort St. George Chennai-98. The State of Tamil nadu rep. by its Secretary to Government Backward Classes, Most Backward Classes and Minorities Welfare Department Secretariat, Fort St. George Chennai-9.. RespondentsThis writ petition is filed under Article 226 of theConstitution of India praying for the issuance of a Writ ofCertiorarified Mandamus to call for the records comprised inRc.No.15832/C2/CHE/04, dated 22.6.2007 on the file of the sixthrespondent and quash the same and consequently, to forbear therespondents herein from in any manner interfering with theadministration of the Moti Baba Dargah situated at No.422, PantheonRoad, Egmore, Chennai-8 by the petitioner herein as a soleMuthavalli. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.Satish parasaranFor respondents : Mr.K.M.Vijayan Senior Advocate for R1 (La-Law) Mr.R.Achuthan for R2 and R4 Mr.Siraj & Siraj for R6 Mr.V.Manoharan Government Advocate for R7 and R8O R D E RHeard Mr.Satish parasaran, the learned counsel appearing forthe petitioner, Mr.K.M.Vijayan, the learned Senior Advocateappearing for the first respondent, Mr.R.Achuthan, the learnedcounsel appearing for the second and fourth respondents, Mr.Siraj &Siraj, the learned counsels appearing for the sixth respondent andMr.V.Manoharan, the learned Government Advocate appearing for theseventh and eighth respondents. 2. It is stated by the petitioner that a saint by name SyedGulam Dastagir, popularly known as Motibaba, was entombed in aportion of the land bearing door No.422, Pantheon Road, Egmore,Chennai, with an extent of 28 grounds of land. The said saint haddied in the year, 1959, and a Durgah has been built over his mortalremains. 3. The Durgah is comprised in the property measuring about 2grounds and having a compound wall demarcating the portion of theland wherein the petitioner is residing with his family. OneMahaboob Bee had executed a settlement deed in favour of her sonsH.A.G.Dastagir Sheriff and A.Mohamed Sheriff with respect to about28 grounds of land situated at No.422, Pantheon Road, Egmore,Chennai. The first respondent, who is the eldest son ofH.A.G.Dastagir Sheriff, is also residing in a portion of the landadjacent to the Durgah.4. It is further stated that after the demise of the saint,H.A.G.Dastagir Sheriff and A.Mohamed Sheriff had contributed fundsjointly for the construction of the Durgah and the annual Urz(Khandoori) festival was jointly conducted by both of them.However, since disputes had arisen between them with respect to theadministration of the Durgah, a Civil Suit in O.S.No.4522 of 1983,was filed by H.A.G.Dastagir Sheriff before the City Civil Court,Chennai, seeking for a decree of declaration that he is the soleMuthavalli of the Durgah and for a consequential permanentinjunction restraining A.Mohamed Sheriff from interfering with his https://hcservices.ecourts.gov.in/hcservices/ alleged exclusive management of the Durgah, including the conductof the annual Urz (Khandoori) festival. H.A.G.Dastagir Sheriff hadalso stated that he is the exclusive Sajadanassin-cum-Kalifa-cum-Muthavalli of the Durgah. As the suit was decreed in favour ofH.A.G.Dastagir Sheriff, A.Mohamed Sheriff had preferred an appealbefore the VI Additional City Civil Court, Chennai, in A.S.No.313of 1986. The appellate Court had held that the declaration grantedby the trial Court in favour of H.A.G.Dastagir Sheriff was notvalid and it was further held that A.Mohamed Sheriff is entitled tojoint Muthavalliship of the Durgah, along with H.A.G.DastagirSheriff. The said decision was challenged by H.A.G.Dastagir Sheriffbefore this Court by way of a second appeal in S.A.No.289 of 1988.In the said second appeal, this Court had confirmed the judgmentand decree of the first appellate Court holding that the Durgah wasadministered jointly by H.A.G.Dastagir Sheriff and A.MohamedSheriff. 