IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.6.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.1134 of 2011 Mohamed Mujeebur Rahman .. Petitioner Vs. 1. The State of Tamil Nadu rep. by its Secretary Backward and Most Backward Classes Department Secretariat, Fort St. George Chennai – 600 009. 2. The Tamil Nadu Wakf Board rep. by its Chief Executive Officer Office of the Tamil Nadu Wakf Board No.1, Jaffar Serang Street Chennai – 600 001. 3. Dr.Hissamuddin Papa 4. Khadeer Ahmed Syed 5. Ameer Bin Obeid 6. Kauser Hussain Papa 7. E.Niyamathullah 8. K.Hassan Ali 9. E.Kalifathullah Sahib 10.Mohamed Fayaz Ali 11.K.H.M.Afzal 12.R.Md. Imran 13.S.Jahangir 14.Mohamed Nayeemur Rahman 15.L.Yusuff Ali 16.Mooza 17.K.Mohamood Hussain 18.G.K.Basha .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the second respondent to restrict its supervisory control over the "Nawab Fazilathunnissa Begum Sahiba Mosque Endowment Chennai" in accordance with the terms and clauses of the scheme decree dated 10.2.1941 made in O.S.No.63 of 1940 on the file of the Principal Judge, City Civil Court, Chennai in all its administrative affairs. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.M.N.S.Mohamed Habeeb Raja For Respondents: Mr.K.Balasubramanian Special Government Pleader for 1st respondent Mr.V.Raghavachari for 2nd respondent Mr.K.V.Sundarajan for respondents 3 to 6 Mr.M.L.Denis for respondents 7 to 9 Mr.P.Satish for 11th respondent Mr.T.Rajasekaran for 14th respondent Mr.N.Selvaraju for 16th respondent Mr.M.K.Hidayathullah for 17th respondent ORDER The writ petition is for a direction against the second respondent, viz., Tamil Nadu Wakf Board, to restrict its supervisory control over the "Nawab Fazilathunnissa Begum Sahiba Mosque Endowment Chennai" only in accordance with the terms and clauses of the scheme decree dated 10.2.1941 made in O.S.No.63 of 1940 on the file of the Principal Judge, City Civil Court, Chennai. 2.1. The Fazilathunnissa Begum Sahiba Mosque Endowment (for brevity, "the Mosque Endowment") is situated in Anna Salai, Nandanam and was dedicated by its ancestor – Nawab Fazilathunnissa Begum Sahiba through a Will dated 30.1.1877 and a Codicil dated 2.2.1877. It is stated that the Sub Court, Chengalpattu has framed a scheme for the administration of the Mosque Endowment in the judgment and decree dated 10.2.1941 in O.S.No.63 of 1940 and according to the petitioner, since then the Mosque Endowment has been administered as per the terms of the scheme decree made in the above suit. 2.2. As per the scheme decree, seven trustees should be appointed for the management of the Mosque Endowment and out of the https://hcservices.ecourts.gov.in/hcservices/ seven trustees, three are to be appointed from the family of the founder and the remaining four trustees will be appointed from among the adult resident applicants of Saidapet and Madras. As per the scheme, the duration of the office of the trustee is five years and the trustee can be removed before the expiry of the period. 2.3. By order dated 13.8.1999 made in Tr.C.M.P.No.7209 of 1999, this Court has transferred the above said scheme suit – O.S.No.63 of 1940 from the Sub Court, Chengalpattu to the Principal Judge, City Civil Court, Chennai and thereafter the administration of the Mosque Endowment has been under the control of the Principal Judge, City Civil Court, Chennai, viz., the Scheme Court, which, according to the petitioner, is the ultimate guardian and custodian of the Mosque Endowment. 2.4. Some of the significant terms and clauses of the said scheme framed by the Court are that the mutawalli of the Mosque Endowment is appointed ordinarily for five years and it can even be for a shorter period and he can be removed before the expiry of the period; that leases of the houses, gardens, etc. belonging to the wakf shall not be granted without the prior approval of the Scheme Court; that the mutawalli can spend amounts as per the budget sanctioned and no expenditure in excess shall be made without special sanction of the Scheme Court; and that the mutawalli shall not occupy buildings belonging to the Mosque Endowment. 2.5. It is the case of the petitioner that the Mosque Endowment has been managed and administered in accordance with the terms of the decree for the past 50 years. It is stated that respondents 3 to 6 were appointed by the Sub Court, Chengalpattu as trustees for five years by order dated 20.4.1989 made in I.A.No.7 of 1989. On the expiry of the term of office, they were reappointed for another period of five years by order dated 8.4.1994 made in I.A.No.169 of 1994 and the said five years period has also expired on 7.4.1999. According to the petitioner, in spite of the expiry of the period, the new trustees were not appointed by the Scheme Court and respondents 3 to 6 continued even after the expiry of the term, subjecting the Mosque Endowment to mismanagement and misappropriation. 