IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 09.08.2011 CORAM:- THE HON'BLE MR. JUSTICE T.RAJA W.P. NOS.15177 & 21750 OF 2010 AND M.P. NOS.1, 2 & 3 OF 2010 AND C.R.P. (NPD) NO.3713 OF 2010 AND MP.NOS.1 & 2 OF 2010 WP Nos.15177 & 21750/10:- Haji B.Pakkir Mohammed, President, Madrasha-E-Merajul-Uloom @ Islamia Kalvi Sangham, 77/21, Mohammed Ali Club Road, Dharmapuri-636 702. ... Petitioner in both WPs. vs. The Secretary to Government, Department of Backward, Most Backward Classes and Minority Welfare, Govt. of Tamil Nadu, Fort St. George, Chennai 600 009. The Tamil Nadu Wakf Board, rep. By its Chairman, 1, Jaffar Sarang Street, Mannady, Chennai 600 001. The Chief Executive Officer, Tamil Nadu Wakf Board, 1, Jaffar Sarang St., Mannady, Chennai-600 001. The Superintendent of Wakfs/Executive Officer, Tamil Nadu Wakf Board, Salem. ... R1 to R4 in both the Wps. Moulana Mohammed Ali Munnetra Sangam Wakf, rep. By its Advisory Committee Member I.S.Nias. ... impleaded as R5 in WP15177/2010. CRP NPD. No.3713 of 2010:- Madrase-e-Mazahiral-ul-Uloom @ Islamia Kalvi Sangam Society, rep. By its Secretary D.S. Khalander, 77/21, Mohammed Ali Club Road, Dharmapuri-636 702. ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ vs. 1. I.Basheer Ahamed 2. S.Niyaz Ahamed 3. S.A.Shafi Ahamed 4. D.M.Syed Ameer 5. K.A.Salamath 6. Haji B.Ibrahim 7. B.Abdul Sathar 8. D.S.Iqbal 9. D.A.Dowlath Basha 10. The Chief Executive Officer, Tamil Nadu Wakf Board, at present having office at 1, Jaffar Sarang St., Mannady, Chennai-600 001. 11. The Registrar of Societies, Registrar Office, Dharmapuri. ... Respondents WP No.15177 of 2010:- Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records of the second respondent – proceedings dated 29.04.2010 bearing Na.Ka. No.3598/85/A 6/Dharmapuri (S.No.12, Resolution No.80/10) as illegal, arbitrary and violative of the principles of natural justice and consequential proceedings dated 03.06.2010 of the third respondent bearing No. Nil and to quash the same and to forbear the respondents from interfering with the administration of the petitioner-society in any manner, except in accordance with law. WP No.21750 of 2010:- Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records of the 2nd respondent vide proceedings bearing Resolution S. No.121/10 vide Na.Ka.No.3598/85/B6/Dharmapuri dated 06.07.2010 (communicated vide ref.Rc.No.3598/B6/85/DPI dated 19.07.2010) of the third respondent in pursuant to order of Tamil Nadu Wakf Board bearing R.C. No.3598/85/B2/Dhar/85/dated 22.09.1992 and to quash the same as illegal, arbitrary and violative of the principles of natural justice with a direction, forbearing the respondents from interfering with the administration of the Sangam in any manner, except in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ CRP NPD No. 3713 of 2010:- Petition under Article 227 of the Constitution of India seeking to set aside the Decree and Judgment, dated 23.3.2010, made in W.O.S. No.90 of 2006 on the file of the Principal Subordinate Court, Krishnagiri. For petitioners in the WPs/CRP : Mr. Haja Nazirudeen for Mr.A.Prabhakaran For R2 to R4 in both W.Ps. : Mr.Haja Mohideen Gisthi For R1 in both Wps & R11 in the CRP : Mr.S.V.Duraisolaimalai, Additional Govt. Pleader. For R5 in WP.15177/10 : Mr.T.Velumani For R10 in the CRP : Mr.V.Lakshmi Narayanan For R2, R3 and R5 to R9 in the CRP : Mr.R.Sankarappan. COMMON ORDER The writ petitioner-Haji B.Pakkir Mohammed, who is the president of Madrasa-E-Merjul-Uloom @ Islamia Kalvi Sangam at Dharmapuri (hereinafter referred to as 'Sangam'), has filed W.P. No.21750 of 2010, questioning the Resolution, dated 06.07.2010, of the Chairman of the Wakf Board, (communicated to the petitioner on 19.07.2010), whereby, the Application, dated 31.05.2005, submitted by the petitioner-Sangam, with the claim that the petitioner/sangam is not a wakf, came to be rejected, based on the earlier order/Scheme framed by the Special Officer of the Tamil Nadu Wakf Board bearing R.C. No.3598/85/B2/Dhar/85, dated 22.09.1992, thereby, the Islamia Kalvi sangam was amalgamated along with (a) Mohamed Ali Memorial Club, (b) Madrasa Mehrajul Uloom, and (c) Masjid-e-Bilal as one Single Wakf, called “Moulana Mohamed Ali Munnetra Sangam”. Hence, both the proceedings, dated 06.07.2010 and 22.02.1992, are sought to be quashed. In W.P. No.15177 of 2010, the very same petitioner challenges the proceedings of the Wakf Board, dated 29.04.2010, bearing Na.Ka. No.3598/85 A6/Dharmapuri (S. No.12, Resolution No.80/10) and the consequential proceedings, dated 03.06.2010, of the Chief Executive Officer, TN Wakf Board, in and by which the Board assumed direct Management of the Sangam as well as the other three wakfs in terms of what is provided under Section 65 of the Wakf Act, 1995, by https://hcservices.ecourts.gov.in/hcservices/ appointing the Superintendent of Salem Wakf as the Administrative Officer and calling upon the erstwhile Managements including the petitioner-Sangam to render the accounts, etc. One Mr.D.S.Khalandar, Secretary of the Sangam/Society, has filed CRP (NPD) No.3713 of 2010, seeking to set aside the judgment and decree, dated 23.03.2010, passed by the learned Principal Subordinate Judge, Krishnagiri, in W.O.S. No.90 of 2006, whereby, the plaintiff-Sangam's prayer to exclude it from the purview of wakf and to grant injunction, restraining the Wakf Board from interfering with the Management of the Sangam, was negatived. 