5. It is further stated that H.A.G.Dastagir Sheriff hadpreferred a Special Leave Petition before the Supreme Court, underArticle 136 of the Constitution of India. During the pendency ofthe Special Leave Petition, H.A.G.Dastagir Sheriff had died, on4.12.1999. During the pendency of the Special Leave Petition, thelegal representatives of the H.A.G.Dastagir Sheriff were impleadedin C.A.No.977 of 1998. It was contended by the impleaded legalrepresentatives that H.A.G.Dastagir Sheriff had executed a deed ofWakf nama, on 30.5.1998, stating that his five sons will be jointMuthavallis of the Durgah and one of them will elect as theManaging Muthavalli of the Durgah. By an order, dated 19.7.2001,the Supreme Court was pleased to dismiss C.A.No.977 of 1998,affirming the judgment of this Court in S.A.No.289 of 1988.Thereafter, A.Mohamed Sheriff had expired on 22.8.2001 and thepetitioner had succeeded to the office of the joint Muthavallishipof the Durgah, along with the first respondent herein. Thus, theeldest son of the deceased joint Muthavallis succeeded to theoffice of the joint Muthavalliship of the Durgah. The sixthrespondent herein by its proceedings No.Rc.5024/86/C2/Chen, dated30.1.2002, had recognised the petitioner and the first respondentas the joint Muthavallis of the Durgah. However, the firstrespondent had excluded the petitioner from the administration ofthe Wakf with a deliberate attempt to retain himself as a soleMuthavalli of the Durgah. Thereafter, various proceedings wereinitiated before the Courts of law with regard to the dispute thatarose relating to the administration of the Durgah. While so, therespondents 2 to 4 had filed a representation before the seventhrespondent claiming that they also have a right to be recognised asa Muthavalli, along with the petitioner and the respondents 1 and 5herein. In the said representation, the respondents 2 to 4 havealleged that their rights have been recoginsed by an order of theWakf Board, dated 23.8.2001. https://hcservices.ecourts.gov.in/hcservices/

6. It has been further stated by the petitioner that theseventh respondent without verifying the records had referred thematter to the sixth respondent. On such reference being made, thesixth respondent had instituted the proceedings inRc.No.15832/C2/CHE/04, dated 22.6.2007, directing the petitioner toappear before the Board and to place all the relevant records inhis possession. 7. It is stated by the petitioner that the Board does not havethe jurisdiction or authority to institute the said proceedings, inview of the pendency of the suit in O.S.No.259 of 2004, pendingbefore the Ist Assistant City Civil Court, Chennai, whereinidentical reliefs had been sought for by the concerned persons. 8. It has also been stated that since the Government of TamilNadu does not have a separate Ministry for Wakf, it did not havethe jurisdiction to deal with the representation submitted by therespondents 2 to 4. Recognition of the respondents 2 to 4 as co-Muthavallis along with the petitioner and respondents 1 and 5 doesnot arise, as the first respondent has been removed as a jointMuthavalli and the wakf board has been a party to all the relevantproceedings. Further, the enquiry purported to be conducted by thesixth respondent would amount to nullifying the earlier orderspassed by the Board and also the order passed by this Court and theSupreme Court of India. The Wakf Board had removed the firstrespondent from being a joint Muthavalli of the Durgah by itsorder, dated 6.2.2004. The said order had been issued by the WalfBoard in view of the serious misconduct alleged against the firstrespondent. In such circumstances, the petitioner has preferred thepresent writ petition before this Court, invoking Article 226 ofthe Constitution of India. 9. The learned counsels appearing for the respondents hadrefuted the claims made on behalf of the petitioner.Mr.K.M.Vijayan, the learned Senior Advocate appearing for the firstrespondent had submitted that the sixth respondent Wakf Board hasthe powers, under Section 32 of the Wakf Act, 1995, to conduct theenquiry with regard to the issues before it pursuant to its notice,dated 22.6.2007. 