2.6. The seventh respondent has filed C.M.P.No.2188 of 2003 before the Principal Judge, City Civil Court, Chennai for appointment of new trustees for the administration of the Mosque Endowment. The learned Principal Judge, City Civil Court, Chennai, by order dated 27.10.2006, after enquiry, has appointed respondents 8 to 14 as trustees. While appointing the said respondents, the Scheme Court has also rejected the claim of respondents 3 to 6 for reappointment. https://hcservices.ecourts.gov.in/hcservices/ 2.7. As against the order of the Scheme Court dated 27.10.2006, respondents 3 to 6 have filed a revision in C.R.P.(NPD) No.1629 of 2006 before this Court with their main grievance that their non selection as trustees and appointment of respondents 8 to 14 as new trustees by the Scheme Court is invalid. The High Court, in the order dated 16.2.2007, has set aside the order of the Scheme Court dated 27.10.2006 appointing respondents 8 to 14 as trustees. The said order was on the basis that after the advent of the Wakf Act, 1995 (for brevity, "Act 43 of 1995"), the power of appointment of mutawalli and administration of the wakf transfers to the Wakf Board and therefore, the Scheme Court has no jurisdiction. The order of this Court dated 16.2.2007 was challenged before the Supreme Court in S.L.P.No.8726 of 2007 and the same was dismissed. The review filed in Review Petition No.886 of 2007 and the Curative Petition No.41 of 2008 were also dismissed by the Supreme Court. 2.8. It is the case of the petitioner that even though in the revision the High Court has set aside the order of the Principal Judge, City Civil Court, Chennai to the effect that the Civil Court has no jurisdiction after the Wakf Board has come into existence, there has been a clear finding that the administration has to be effected as per the scheme. It is his complaint that in spite of such direction no steps have been taken by the Wakf Board in compliance of the said direction given by this Court in the revision, thereby allowing respondents 3 to 6 to continue to be in the office of the trustees illegally. 2.9. The petitioner has also filed petitions on 25.6.2008 and 21.7.2008 before the second respondent – Wakf Board to take action against respondents 3 to 6 for misappropriation, etc., which include the illegal and unauthorised construction of a Multi-Specialty Hospital without obtaining permission from the Scheme Court; the occupying of the ground floor of the said hospital building for residential purpose by the third respondent without paying any rent and using first to fourth floors as hospital; the illegal grant of lease of various plots; the illegal allotment of plots; the continuation of respondents 3 to 6 as mutawallis without any valid appointment; and the non submission of accounts, budget estimates, and spending of huge amounts by respondents 3 to 6 against the interest of the Mosque Endowment. 2.10. Since the second respondent has not taken any action, the petitioner along with respondents 7 and 8 have filed C.M.P.No.944 of 2010 in O.S.No.63 of 1940 before the Scheme Court for removal of respondents 3 to 6 from the post of trustees of the Mosque Endowment, in which petition the Wakf Board has been impleaded as the ninth respondent and has failed to appear in spite of the notice issued. It is stated that however the second respondent has issued a public notification calling for applications from the general https://hcservices.ecourts.gov.in/hcservices/ public for appointment of seven trustees to the Mosque Endowment and according to the petitioner, without taking action against respondents 3 to 6, such conduct of the Wakf Board is in violation of the order of the High Court dated 16.2.2007 passed in the revision. 2.11. It is also stated that the decision of this Court in the revision in respect of its legal position has been altered by a subsequent judgment in Salem Mohammedpura Parimala Sunnath Jammath Masjid Committee, rep. by its Muthavalli v. P.A.Kareem and others, 2008 (2) CTC 492 to the effect that the mere conferment of jurisdiction to the Tribunal under Act 43 of 1995 does not exclude the jurisdiction of the Civil Court for enforcement of civil rights and therefore, according to the petitioner, the order of this Court in the revision and legal position stated therein has been diluted subsequently by the advent of law. 2.12. It is also stated that the Supreme Court also in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC) has taken a stand which is contrary to the decision given by this Court in the revision and therefore, according to the petitioner, the legal position as on date is that the Civil Court has got jurisdiction to try all suits of civil nature except those that are specifically barred under Act 43 of 1995. 