2. Since the above two Writ Petitions and the Civil Revision Petition are interconnected and the issues arising therein need a common consideration, the cases are heard together and finally, disposed of by this Common Order. 3. Certain crucial facts necessary to understand the nature of issues arising in the cases are briefly detailed below, for better appreciation:- Mohammed Ali Memorial Club Wakf, Dharmapuri, a Surveyed and Notified Wakf vide Gazette Sl. No.41 of Dharmapuri, was initially managed by a Committee headed by one Janab D.S.Naseer Ahamed. The land belonging to the said Wakf was leased out to the petitioner- Sangam, a Society registered under the Societies Registration Act. On the leased land, the Society constructed shops and buildings and, there is also an Arabic College called Madrasa-e-Mehrajul Uloom under the management of the Society. It is the case of the Sangam-Society that it was established with four objects viz., to impart religious education, found Madrasas, help the needy to pursue studies in Medicine and Engineering and to take part in cultural activities and, in order to achieve those objectives, the Society has been raising funds through subscription from its members, donation from philanthropists, rental income from the leasehold properties etc. It is the further case of the Sangam that the Society has a General Body, Executive Committee and Office Bearers and it is periodically submitting the Returns with the Registrar of the Co-operative Societies. While so, on 16.03.1992, the Government of Tamil Nadu issued a Gazette Notification in G.O. No.163, stating that the State Government had taken a policy decision to take over the management of the Tamil Nadu Wakf Board, and consequently, appointed a Special Officer for a period of one year and the said Special Officer went exhaustively examining the acts done by the previous Managements. In the matter of the Wakf in question, the Special Officer, after receiving representations from the Society, conducted a detailed enquiry and, after hearing the parties including the Office Bearers of the Society, ultimately passed the proceedings, dated 22.09.1992, https://hcservices.ecourts.gov.in/hcservices/ in RC.No.3598/B2/Dhar/85, amalgamating Mohammed Ali Memorial Club and Masjid-e-Bilal as well as the Madrasa run by the Society viz., Merjaul Uloom, and the Islamia Kalvi Sangam which is also run by the Society, together as one Single Wakf called 'Moulana Mohammed Ali Munnetra Sangam' and accordingly, framed a Scheme and directed the said amalgamated Wakf to be registered with the Tamil Nadu Wakf Board. In accordance with the same, the Board constituted a General Body and selected a Committee headed by Janab J.Basheer Ahamed and approved the same. Questioning the Scheme, dated 22.02.1992, a writ petition in W.P. No.19202 of 1992 was filed by one S.P.Bava and another, and the said petition was dismissed by this Court on 11.02.2000 for want of prosecution. One of the interested persons by name A.Mohammad Arab also filed a writ petition in W.P. No.17457 of 1992, challenging the Scheme framed by the Special Officer and, this Court, by order dated 23.11.2000, declined to interfere with the scheme, however, permitted the petitioner to institute a suit before the Tribunal and agitate his right in the manner known to law as provided under Section 32(3) of the Wakf Act, 1995. The petitioner-Sangam filed a suit in O.S. No.6 of 2005 before the Wakf Board Tribunal (Sub Court), Krishnagiri, seeking to declare the Scheme as null and void and the said suit was dismissed for default. The Interlocutory Application filed to restore the suit was also returned for want of court fee in the Plaint. When such return was challenged before this Court by way of CRP (PD) No.394 of 2005, by order dated 29.08.2006, the plea was negatived holding that the proper remedy open for the Sangam is to re-present the application after complying with the defects pointed out in the application. On 31.05.2005, the petitioner made a representation to the Wakf Board, seeking clarification and to conduct an enquiry under Sec.40 and 70 of the Wakf Act. As the representation yielded no outcome, a writ petition was filed in W.P. No.19959 of 