The Executive CommitteeDadasha Makkan Trust v. The State of Tamil Nadu & Ors.

For petitioner: Mr.K.Jaganatha RaoFor respondents: Mr.V.Lakshmi Narayanan ..ORDER The writ petition is for a direction against the secondrespondent, the Tamil Nadu Wakf Board to restrict its supervisorycontrol of Dadasha Makkan Trust, Perambur Barracks, Chennai inaccordance with the terms and clauses of the scheme decree dated21.2.1910 made in O.S.No.75 of 1909 on the file of City Civil Court,Chennai in its administrative affairs.2. The writ petition is filed by the Executive Committee ofDadasha Makkan Trust by its Member on behalf of its members. Thesaid Dadasha Makkan Trust is stated to be a notified wakf bearingG.S.No.168/Mds. A Muslim Sufi Saint, by name ‘Dadasha’ was buried inthe above said Perambur Barracks Locality and revered as a Durgah. 2(a). The saint owned properties to an extent of 101 groundsand 1150 sq.ft. and after his death, the dargah and the propertiesaround the dargah became a Trust, instituted with the object toperform annual Urus of the said Sufi Saint Dadasha. It is statedthat six sons and two daughters of the said saint became thebeneficiaries of the Dadasha Makkan Trust. A scheme was framed forthe management of the properties belonging to the Trust in the suitin O.S.No.75 of 1909 by decree dated 21.2.1910. 2(b). As per the scheme decree, it is declared that theproperties belonging to the Trust are charged with the Trust for theperformance of Urus in the Dargah by spending a sum of Rs.75/- peryear and the surplus income is divisible among the beneficiariesaccording to the shares. It is also declared that the descendantsof each of the sons and daughters of Dadasha or their assigns areentitled in rotation to collect and perform the Urus for one year. 2(c). In the survey conducted by the Tamil Nadu Wakf Boardunder the Wakf Act, 1954 it was recognized that the Dadasha MakkanTrust was administered as per the scheme decree framed by the CivilCourt and the Trust was administered as such till 2002. Thepetitioner and other members of the Executive Committee and also the5th respondent are the beneficiaries of the said Trust and there are100 beneficiaries for the Trust originated from six sons and twodaughters of the saint. The direct management of the trust wastaken by the Tamil Nadu Wakf Board by resolution dated 23.10.2002 onthe ground that there was mismanagement committed by the then https://hcservices.ecourts.gov.in/hcservices/ Muthavalli Mr.Syed Gulam Mohamed and it was under the control of thesecond respondent Wakf Board till 2005. 2(d). It was on 8.12.2005, the second respondent revoked itsdirect management and appointed the 5th respondent as Muthavalli ofthe wakf as per the resolution dated 29.5.2005 for a period of threeyears from 29.5.2005. It is the case of the petitioner that the second respondent WakfBoard has no jurisdiction to control the said Trust and theappointment of 5th respondent as Muthavalli should not have beenrestricted for three years, which is against the resolution of theWakf Board dated 8.12.2005. 2(e). The 5th respondent, who was appointed as Muthavalli isstated to have constituted an Executive Committee, which wasrestricted to seven members. It is stated that the 5th respondentcalled for a meeting of beneficiaries on 13.2.2007 and on the basisof majority decision, the following seven beneficiaries wereappointed as members of the executive committee:1.Mr.Syed Fasi Mohammed 2.Mr.Syed Akhar Sakaf 3.Mr.Syed Anwar Basha 4.Mr.Ahmed Shariff 5.Mr.Syed Mustag Hussain 6.Mr.Syed Mazher Hussain 7.Mr.Syed Masood Hussain Khadari 2(f). After the appointment of members of the ExecutiveCommittee, the 5th respondent informed the same to the secondrespondent Wakf Board. It is stated that one Mrs.Habibunissa Begumholding less number of shares viz., 40/20160, made a representationto the second respondent to appoint her as Joint Muthavalli. Inaddition to that one Mr.Akthar Hussain also sent a letter to thesecond respondent to constitute an Executive Committee of sevenmembers. Based on the same, the second respondent conducted anenquiry on 29.11.2006. 2(g). According to the petitioner, without notice to themembers of the Executive Committee, the steps taken by the secondrespondent to appoint a Joint Muthavalli is without jurisdiction https://hcservices.ecourts.gov.in/hcservices/ since anyone of the applicants should have gone to the Wakf Tribunalagainst the resolution of Wakf Board dated 8.12.2005. 