IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30-06-2006 CORAM THE HONOURABLE MR.JUSTICE P.K. MISRA AND THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN W.P.No.18411 OF 2001, C.R.P.NO.1126 OF 2002 AND CONTEMPT PETITION NO.403 OF 2003 and C.M.P.No.1336/04, WPMP.Nos.27087/01, 58210/02 & Sub Appln.No.211 of 2002 W.P.No.18411 of 2001 H.H. The Prince of Arcot Endowments, Trichy, reprsented by its Agent, Mr.U.Mohamed Khalilullah, having his Office at No.12 Kiledar Street, Trichy-2. ... Petitioner Versus 1. The Tamil Nadu Wakf Board, 3 Santhome High Road, Chennai-600 004, by its Chief Executive Officer. 2. Mr.Mohamed Ilyas 3. Mr.R.A.Mallick 4. Mr.K.Jajuddin 5. Mr.G.R.Mohamed Ali 6. Mr.Jafarullah ... Respondents C.R.P.NO.1126 OF 2002 H.H.NAWAB MOHAMMEDL ABDUL ALI Prince of Arcot, Amir Mahall, Chennai-14. ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ Versus The Tamil Nadu Wakf Board Represented by its Chief Executive Officer, No.3, Santhome High Road, Chennai-4. ... Respondent Contempt Appn No. 403 of 2002 H.H.NAWAB MOHAMMEDL ABDUL ALI Prince of Arcot, Amir Mahall, Chennai-14. ... Applicant Versus 1. Tamil Nadu Wakf Board Represented by its Chief Executive Officer, 3, Santhome High Road, Chennai-4. 2. Mrs.Badhar Sayeed, Chair Person, Tamil Nadu Wakf Board, Chennai-4. 3. Janab. M.K.Khan, Member, Tamil Nadu Wakf Board, Chennai-4. 4. Mrs.Beebijan, Member, Tamil Nadu Wakf Board, Chennai-4. 5. Janab M.S.Abdul Kader, Member, Tamil Nadu Wakf Board, Chennai-4. 6. Janab Abdul Hakkim, Member, Tamil Nadu Wakf Board, Chennai-4. 7. Janab M.S.A.Shajahan, Member, Tamil Nadu Wakf Board, Chennai-4. https://hcservices.ecourts.gov.in/hcservices/ 8. Janab Dr.S.M.Dastagir Member, Tamil Nadu Wakf Board, Chennai-4. 9. Janab Haja K.Majeed Member, Tamil Nadu Wakf Board, Chennai-4. 10. Janab Sikkandhar Member, Tamil Nadu Wakf Board, Chennai-4. 11. Janab Kulam Askari Member, Tamil Nadu Wakf Board, Chennai-4. ... Respondents W.P.NO.18411 of 2001 has been filed under Article 226 of the Constitution for the issuance of writ of certiorarified mandamus calling for the records relating to the order of the first respondent, Tamiil Nadu Wakf Board made on 30-5-2001 in relation to item No.121/2000/WEA.7/2000/E5/Try and item No.80/2000 in Rc.No.6831/2000/C1/Try and quash the same and direct the Board by way of mandamus to do its legal duty by forbearing from interfering with the internal administration of the Prince of Arcot Endowments and its properties in terms of compromise decree in W.P.Nos.1395 to 1397 of 1964 and as interpreted and decided by the Division Bench in W.A.2204/1987 on 13-10-1992 and which have become final between the parties. C.R.P.No.1126 of 2002 against the order passed in I.A.No.118/2002, in Wakf CMA No.2 of 2002 dated 28.6.2002, on the file of the Principal Subordinate Judge, Tirichiraplli. Cont.Appln.No.403 of 2002 has been filed under Sections 10 & 12 of the Contempt of Courts Act to punish the respondent for disobeying the order passed by this Court in W.A.No.2204 of 1987 dated 13.10.1992. For Petitioner : Mr.Aravind P. Dattar in CRP.NO.1126/02 Senior Advocate for and Cont.P.403/2002 Mr.A. Thiagarajan For Respondent : Mr.R. Muthukumaraswamy in CRP.No.1126/02 Addl. Advocate General R1 in WP.18411/01 assisted by https://hcservices.ecourts.gov.in/hcservices/ R1 & R2 in Cont.Petn. Mr.S. Thiruvenkataswamy No.403 of 2002 For Respondents 2, 4 to 6 in WP.18411/01: Mr.V. Raghavachari For Petitioner in WP.18411/2001 : Mr.V.S. Ramakrishnan - - - COMMON JUDGMENT P.K. MISRA, J The facts giving rise to the filing of the present writ petition and the connected Civil Revision and the Contempt Petition are as follows :- It is claimed by the petitioner that the properties comprised in the Prince of Arcot endowments were actually private endowments of Nawabs of Carnatic, who ruled the former Madras Presidency. Such endowments had been founded as an adjunct of their sovereign powers and therefore such endowments were not strictly speaking wakfs. While the matter stood thus, in 1801, the East India Company took over the civil administration and entrusted the administration to the Nawabs of Carnatic, who were reduced as Titular heads. In 1855, after the death of Nawab Wallajah-V, the British administration by applying the Doctrine of Lapse, took over the administration of the endowed properties. However, subsequently, Azeem Jah Bahadur by virtue of Royal Letters Patent was appointed as "Prince of Arcot" and put back in charge of villages, Mosques and endowments. Subsequently, in 1913, a suit for framing a scheme under Section 92 of the Code of Civil Procedure, 1908 was filed with the sanction of the Advocate General and a