2005, wherein, by order dated 20.06.2005, this Court issued a direction to the Wakf Board to dispose of the representation within 12 weeks. On 06.04.2006, based on the Scheme, dated 22.09.1992, the Wakf Board passed a Resolution to appoint a 9 Member Committee for the administration of the amalgamated wakf for a period of three years. Challenging the same, the Sangam filed W.P. No.18240 of 2006 and, on 17.06.2006, obtained an order of interim injunction in the Miscellaneous petition filed viz., M.P. No.1 of 2006 in W.P.18240 of 2006. On 15.02.2010, the main Writ Petition came to be dismissed as infructuous as the tenure of the committee was over by efflux of time. Another suit filed on behalf of the Society by one Sardar in W.O.S. No.102 of 2005 on the file of the Principal Sub Judge, Krishnagiri, questioning the Scheme was dismissed on 23.03.2010. By representation, dated 29.04.2010, the petitioner addressed the Tamil Nadu Wakf Board, seeking necessary action on the earlier representation dated 31.05.2005. https://hcservices.ecourts.gov.in/hcservices/ By proceedings of the Board, dated 06.07.2010, the representation/application, dated 31.05.2005, of the Sangam/Society, seeking the Board to treat the Sangam and its properties as a separate entity totally different from the amalgamated wakf was considered in terms of the orders, dated 20.06.2005, passed in W.P. No.19959 of 2005, and ultimately rejected, leading to filing of W.P. No.21750 of 2010, questioning not only the proceedings dated 06.07.2010 but also the Scheme of the year 1992 said to have been framed on consent by all the parties including the Sangam. The proceedings of the Chief Executive Officer of the Board dated 03.06.2010 with the annexure proceedings, dated 29.04.2010, informing appointment of an Administrative Officer and seeking rendition of accounts from the Sangam before the said Officer, are challenged in W.P. No.15177 of 2000. The Society also filed W.O.S. No.90 of 2006 before the Principal Subordinate Court, Krishnagiri, against the amalgamation and such suit having been dismissed on 23.03.2010, challenging the same, CRP (NPD) No.3713 of 2010 came to be filed by the Secretary of the Society. 4. Mr.Haja Naziruddin, learned counsel appearing for the Society in all the cases, in an arduous attempt to establish the case and cause of the Society, at the first instance, would artfully submit that the Society, being a different and separate entity falling under the Societies Registration Act, its properties cannot be brought within the ambit of 'Wakf' much less the Amalgamated Wakf- Moulana Muhammad Ali Munnetra Sangam for the simple reason that a Wakf is exclusively dedicated to Allah, the Almighty, forever and such characteristic can never be fitted to a Society or the properties connected thereto. Slyly, he endeavoured to make out a point that, at best, the Madrasa or Masjid, which is constructed and in existence for prayers and religious purposes, can alone be brought within the realm of wakf and not the Society itself and its other properties shown to be connected with the Wakf. Referring to Section 3(r) of the Wakf Act, he would argue that inasmuch as none of the ingredients in the said provision is established to be present in the case of the Society, it should be held that the Wakf Board can never have any supervisory power or control over the affairs or properties of the society. According to him, tenancy in respect of land substantiates the privity of land and tenant relationship between the Mohamed Ali Memorial Club Wakf and the petitioner society respectively. Therefore, when the private Society has nothing to do with the Wakf, the whole scheme, dated 22.09.1992, derived by the Special Officer, vainly stretching its brinks to envelope the Society, on the face of it, is not legally sustainable. Further, it is apparent that the mandatory procedure outlined in Sections 4, 5, 6 and 27 of the Act has not been scrupulously adhered to, which aspect also, goes to the root of the matter. In other words, unless and otherwise, as provided either by Old Wakf Act of the year 1954 or the New Act, 1995, survey & Notification under Sections-4, 5 & 6 are https://hcservices.ecourts.gov.in/hcservices/ made, which course is mandatory, cause of action in filing a suit against such notification arose under section 6 of the Act within one year from the date of publication of the list of wakf under Section 5 (2) of the Act. In the present case, after framing of the scheme by the Special Officer, there was no registration at all; therefore, the petitioner-society can never be termed as a 'wakf' within the definition as given in Section 3(r) of the Wakf Act, 1955. 