2(h). It is the case of the petitioner that since the 5threspondent Muthavalli refused the claim of the said Mrs.HabibunissaBegum to appoint her as Joint Muthavalli and the claim of Mr.AktharHussain to constitute an Executive Committee, allegations were madeagainst him, based on which, a show-cause notice was issued on14.12.2007 and the Wakf Board passed orders on 27.5.2008 removingthe 5th respondent from the post of Muthavalli on the charges that hedid not submit accounts for the period from 2005-2006 and he did notsubmit budget estimate for the period 2007-08 and he violatedsections 44 and 46 of the Wakf Act, 1995 and he allowed his son-in-law to put a construction in the wakf property without permissionfrom the second respondent Wakf Board. In the resolution dated 28.2.2008, the second respondent took control and management of Dadasha Makkan Trust on the basis that there are no eligible personsavailable to be appointed as Muthavalli.2(i). Against the notification by which management of the trustwas taken from the 5th respondent, a writ petition was filed inW.P.No.15178 of 2008 and the order of the Wakf Board dated 28.2.2008was kept in abeyance till 15.12.2008. In the meantime, the 5threspondent filed application before the Wakf Tribunal, Chennaiagainst the order of the second respondent dated 28.2.2008,challenging the order of taking direct management of the Trust. 2(j). It is stated that the Wakf Tribunal by order dated16.7.2008 made in O.A.Nos.7 and 8 of 2008, rejected the claim of the5th respondent Muthavalli to set aside the resolution of the WakfBoard dated 28.2.2008 and dismissed the O.As. It is stated that the5th respondent preferred revision before this Court under Article 227of the Constitution of India and the same is pending inC.R.P.Nos.2933 and 2934 of 2008. 2(k). It is the complaint of the petitioner that the secondrespondent before passing the order taking over the management hasnot given notice to the members, especially when the Wakf Board ishaving a mandatory duty under the scheme decree dated 21.2.1910 madein O.S.No.75 of 1909. As per the scheme decree the power ofappointment of Muthavalli in respect of the wakf covered by thescheme lies with the State, the first respondent herein andtherefore, the second respondent has no jurisdiction at all, as persection 66 of the Wakf Act, 1995.3. It is as against the conduct of the second respondent intaking over the management of the Trust, the petitioner has filedthe present writ petition on the basis that the second respondent https://hcservices.ecourts.gov.in/hcservices/ has no jurisdiction; that it is the Government under section 66 ofthe Wakf Act which has got the right to appoint Muthavalli; that theprovisions of section 65 of the Wakf Act have not been followed byconducting proper enquiry; that after having appointed the 5threspondent as Muthavalli, he has been abruptly and arbitrarilyremoved; that the Wakf Board is estopped from contravening theterms and clauses of its own proforma report and the impugnedresolution dated 28.2.2008 passed by the second respondent is inviolation of sections 65, 66 and 67 of the Wakf Act, 1995; that theresolution of the beneficiaries unanimously passed on 29.5.2005cannot be altered and any such alteration is in violation of thescheme decree; and that there are certain material irregularities inthe Wakf Board in passing the resolution and orders.4. The second respondent in the counter affidavit has statedthat there is no Committee as Executive Committee approved by thesecond respondent Board and therefore, the petition is notmaintainable. It is also stated that the 5th respondent appointed asMuthavalli has been removed for mismanagement and thereafter, agroup of his relatives was formed as Executive Committee and forthat, there is no legal sanction and therefore, the writ petition isnot maintainable. 4(a). It is stated that the decree passed in O.S.No.75 of 1909dated 21.2.1910 was never implemented. It is also stated that thedecree is not a scheme decree and the procedure contemplated undersection 92 of the Code of Civil Procedure has never been followed. It is stated that after the Wakf Act 1954 was notified thesupervisory and administrative power is with the Wakf Board and notbefore the Civil Court. It is stated that the writ petition itselfhas been filed at the instance of the 5th respondent, who has beenremoved from the office of Muthavalli and the petitioner is notaggrieved by the impugned orders. 