1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.10.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.835 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Peer Mohammed .. Petitioner Vs. Tamil Nadu Wakf Board, No.1, Jaffer Krang Street, Vallal Seedakkadhi Nagar, Chennai – 600 001. .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 21.04.2010 passed in Civil Miscellaneous Appeal No.8 of 2009 by the Wakf Tribunal/Principal Sub Court, Tirunelveli confirming the order dated 26.08.2008 passed in ndk; vz;.40/08 eh.fh.10808/07/M18/jp.Btyp by the Tamilnadu Wakf Board/respondent herein. For Petitioner : Mr.V.Meenakshi Sundaram for Mr.M.Vallinayagam For Respondent : Mr.K.K.Senthil ORDER This Civil Revision Petition has been directed against the order passed in Civil Miscellaneous Appeal No.8 of 2009 by the Wakf Tribunal/Principal Sub Court, Tirunelveli, wherein the order passed by the respondent herein in Clause No.40/08 Na.Ka.10808/07/A18/TN dated 26.08.2008 is confirmed. 2. The revision petitioner herein has acted as mutawalli of Peer Mohammed Peer Mohideen Oliyullah Dargha Pallivasal, which situates near Gangaikondan, Tirunelveli District. The respondent, on the basis of the allegation to the effect that the revision petitioner without prior permission of the respondent has permitted to instal Airtel Tower in the Wakf property and also made construction without prior permission of the respondent. The respondent has conducted an enquiry and ultimately passed the impugned order and thereby removed the revision petitioner from mutawalliship and the respondent has taken direct management of the Wakf in question. Against the order passed by the respondent, the revision petitioner as appellant has preferred Civil Miscellaneous Appeal No.8 of 2009 on the file of the Wakf Tribunal/Principal Sub Court, Tirunelveli. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The Wakf Tribunal/Principal Sub Court, Tirunelveli after hearing both sides and upon reappraising the evidence available on record has dismissed Civil Miscellaneous Appeal No.8 of 2009 and thereby confirmed the impugned order passed by the respondent. Against the order passed in Civil Miscellaneous Appeal No.8 of 2009, the present Civil Revision Petition has been filed under Article 227 of the Constitution of India. 4. Prior to contemplate the rival submissions made on either side, the following factual aspects are very much essential for the purpose of easy reference and also for effective disposal of the present Civil Revision Petition. 5. It is an admitted fact that the revision petitioner has been appointed as mutawalli in respect of Peer Mohammed Peer Mohideen Oliyullah Dargha Pallivasal, which situates near Gangaikondan, Tirunelveli District. During his tenure, the Superintendent of the respondent has given a complaint against the revision petitioner stating that in the Wakf property, the revision petitioner has permitted Airtel to put up its tower and he also put up construction without prior permission of the respondent. On the basis of the violation alleged to have been made by the revision petitioner, the enquiry in question has been initiated in Clause No.40/08 Na.Ka.10808/07/A18/TN. After conducting enquiry, the order in question has been passed, wherein the revision petitioner has been removed from mutawalliship and the respondent has taken direct management of the wakf in question. 6. The learned counsel appearing for the revision petitioner has attacked the impugned order passed by the respondent as well as the order passed in Civil Miscellaneous Appeal No.8 of 2009 on the following grounds: (a) As per Section 64(3) of the Wakf Act, 1995, a mutawalli can be removed by a majority of not less than two-thirds of the members of the Board and in the instant case such thing has not been done and therefore removal of the revision petitioner is totally illegal. (b) The order in question has been passed on 26.08.2008 and prior to passing of the order in question, no show cause notice has been given. But a show cause notice has been given on 12.11.2008 and on that ground also, the order of removal is illegal. (c) The respondent has passed the order in question under Sections 64(3) and 65 of the Wakf Act, 1995. Prior to assume direct management, necessary notification should be issued and in this case, the same has not been done and therefore the respondent is not entitled to pass composite order for removal of the revision petitioner as well as for taking direct management and on that ground also the impugned order is totally incorrect. https://hcservices.ecourts.gov.in/hcservices/ 3 7. In order to dispel the argument urged on the side of the revision petitioner, the learned counsel appearing for the respondent has contended that in the impugned order itself it has been explicitly stated that all the members of the Board have unanimously decided to remove the revision petitioner and therefore question of lack of majority or two-third majority of members with regard to removal of the revision petitioner does not arise and further the impugned order in question has been passed on 26.02.2009 and prior to passing of the same, a show cause notice has been issued by the respondent to the revision petitioner and further there is no interdiction nor embargo in the Wakf Act, 1995 so as to pass composite order with regard to removal and also with regard to taking over management and under the said circumstances, all the contentions putforth on the side of the revision petitioner cannot be accepted and further the order in question has been passed under Sections 64 (3) and 65 of the Wakf Act, 1995 and at the most the present revision can be filed under Section 83(9) of the said Act, but the present Civil Revision Petition has been filed under Article 227 of the Constitution of India and on that ground also the same is liable to be dismissed. 