2.13. The petitioner has therefore filed the present writ petition on the following grounds: (i)that by virtue of the march of law, by which the legal position has changed, even after the Wakf Boards have been constituted in terms of Act 43 of 1995, the jurisdiction of the Civil Court, especially the Scheme Court, is not taken away and it is the Scheme Court which has to conduct the election as per the scheme framed on 10.2.1941 in respect of the Mosque Endowment; (ii)that inasmuch as a petition has already been filed before the Scheme Court for removal of respondents 3 to 6, in which the Wakf Board is one of the respondents, the Wakf Board cannot act as a judge for adjudicating the issue by way of initiating the election process in parallel proceedings; (iii)that when once the proceedings before the Scheme Court are pending for removal of respondents 3 to 6, unless and until that is completed, since grave allegations have been levelled against them, the parallel proceedings initiated by the Wakf Board for effecting appointment of trustees to the Mosque Endowment is invalid; (iv)that there is a specific bar under Section 66 of Act 43 of 1995 against the Wakf Board to appoint or https://hcservices.ecourts.gov.in/hcservices/ remove mutawalli in respect of the wakf governed by a scheme decree framed by the Courts and therefore, the notification issued by the Wakf Board calling for applications for appointment of trustees to the Mosque Endowment is not valid in law; (v)that the power of the State Government to appoint mutawalli under Section 66 of Act 43 of 1995 cannot be taken way by the second respondent by exercising its power under Section 32(2)(g) of Act 43 of 1995; (vi)that respondents 3 to 6 have committed gross misappropriation and failed to perform their statutory obligations and, in fact, the High Court in the revision itself has given certain directions which have been grossly disobeyed by the second respondent – Wakf Board; (vii)that the scheme suit pending before the Principal Judge, City Civil Court, Chennai in O.S.No.63 of 1940 is administrative in nature governed by the scheme decree dated 10.2.1941 framed under Section 92 of the Code of Civil Procedure and therefore, neither the Government nor the Wakf Board has any jurisdiction to administer the Mosque Endowment; (viii)that the second respondent while acting as per the scheme decree in O.S.No.27 of 1940 in respect of another Wakf, viz., Hazrath Thameem Ansari Dargha Wakf Kovalam at Chennai, is attempting to supersede the scheme framed by the Scheme Court in respect of the present Mosque Endowment and therefore, the stand of the Wakf Board is materially inconsistent; and (ix)that the second respondent should act as per Section 64 of Act 43 of 1995, which imposes a duty to see that proper administration of wakf is effected, especially in respect of appointment and removal of Mutawallis. 3. Even though the second respondent has not filed its counter affidavit, Mr.V.Raghavachari, learned counsel, has filed typed set of papers and made his legal submissions. 4.1. In the counter affidavit filed by respondents 3 to 6, who are holding the post of mutawallis as on date, it is stated that the issue has been finally settled by this Court in the revision in C.R.P.(NPD) No.1629 of 2006, which has been confirmed by the Supreme Court, against which the review petition as well as the curative petition filed were dismissed and therefore, it has been established legally that it is the Wakf Board which is the statutory authority having control over the wakfs, even in respect of the wakfs created by way of scheme. https://hcservices.ecourts.gov.in/hcservices/ 4.2. As far as the allegations made against respondents 3 to 6 are concerned, the same are denied stating that the Scheme Court itself in the order dated 26.3.2004 has appreciated the work done by respondents 3 to 6 as trustees in improving the Mosque Endowment and therefore, according to them, unwarranted allegations have been made against them. 4.3. It is stated that the Fazilathunnissa Begum Sahiba Mosque Endowment was formed to fulfill the sole intention of the founder's Will dated 30.1.1877 with a schematic method of smooth, faithful and perfect management, administration and functioning of the trust. While it is admitted that the scheme was framed by the Sub Court, Chengalpattu on 10.2.1941 and that the same is binding on everyone, it is stated that as per the clause in the scheme the third respondent was appointed as public trustee of the Trust and he took charge as Executive Trustee from 15.12.1995 and is acting as per the Will. 4.4. It is stated that the lease granted in his favour by the Court was extended in I.A.No.36 of 1997 for a period of 50 years and in accordance with the scheme, respondents 3 to 6 have been faithfully discharging their functions by donating their personal funds and the accounts have been maintained and the Assistant Director, Local Fund Audit, Ripon Building, Chennai has made a detailed audit inspection of the trust in the field of accounting, administration and management and has issued an Audit Inspection Certificate along with Audit Inspection Report up to March, 2010. 