4(b). It is stated that the decree states about theadministration of the Trust on one year term basis but the decreehas never been followed and the persons in administration were insuch capacity for 25 years, 36 years, etc. and the Trust is underthe control of the Tamil Nadu Wakf Board from 17.6.2008 andtherefore, the administration of the Trust has not been done as perthe decree.4(c). It is also stated that even if the removal of Muthavalliwas made and management of Trust was taken over by the Wakf Board,as per section 65 of the Wakf Act, it is only for the StateGovernment which has to pass orders and without exhausting suchremedy, the writ petition has been filed. It is stated that againstthe 5th respondent many complaints were received about hismismanagement apart from allowing his relative to put up a https://hcservices.ecourts.gov.in/hcservices/ construction in the wakf land and therefore a show-cause notice wasissued on 14.12.2007 to the 5th respondent for various violations andthe 5th respondent sent his reply on 30.12.2007, admitting that aconstruction was made in the property belonging to the Trust withoutpermission, stating that he does not know about the rules and law. 4(d). It is stated that on inspection it was found thatunauthorized construction was made by the son-in-law of the 5threspondent and the same was admitted by the 5th respondent. The 5threspondent has also filed a written argument through his counseland sufficient opportunity was given to him and hence, there is noviolation of principles of natural justice and it is based on theadmission of the 5th respondent which requires no further evidence,he was removed from the office of Muthavalli as per section 64(1)(h)of the Act. 4(e). It is also stated that the 5th respondent has never obeyedthe orders of the Chairman of the Wakf Board and after enquiry aunanimous resolution was passed by the Wakf Board on 27.5.2008,removing the 5th respondent from the office of Muthavalli. It isalso stated that the 5th respondent filed O.A.Nos.7 and 8 of 2008before the Wakf Tribunal and the same were dismissed, against whichhe preferred revision in the High Court, in which stay petition wasdismissed and having failed in his efforts, the 5th respondentinstigated the petitioner, who is forming part of an unrecognizedgroup, to file the present writ petition, which according to thesecond respondent is not maintainable.5. It is the contention of the learned counsel for thepetitioner that the second respondent, Tamil Nadu Wakf Board has toact as per the decree passed by the Civil Court, which, according tohim, is a scheme decree. He would submit that in O.A.No.8 of 2008filed by the 5th respondent before the City Civil Court-cum-WakfTribunal, the Wakf Board through its Chief Executive Officer, in thecounter affidavit, has specifically admitted that Dadasha MakkanWakf is governed under the scheme decree in O.S.No.75 of 1909. Hewould also rely upon the resolution of the Wakf Board dated29.5.2005, by which the 5th respondent was appointed as Muthavalli,in which Wakf Board has specifically admitted that the Muthavalli inrespect of the Trust is appointed as per the Court order and whenthat was the specific stand taken by the Wakf Board in theproceedings initiated by the 5th respondent, it cannot take adifferent stand now. It is his further submission that the Trust inquestion is governed as per the provisions of section 66 of the WakfAct,1995 and therefore, the second respondent Wakf Board has nopower either to take over the management or remove the Muthavalliand it is only the Government under Section 66 of the Act which isempowered. https://hcservices.ecourts.gov.in/hcservices/

6. On the other hand, it is the contention of the learnedcounsel for the second respondent, Wakf Board that the Wakf Board’scontrol over the Trust continues for a long time, since successiveMuthavallis have been recognized by the Tamil Nadu Wakf Board. Itis his submission that the decree passed in O.S.No.75 of 1909 on21.2.1910 by the City Civil Court, Madras is not a scheme decree,but it is a decree passed in a suit for declaration. He would relyupon the judgments in Syed Moinuddin v. Tamil Nadu Wakf Board,Madras and others (AIR 1998 Madras 129) and Charan Singh v. DarshanSingh [(1975) 1 SCC 298] to substantiate his contention that what isrelied upon by the petitioner is not a scheme decree. It is alsohis case that taking note of the historical events from the date ofthe said decree, it is clear that the decree has never beenfollowed. It is his submission that if the petitioner is