4-A. Referring to a case law reported in 1979 (2) SCC 468 (Board Of Muslim Wakfs, Rajasthan vs Radha Kishan), he submits that the Commissioner of Wakf is empowered to make a survey of existing Wakf and its properties and report to Government, whereupon, the state Government will publish the same in Gazette; whereas, in the present case, till date, such exercise was not taken up and the clubbed wakf was never notified even after the amalgamation. 4-B. Assailing the Scheme, dated 22.09.1992, the learned counsel, by stating that the petitioner is still entitled to challenge the original scheme itself, would comment that the same Scheme, after brought on record, was never acted upon. He relied upon a Judgment of the Apex Court in 2001 (8) SCC 528 (T.N. Wakf Board v. Hathija Ammal) wherein it has been held that whenever dispute arose whether the property is wakf property or not, the Board must follow the procedure as required under Sec.4, 5, 6 and 27 of the Act and straight away, the Board cannot institute a suit for declaration, asserting title over the property. Since the petitioner is a society duly registered under the Societies Registration Act and governed by its own by-laws, in terms of section 20 of the TN Societies Registration Act, legal proceedings by or against the petitioner- society is maintainable. Mohamed Ali Memorial Club was surveyed and it is a notified wakf in terms of Section 4, 5 and 6 of the Act and, in the land leased out by the Club to the petitioner-society, buildings were constructed to run the office to fulfill the objects for which the Society was registered. Inasmuch as the Society is holding the leasehold interest in land on payment of monthly rent, at any rate, the rights could be determined only in the manner as contemplated under Section 111 of the Transfer of Property Act. Since admittedly, the petitioner is not a wakf, dedicated permanently in the name of Allah, the Almighty, indisputably, none of the elements outlined in Section 3(r) of the Act, 1995, for constitution of a Wakf is present in the petitioner/society. Therefore, it is again reiterated that the Scheme itself in creating an amalgamated wakf by pointlessly including the petitioner-society as one of the wakfs is not legally sustainable and therefore, all the consequential proceedings that are under challenge in the writ petitions are liable to be quashed. 4-C. Coming to the Civil Revision Petition, wherein the order, dated 23.03.2010, passed by the Principal Sub Court in WOS No.90 of 2006, in and by which, the petitioner's prayer for https://hcservices.ecourts.gov.in/hcservices/ declaration and interim injunction came to be rejected, it is submitted that the said order is liable to be interfered with on the sole ground that the trial court has miserably failed to understand the distinction between a Society registered under the Societies Registration Act and a Wakf governed by the Wakf Act. 5. Per contra, Mr.Haja Mohideen Gisthi, learned counsel appearing for the respondents/Wakf Board in both the writ petitions, would submit that the writ petitions are liable to be dismissed at the threshold for the simple reasons that, as against the assumption of direct Management by the Wakf Board, the petitioner, by way of Appeal under Section 65(2) of the Wakf Act, 1995, has already approached the State Government on 09.07.2010; therefore, the hastiness with which the petitioner has approached this Court should be condemned severely and, even otherwise, the issues revolving around the Scheme, now sought to be raised before this Court, had already been decided not only in the civil proceedings with categorical findings both on factual and legal aspects but also in the earlier Writ Petition in W.P. No.17457 of 1992, wherein, by order dated 23.11.2000, this Court had declined to interfere with the Scheme itself, and therefore, any endeavour by this Court to consider the case of the petitioner would only amount to re-opening of the issue of amalgamation which was already settled in the respective earlier proceedings to which the petitioner was also a party. 6. In line with the above submission, Mr.V.Lakshmi Narayanan, learned counsel appearing for the Wakf Board/R10 in the Civil Revision Petition, would submit that the petitioner has no locus standi to seek for a declaration in their favour in the light of the clear fact that the Scheme was not a one passed behind the back of the petitioner Sangam. He took me to the Scheme to highlight that it was only after the consent of both sides including the Society, the Scheme was framed to amalgamate the two wings of the petitioner- society viz., Madrasa-e-Mehrajul Uloom and Islamia Kalvi Sangam along with Mohammed Ali Memorial Club and Masjid-e-Bilal, as a single wakf called 'Moulana Muhammad Ali Munnetra Sangam”. When the consent expressed by the petitioner-society for implementation of the scheme is borne out by records and also apparent from the very Scheme itself, hardly one can contend that