4.5. It is stated that while things stood so, three petitions were filed by the seventh respondent before the Scheme Court for appointment of Auditor, appointment of Receiver and appointment of Trustees and the Principal Judge, City Civil Court, Chennai, in the order dated 26.3.2004, has rejected all those applications and thereafter, following the procedure, the Scheme Court has appointed the trustees in the order dated 27.10.2006. 4.6. It is stated that it was challenging the said order dated 27.10.2006 a revision in C.R.P.(NPD) No.1629 of 2006 was filed before this Court and this Court, holding that the Wakf Board alone has the power to appoint new trustees and the order of the Wakf Board can be challenged before the Wakf Tribunal, has set aside the order of the learned Principal Judge, City Civil Court, Chennai and gave a direction to the Wakf Board to make necessary advertisement giving opportunity to all persons, including those who have already applied before the Principal Judge, City Civil Court, Chennai, and to act in the best interest of the wakf, directing that till then status quo prevailing as on that date shall continue. https://hcservices.ecourts.gov.in/hcservices/ 5.1. In the counter affidavit filed by respondents 7 and 8, while supporting the stand of the petitioner, it is stated that in the application filed before the Scheme Court in C.M.P.No.2188 of 2003, the Scheme Court had called for applications for appointment of mutawallis, conducted election process and appointed seven new mutawallis, who are respondents 8 to 14, and the claim of respondents 3 to 6 was rejected on the ground of mal-administration by order dated 21.10.2006 and aggrieved by the same, respondents 3 to 6 have filed the revision in C.R.P.(NPD) No.1629 of 2006 before this Court and this Court has set aside the order of the learned Principal Judge, City Civil Court, Chennai, against which the Special Leave Petition filed was dismissed. 5.3. It is stated that even though in the revision an order was passed on 16.2.2007 directing to complete the election process, the second respondent is unable to take any action in accordance with the scheme and therefore, respondents 7 and 8 have filed C.M.P.No.944 of 2010 before the Principal Judge, City Civil Court, Chennai for removal of respondents 3 to 6, in which the Wakf Board is one of the respondents and the said petition is still pending. It is stated that the second respondent - Wakf Board, which has failed to act as per the direction given in the revision, has also not chosen to appear before the Scheme Court. 5.4. It is stated that it is not necessary for the Wakf Board to take the burden of conducting the election for appointment of mutawallis, since the scheme itself contemplates a method and the Scheme Court will follow the same. 5.5. It is stated that even as per Section 7(5) of Act 43 of 1995, with regard to any dispute which is the subject matter of a suit, the jurisdiction of the Wakf Board is excluded and therefore, the Wakf Board need not have the supervisory jurisdiction over the present wakf. 5.6. It is stated that the bar of Civil Court jurisdiction under Section 85 of Act 43 of 1995 is not an absolute bar and it is only in cases where the issue involved is to be decided by a Wakf Tribunal such a bar is imposed and as far as the scheme decree is concerned, there is nothing for the Tribunal to decide. 6.1. In the counter affidavit filed by the ninth respondent, who is the direct descendant of Nawab Fazilathunnissa Begum Sahiba – the founder of the Fazilathunnissa Begum Mosque Endowment, it is stated that he was earlier appointed as mutawalli. It is stated that the Mosque Endowment was found by Nawab Fazilathunnissa Begum Sahiba, one of the daughters of Nawab Wallajha of Carnatic, and it was as per the Will and Codicil written by her the scheme was framed by the Sub Court, Chengalpattu, which was subsequently transferred https://hcservices.ecourts.gov.in/hcservices/ to the file of the Principal Judge, City Civil Court, Chennai. 