10. It has been contended that the petitioner cannot challengethe notice, dated 22.6.2007, issued by the sixth respondent, as itis only a request to the petitioner to appear before the Board onthe assigned date with all the relevant records in his possessionto decide the issues before the sixth respondent Board. It ispremature for the petitioner to challenge the notice at this stage.If any order is passed based on the enquiry or even if the saidnotice, dated 22.6.2007, impugned in the present writ petition, is https://hcservices.ecourts.gov.in/hcservices/ taken to be an order, it would be open to the petitioner tochallenge the same before the Wakf Tribunal, under Section 83(2) ofthe Wakf Act, 1995. The contention of the petitioner that theissues to be decided by the Wakf Board during the enquiry hasalready been decided by the various Courts of law cannot beaccepted. In fact, the issues before the Wakf Board are relating todifferent issues which have not been decided so far. 11. Mr.Siraj & Siraj, the learned counsel appearing for thesixth respondent, had submitted that the petitioner and therespondents 1 to 5 had participated in the enquiry before the sixthrespondent Board, pursuant to the impugned notice, dated 22.6.2007.On completion of the enquiry, the sixth respondent Board had passedthe orders, on 12.12.2007. Therefore, the above writ petitionfiled by the petitioner has become infructuous. 12. The learned counsel appearing for the petitioner hadreiterated his stand that the sixth respondent Board had nojurisdiction to conduct the enquiry with regard to the issues whichhave been already settled by various Courts of law. Further, he hasalso contended that the alleged enquiry had not been conducted byfollowing the procedures established by law. Further, theprinciples of natural justice have not been adhered to during theenquiry. The enquiry has been conducted behind the back of thepetitioner, without giving him sufficient opportunity of beingheard. 13. The learned counsel appearing for the respondents hadsubmitted that the the petitioner as well as the respondents 1 to 5had participated in the enquiry conducted by the sixth respondentWakf Board and the enquiry was conducted in accordance with theprocedure established by law and by following the principles ofnatural justice. It was also submitted that it is open to thepetitioner to file an appeal before the Wakf Tribunal, invokingSection 83(2) of the Wakf Act, 1995. It was also submitted that theissues which were the subject matter of the enquiry have not beensettled earlier and therefore, it was necessary for the sixthrespondent Board to conduct the enquiry to settle the contentiousissues in the interest of all the parties concerned. 14. Based on the submissions of the the learned counselsappearing for the parties concerned and on a perusal of the recordsavailable, this Court is of the considered view that the petitionerhas not shown sufficient cause or reason to interfere with theimpugned notice of the sixth respondent, dated 22.6.2007, made inRc.No.15832/C2/CHE/04 at this stage, since it is submitted that thepetitioner and the respondents 1 to 5 had participated in theenquiry conducted by the sixth respondent Board and that the finalorders have been passed by the sixth respondent Board, on https://hcservices.ecourts.gov.in/hcservices/

12.12.2007. In such circumstances, the writ petition standsdismissed. However, it is made clear that it is open to thepetitioner to challenge the order passed by the sixth respondentBoard on 12.12.2007, if so advised, in the manner known to law. Nocosts. Consequently, connected M.P.Nos.1 and 2 of 2007 aredismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Chief Executive Officer The Tamil nadu Wakf Board 4/7, 9th Cross Street, Indira Nagar, Adayar Chennai-202. The Secretary to Government The State of Tamil Nadu Environment and Sports Department Secretariat, Fort St. George Chennai-93. The Secretary to Government Backward Classes, Most Backward Classes and Minorities Welfare Department The State of Tamil nadu Secretariat, Fort St. George Chennai-9+ 1 cc to the Government Pleader, SR No.76097+ 1 cc to M/s. Siraj & Siraj, Advocate SR No. 75823+ 1 cc to M/s. La Law Advocate SR No. 75621AKR(CO)SR/11.1.2008 Writ Petition No.24473 of 2007