aggrievedby any order, his remedy is to file an appeal under section 65(2) ofthe Act. He would submit that the Tribunal has found factuallyagainst the 5th respondent in respect his mismanagement and the WakfBoard has taken control of the management of the Trust till25.8.2010 and therefore, the writ petition is liable to bedismissed.7. As far as the contention that the decree passed by the CivilCourt in O.S.No.75 of 1909 dated 21.2.1910 is a scheme decree isconcerned, on a reference to the decree passed by the Civil Court,it is true that one cannot come to a conclusion that it is a schemedecree, as section 92 of the Code of Civil Procedure has not beenfollowed. In Charan Singh v. Darshan Singh [(1975) 1 SCC 298] theSupreme Court has held that a suit in the form a scheme undersection 92(1) of the Code of Civil Procedure can be filed for anyoneof the grounds enumerated therein and the relevant portion of thejudgment is as follows:"6. It is well-settled that a suit of the natureenvisaged by Section 92(1) of the Code to obtain a decreefor any one or more of the reliefs enumerated in clauses(a) to (g) of the Code has to be filed by the AdvocateGeneral or two or more persons having an interest in thetrust with the consent in writing of the Advocate-General.Sub-section (2) provides that save under certaincircumstances..... no suit claiming any of the reliefs specified insub-section (1) shall be instituted in respect of any suchtrust as is therein referred to except in conformity withthe provisions of that sub-section. https://hcservices.ecourts.gov.in/hcservices/ Out of the three conditions which are necessary to befulfilled for the application of Section 92, two areindisputably present in this case viz. (1) the suitrelates to a public charitable or religious trust; (2) itis founded on an allegation of a breach of trust and thedirection of the Court is required for administration ofthe trust. The debate and dispute between the partiescentered round the requirement of the fulfilment of thethird condition namely whether the reliefs claimed arethose which are mentioned in sub-section (1) of Section 92of the Code. A suit may be instituted under Section 92(1)to obtain a decree-(a) removing any trustee;(b) appointing a new trustee;(c) vesting any property in a trustee;(cc) directing a trustee who has been removed or aperson who has ceased to be a trustee, to deliverpossession of any trust property in his possession to theperson entitled to the possession of such property;(d) directing accounts and inquiries;(e) declaring what proportion of the trust-propertyor of the interest therein shall be allocated to anyparticular object of the trust;(f) authorising the whole or any part of the trust-property to be let, sold, mortgaged or exchanged;(g) settling a scheme; or(h) granting such further or other relief as thenature of the case may require."8. While dealing with the provisions of the Wakf Act, 1995, in thecontext of section 92 of the Code of Civil Procedure, the DivisionBench of this Court in Syed Moinuddin v. Tamil Nadu Wakf Board,Madras and others (AIR 1998 Madras 129) has held that filing of ascheme suit without filing the report of Advocate General cannot betermed as a scheme suit and the same is not binding on the WakfBoard while exercising its powers under the Wakf Act. The DivisionBench held as follows: https://hcservices.ecourts.gov.in/hcservices/ "6. Bakthavatsalam,J. came to the conclusion that thedecree in C.S.No.116 of 1909 is in effect a scheme decreeand therefore by following the judgment of Ismail,J. inPalani Muslim Dharhapari – Palas Sangam v. Wakf Board;(1975) 1 Mad LJ 201 held that the wakf board losesjurisdiction to exercise powers over the subject Durga.Before us, therefore elaborate arguments have beenadvanced by both the parties to understand the scope ofthe decree in C.S.No.116 of 1909 and to find out as towhether it is a scheme decree or not. Both the partiesproceeded on the basis that a scheme decree has to beinstituted in accordance with Section 92 of the Code ofCivil Procedure. In Subramaniam v. Yegananarayaiah,(1971) 1 Mad LJ 46, K.S.Palaniswamy,J. was trying to findout whether a particular suit would come under the scopeof Section 92 of the Code of Civil Procedure. In thatconnection, learned Judge found that if a suit is to comewithin the purport of Section 92 of the Code of CivilProcedure, there must be a trust created for a publicpurpose of a charitable or religious nature. Secondly,there must be an allegation of breach of