6.2. It is stated that in C.M.P.No.2188 of 2006, after the expiry of the tenure of appointment of respondents 3 to 6 as early as 7.4.1999, seven new mutawallis were appointed and against that revision was filed in which the appointment was set aside and the appeal before the Supreme Court was also dismissed and in these circumstances, respondents 3 to 6, whose term has already come to an end much earlier, have been taking advantage and are indulging in misappropriation of the properties of the Mosque Endowment. It is stated that it was in those circumstances an application in C.M.P.No.944 of 2010 was filed by respondents 7 and 8 before the Principal Judge, City Civil Court, Chennai for removal of respondents 3 to 6, which is pending. 6.3. It is also stated that while in the revision it was held by this Court that the Civil Court has no jurisdiction, the same learned Judge in another case reported in Samuthra Vijaya Nainar and others v. Sirukadambur Masjid, rep. by its Muttavallis and others, [2007] 4 MLJ 580 has held that cases which are pending before the Civil Court shall continue to be tried in the Civil Court in spite of Section 85 of Act 43 of 1995. Therefore, according to the ninth respondent, Section 85 of Act 43 of 1995 cannot be a bar to the Principal Judge, City Civil Court, Chennai to function as a Scheme Court. It is stated that the Civil Court jurisdiction is not ousted by Section 85 of Act 43 of 1995 in the absence of any provision about the scheme decree in Act 43 of 1995. 6.4. He also relied upon various judgments of the High Court, apart from the decision of the Supreme Court in Sardar Khan and others v. Syed Najmul Hasan (Seth) and others, 2007 [2] CTC 508 to substantiate that as per Section 7(5) of Act 43 of 1995, the pending scheme suit which was filed before the Civil Court before enforcement of Act 43 of 1995 shall continue to be governed by the Civil Court only. 6.5. It is stated that the power exercisable by the Scheme Court cannot be vested with the second respondent - Wakf Board constituted under Section 13 of Act 43 of 1995 and the Wakf Board cannot act as a Scheme Court, especially when the Court has already framed a scheme. 7. In the counter affidavit filed by the fourteenth respondent, who is the brother of the petitioner, it is stated that he has been actively working for the benefit of the Mosque Endowment and inasmuch as the petitioner has not claimed any relief against respondents 7 to 18, he has in effect supported the case of the petitioner, even though it is stated that he has no conflicting interest. https://hcservices.ecourts.gov.in/hcservices/ 8. The sixteenth respondent, while supporting the case of the petitioner, has stated that he has nothing to do with the issue involved, however he has been unnecessarily made as a party. 9.1. It is the contention of Mr.M.N.S.Mohamed Habeeb Raja, learned counsel for the petitioner that even though the revision has set aside the order of the Civil Court appointing respondents 8 to 14 as mutawallis and that has been confirmed by the Supreme Court, inasmuch as by a subsequent Supreme Court judgment in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC) it has been categorically held that the Civil Court jurisdiction is not ousted by virtue of conferment of powers on the Wakf Board, the ratio decidendi arrived at by this Court in the revision is not a correct law and moreover the same was confirmed by the Supreme Court not by considering the issue on merits. 9.2. According to him, there is no res judicata against him, especially when the law itself has changed, by relying upon the judgment in Kunhayammed and others v. State of Kerala and another, [2000] 6 SCC 359. 9.3. The dismissal of the Special Leave Petition, according to the learned counsel for the petitioner, without going into the merits is not a bar to file a fresh petition and therefore, the principle of res judicata has no application by relying upon Nand Kishore v. State of Punjab, [1995] 6 SCC 614. 10. Likewise, the learned counsel appearing for the seventh respondent, Mr.M.L.Denis, would reply upon the decision in Sardar Khan and others v. Syed Najmul Hasan (Seth) and others, 2007 [2] CTC 508 to substantiate that as per Section 7(5) of Act 43 of 1995, the pending scheme suit which was filed before the Civil Court before enforcement of Act 43 of 1995 shall continue to be governed by the Civil Court only. 11.1. Mr.M.K.Hidayathullah, learned counsel for the seventeenth respondent would submit that the principle of res judicata is not applicable to the present case by relying upon Kunhayammed and others v. State of Kerala and another, [2000] 6 SCC 359 and Gangadhara Palo v. The Revenue Divisional Officer and another, 2011 [2] CTC 451. 11.2. It is his submission that the Wakf Board has nothing to do