the Scheme will not bind the society. He points out that the Writ Petition filed in WP No.19202 of 1992 by one Bawa, questioning the Scheme, came to be dismissed for non-prosecution. In the subsequent writ petition filed by one A.Moahmmed Arab in W.P. No.17457 of 1992, the plea to interfere with the Scheme came to be negatived by order dated 23.11.2000, however, in the light of Section 32(3) of the Act, 1955 which provides that where the Board has settled any scheme of management under clause (d) or given any direction under clause (3) of Sub-section (2), any person interested in the wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon https://hcservices.ecourts.gov.in/hcservices/ shall be final, liberty was granted to the petitioner to institute a suit before the Tribunal and agitate his right in a manner known to law. But, the petitioner did not immediately act upon the liberty granted by this Court on 23.11.2000 to approach the Wakf Tribunal under Section 32(3) of the Act. The suit filed in O.S. No.6 of 2005 was dismissed and the restoration application was also returned for want of court fee in the plaint. The said return challenged by way of CRP PD No.394 of 2005 also came to be dismissed. Another suit filed by one Sardar, challenging the Scheme, in WOS No.102 of 2005 on the file of Principal Sub Court, Krishnagiri, also ended in dismissal by Judgment dated 23.03.2010 on clear and sound reasonings. The order, dated 23.03.2010, passed in WOS No.90 of 2006, challenged by the Sangam in the Civil Revision Petition, is also based on clear- cut findings on both factual and legal aspects which do not call for any interference. Hence, the prayer of the Sangam does not deserve any consideration at all. 7. Heard Mr.S.V.Duraisolaimalai, learned Additional Government Pleader appearing for the official respondents, and Mr.T.Velumani and Mr.R.Sankarappan, learned counsels appearing for the rest of the respondents. 8. This Court carefully considered the rival submissions advanced on either side. The crucial issues required to be dealt with are, a) whether the petitioner-Sangam is justified in challenging the Scheme, dated 22.09.1992, which came into existence only subsequent to the consent, also given by the members of the petitioner-Sangam itself and their Counsel before the Special Officer of the Wakf Board, and the consequential proceedings arising there-from? b) when the validity of the Scheme itself has been decided in favour of the Wakf Board in a couple of litigations before the Civil Court and a definite finding on facts and legal aspects having been given, upholding the validity of the scheme; and in W.P. No.17457 of 1997 also, while deciding the validity of the scheme, this Court declined to accept the plea of the sangam, whether the principles of res judicata operate against the petitioner so as to reject their case in the present Writ Petitions? c) whether the writ petitions are maintainable having regard to pendency of the statutory appeal filed by the Society before the Government for a decision on similar issue? d) Even otherwise, whether the sangam can legally withhold and retain the administration of the properties which are part and parcel of a Wakf, dedicated exclusively https://hcservices.ecourts.gov.in/hcservices/ and perpetually for the sake of Allah, the Almighty, on the wispy ground that once the wakf property given under lease is used for a particular purpose by a Society registered under the Societies registration Act, such property would lose its original character and would forever remain with the lessee/society? e) Whether the general law viz., Societies Registration Act, will over-ride the special legislation- Wakf Act in the matters relating to administration, supervision and management of wakf properties. 9. At the first instance, it is useful to refer to Section 3 (r) of the Wakf Act, 1955, defining the term “wakf” thus:- " wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes- (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) " grants", including mashrut- ul- khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) a wakf- alal- aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and" wakf" means any Person making such dedication; A mere reading of the above provision makes it clear that the dedication of the movable or immovable property made by a Muslim for a religious, pious or charitable purpose should be permanent and perpetual in character. As regards maintenance of wakfs, duty is obligated on the Wakf Board, particularly in terms of Section 32 to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the object and for the purpose for which such wakfs were created or intended. 10. In regard to the above issues, it would be of much relevance to look at the background in which the scheme came to be framed. The Government of