trust,particularly, the relief claimed must relate to thereliefs mentioned in Section 92 of the Code of CivilProcedure. Once a suit answers the above description, itmust be held to be a suit falling squarely within Section92 of the Code of Civil Procedure. Therefore in thatparticular case it was held that the suit institutedwithout the sanction of the Advocate General was notmaintainable.7. To the same effect is the Judgement of the SupremeCourt in Charan Singh v. Darshan Singh, (1975) 2 SCJ 164 :(AIR 1975 SC 371). In that case, also, a suit was filedwithout following the procedure prescribed under Section92 of the Code of Civil Procedure. The Supreme Court heldthat the suit being one under Section 92 of the Code ofCivil Procedure, the same was not maintainable for notconforming to the requirements of Section 92 of the Codeof Civil Procedure. Mr.Habibullah Badsha, learned SeniorCounsel therefore contends that inasmuch as C.S.No.116 of1909 had not been filed by following the procedureprescribed in Section 92 of the Code of Civil Procedure,the same cannot be considered to be a scheme decree. Onthe other hand, the argument of Mr.O.R.Abdul Kalam,learned counsel for the contesting respondent is that aperusal of the plaint, the reliefs claimed in the suit andthe terms of the decree clearly indicate that it is a suitunder Section 92 of the Code of Civil Procedure. For thispurpose, he relied on the decisions reported in Narsidasv. Ravishankar, AIR 1931 Bombay 33 and Gajramji Jasramji https://hcservices.ecourts.gov.in/hcservices/ v. Somnath Bhudardas, AIR 1940 Bombay 242. We are of theopinion that it is unnecessary to go into the arguments ofMr.O.R.Abdul Kalam and the decisions cited by him, becauseno attempt was made to show that the decree in the suit inC.S.No.116 of 1909 was filed after complying with theprovisions of Section 92 of the Code of Civil Procedure.It is the argument of Mr.Abdul Kalam that having regard tothe terms of the decree, it must be deemed to be a suitunder Section 92 of the Code of Civil Procedure. Asagainst the argument of Mr.Habibullah Badsha that thedecree does not provide for any mode of succession inrelation to the office of mutawalli or mujawar. Mr.AbdulKalam, argues that the succession to the office is inaccordance with the Muslim Law of Succession andInheritance. Therefore, even if the decree relates onlyto the duties of the parties inter se as well as themanner of sharing the income, the same would apply tosuccessive heirs in accordance with the Mohammedan Law ofInheritance. We are of the opinion that whatever be thenature of relief and even accepting the stand of Mr.AbdulKalam, no decree can be deemed to be a decree underSection 92 of the Code of Civil Procedure, unless therequirements of Section 92 of the Code of Civil Procedurehad been followed. The first and foremost requirementunder unamended Sec.92, is that the sanction from theAdvocate General must have been obtained. As rightlypointed out by learned senior counsel for the appellants,the purpose of the sanction from the Advocate General isto prevent frivolous suits being filed in respect of thetrusts relating to religious or charitable objects.Whatever may be purpose, the Judgements cited aboveclearly indicate that unless the requirements of Section92 of the Code of Civil Procedure are strictly followed,the suit cannot be deemed to be the suit under Section 92of the Code of Civil Procedure." 9. By applying the dictum laid down by the Supreme Court aswell as the Division Bench of this Court relating to section 92 ofthe Code of Civil Procedure, certainly there is a doubt about thenature of decree passed by the Civil Court in this case as towhether it is a scheme decree or not. But, that is not the mainissue, in my view, since the Wakf Board’s jurisdiction over theTrust has not been questioned so far. In fact, it is the admittedcase that the 5th respondent himself was appointed by the secondrespondent, Tamil Nadu Wakf Board as per its resolution dated29.5.2005, based on which the 5th respondent took charge asMuthavalli. The petitioner, who, on the face of the pleadings isespousing the cause of the 5th respondent, cannot deny that the 5threspondent was appointed as Muthavalli only by the 2nd respondent, https://hcservices.ecourts.gov.in/hcservices/ the Wakf Board. A reference to the decree passed by the Civil Courtshows that certainly it does not contain any clause to the effectthat any other authority or Court other than the Wakf Board shouldmake appointment or removal of Muthavalli, so as to enable the StateGovernment to exercise its powers. 