8. For considering the first point urged on the side of the revision petitioner to the effect that in the impugned order it has not been specifically stated that the majority or two-third of the members of the Board have accepted removal of the revision petitioner, the Court has to look into the necessary observations passed in the impugned order by the respondent. In page 12 of the said order, it has been explicitly stated that all the members of the board have unanimously resolved to remove the revision petitioner for the alleged allegations made against him. Therefore the first contention urged on the side of the revision petitioner does not hold good. 9. The second contention urged on the side of the revision petitioner is that the impugned order has been passed on 26.08.2008 and show cause notice has been given on 12.11.2008 that is, after passing of the impugned order and therefore no valid show cause notice has been issued by the respondent. 10. In fact, this Court has perused the impugned order, wherein it has been clearly stated that on 26.08.2008, the matter has been reserved for passing orders and the impugned order has been passed on 26.02.2009. Prior to passing of the impugned order dated 26.02.2009, a show cause notice has been issued on 12.11.2008 to the revision petitioner and therefore the second ground urged on the side of the revision petitioner also goes out without merit. 11. The third ground urged on the side of the revision petitioner is that the impugned order has been passed under Sections 64(3) and 65 of the Wakf Act, 1995. The learned counsel appearing for the revision petitioner has stressed his argument to the effect that no composite orders can be passed with regard to removal and https://hcservices.ecourts.gov.in/hcservices/ 4 also with regard to taking over administration and that too without giving prior notification. 12. It is an admitted fact that Section 64(3) of the said Act deals with removal of mutawalli for the reasons stated in the preceding sub-sections and Section 65 of the said Act deals with direct management of Wakf Board itself. In Section 65 of the said Act, it has been clearly stated that where no suitable persons is available for appointment as a mutawalli of a wakf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling up of the vacancy in the office of the mutawalli is prejudicial to the interests of the wakf, the Board may, by notification in the Official Gazette, assume direct management. In fact, Section 65 of the said Act has given wide powers to the Wakf Board so as to take direct management with an avowed object of protecting Wakf properties. Under the said circumstances, the Wakf Board is having unfettered right as well as powers to take direct management. As rightly pointed out on the side of the revision petitioner, the order in question is nothing, but a composite order, which deals with removal from mutawalliship and also taking over management of the concerned Wakf by the respondent. In the Wakf Act, 1995, no explicit provision is available so as to create an embargo in the powers of the Wakf Board to take direct management in the interests of concerned Wakf. Under the said circumstances, the third contention urged on the side of the revision petitioner also goes out without merit. 13. The learned counsel appearing for the respondent has contended that the present Civil Revision Petition has been filed under Article 227 of the Constitution of India, but if any orders have been passed under the Wakf Act, 1995, the proper remedy is to file revision under Section 83(9) of the said Act. In Section 83(9) of the said Act, it is stated that no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal; provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. 14. The present Civil Revision Petition has been filed by invoking Article 227 of the Constitution of India. But the proper remedy available is only under Section 83(9) of the said Act. Since the present Civil Revision Petition has been filed under Article 227 of the Constitution of India and since explicit provision is available under Section 83(9) of the said Act, it is also very clear that the present Civil Revision Petition is not legally maintainable. 15. It has already been discussed in extenso about the grounds urged on the side of the revision petitioner and none of the grounds can be accepted. The Wakf Tribunal/Principal Sub Court, Tirunelveli https://hcservices.ecourts.gov.in/hcservices/ 5 after considering the rival contentions putforth on either side has rightly dismissed Civil Miscellaneous Appeal No.8 of 2009. In view of the foregoing enunciation of both the factual and legal premise, this Court has not found any force in the contentions urged on the side of the revision petitioner and altogether the present Civil Revision Petition deserves to be dismissed. 16. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs and the order passed in Civil Miscellaneous Appeal No.8 of 2009 by the Wakf Tribunal/Principal Sub Court, Tirunelveli is confirmed. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar To The Wakf Tribunal/ Principal Sub Judge, Tirunelveli. C.R.P(NPD)(MD)No.835 of 2011 and M.P(MD)No.1 of 2011 21.10.2011 smn NSV/9.11.11/5P/2C https://hcservices.ecourts.gov.in/hcservices/