10. Section 66 of the Wakf Act, 1995 which is as follows:"Section 66. Powers of appointment and removal ofmutawalli when to be exercised by the State Government.-Whenever a deed of wakf or any decree or order of a Courtor any scheme of management of any wakf provides that aCourt or any authority other tan a Board may appoint orremove a mutawalli or settle or modify such scheme ofmanagement or otherwise exercise superintendence over thewakf, then notwithstanding anything contained in such deedof wakf, decree, order or scheme, such powers aforesaidshall be exercisable by the State Government:Provided that where a Board has been established, theState Government shall consult the Board before exercisingsuch powers."The above said section gives power to the State Government toexercise the power of removal or appointment of Muthavalli in caseswhere a decree of a Court or a scheme enables the Court or any otherauthority other than the Wakf Board. On the facts of the presentcase, there is nothing to show that the decree of the Civil Courtenables the Court or any other authority other than the Wakf Boardto appoint or remove Muthavalli and in such circumstances, the powerof the Wakf Board has not been taken away under section 66 of theWakf Act. Therefore, it cannot be said that there is no power ofsuperintendence by the Tamil Nadu Wakf Board against the Trust.11. It is further relevant to note that the 5th respondenthimself after he was removed by the Tamil Nadu Wakf Board,approached the Wakf Tribunal by filing O.A.Nos.7 and 8 of 2008 witha specific plea that the Tamil Nadu Wakf Board was appointed himunder the resolution dated 29.5.2005 for a period of three years andhe was entitled to the post till 7.12.2008 and therefore, the show-cause notice issued on 14.12.2007 is against the provisions ofsection 64 of the Wakf Act. The Wakf Tribunal, after finding thatthe Wakf Board has given reasons for the removal of 5th respondent,by relying upon section 65 of the Wakf Act, held that the Wakf Boardhas jurisdiction to take control of the Trust and ultimatelydismissed the O.As. filed by the 5th respondent, by judgment dated16.7.2008. Even the petitioner Executive Committee in itsrepresentation addressed to the second respondent dated 9.12.2008,has not questioned the authority of the Wakf Board, but only pleaded https://hcservices.ecourts.gov.in/hcservices/ that the Committee was not involved in any mismanagement ormisappropriation. Therefore, the stand now taken by the petitioneras if the Wakf Act is not applicable and the Wakf Board has nojurisdiction is not only a contradiction to the earlier stand takenby the petitioner, but also totally untenable. 12. In fact, it is the stand of the second respondent, WakfBoard that the management of the Trust has not been taken overpermanently and it was because of the mismanagement, the Wakf Boardhas taken the management and steps would be taken for vesting themanagement of the Trust with some other persons as per the decreepassed by the Civil Court, however, retaining the power ofappointing Muthavalli with the Wakf Board. 13. It is brought to the notice of this Court that the WakfBoard in its resolution dated 26.08.2009 has extended the period ofcontrol over the Trust from 26.08.2009 to 25.08.2010 and it is nota permanent taking over of the Trust by the Board. In suchcircumstances, I am of the considered view that the 5th respondent,having been removed from the post of Muthavalli and having failed inhis efforts before the Wakf Tribunal, has chosen to ventilate hisgrievance through the writ petitioner, which is obvious on thereading of the pleadings and therefore, the petitioner is notentitled to claim any relief in the writ petition. The writpetition is therefore dismissed. No costs.khSd/- Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Secretary State of TamilNadu Department of Wakfs Secretariat, Fort St.George Chennai 600 009.2.The Chief Executive Officer Tamil Nadu Wakf Board Office of the Tamil Nadu Wakf Board No.1 Jafar Serang Street (Behind Customs House) Chennai 600 001. https://hcservices.ecourts.gov.in/hcservices/

3.The Chief Executive Officer Office of the Tamil Nadu Wakf Board No.1 Jafar Serang Street (Behind Customs House) Chennai 600 001.4.The Wakf Inspector No.17,Venkatesa Nayaken Street Chepauk, Chennai 600 005.+ 1 cc to M/s.V.Raghavachari, Advocate SR No.59526RK(CO)SR/13.11.2009Order in W.P.No.28975 of 2008