scheme had been amicably framed. While the matter stood thus, the Prince of Arcot Endowments Act, 1922 (Madras Act II of 1923), hereinafter referred to as "the Endowments Act, 1922" in short, was passed by the Legislative Council of the Madras State and on obtaining the consent of the Governor of Madras as well as Governor General of India, such act became operative. It was "an Act which provides for the better management of the charitable and religious endowments under the control of the Prince of Arcot in the Presidency of Madras". Under Section 2, the Act was made applicable to the charitable and religious endowments specified in Schedule A and Schedule B annexed to the Act. Sections 3 to 5 being relevant, are extracted hereunder :- "3. The charitable and religious endowments specified in Schedule A shall be administered by the Prince of Arcot for the time being so far as the endowments and institutions in the district of Trichinopoly are concerned in accordance with the rules contained in Schedule C hereto https://hcservices.ecourts.gov.in/hcservices/ or any modification thereof under section 4 of the Act and as regards all other endowments and institutions in accordance with such rules as may from time to time be made by the Local Government. 4. The rules in Schedule C except rules (1), (2), (3) and (11) may be added to or altered by the Local Government after consultation with the Prince and the committee, if any, appointed under the rules. 4-A. At least sixty days before making any rules in modification of the rules in Schedule C or for the administration of the endowments specified in Schedule B, the Local Government shall publish a draft of the proposed rules in the Fort St. George Gazette, and any person may, during the said period, making any objection or suggestion to the Local Government who shall take the same into consideration before finally making the rules. The rules may be made by the Local Government either as originally drawn or as amended and shall come into operation forthwith or at such time as may be prescribed in the rules. 5. No suit claiming any of the reliefs specified in the Religious Endowments Act, XX of 1863, or in sub-section (1) of section 92 of the Code of Civil Procedure, 1908, shall be instituted or maintained or continued in respect of the aforesaid charitable and religious trusts." 1.1 Schedule A contains the list of properties constituting the charitable and religious endowments under the control of the Prince of Arcot. Schedule B contains the list of charitable and religious institutions maintained out of the Endowments in Schedule A and Schedule C consists of the scheme of administration of the charitable and religious endowments under the control of the Prince of Arcot in Trichinopoly. 1.2 Statement of Objects and Reasons of the said Act being relevant, is also extracted hereunder :- "The Prince of Arcot administers certain charitable and religious institutions founded by his ancestors, Nawab Wallajah and Nawab Oomdatal-oomra of Arcot. The superintendence of the endowments connected with them was entrusted by the Local Government to the Prince of Arcot and his successors in title in 1867; and they were made responsible for the maintenance, and repair of their structures. A suit was recently filed against the Prince in the Trichinopoly Subordinate Judge's Court for removing him from trusteeship, for the appointment of a committee of supervision and for settling a scheme of management in connection with the endowments in the district of https://hcservices.ecourts.gov.in/hcservices/ Trichinopoly. That suit has been amicably settled in the interests of the institutions and in accordance with the opinion of the leading representatives of the Muhammadan community interested in the endowments and a scheme has been framed as setforth in Schedule C, which adequately provides against maladministration. It is necessary that the supervision of the Local Government provided for by that scheme should be authorized by Law. It is also expedient that neither the Prince should be liable to be removed from his trusteeship nor the scheme altered by means of a suit under the Religious Endowments Act, XX of 1863, or under section 92 of the Code of Civil Procedure. The object of the Bill is accordingly to give effect to the scheduled scheme as regards the endowments in the Trichinopoly district, and to enable rules to be made, if necessary, for the general superintendence of endowments in other parts of the Presidency, as well as to oust the jurisdiction of civil courts to the extent indicated." 1.3 The enactment of Madras Act II of 1923 gave a quietus to the dispute for about 4 decades. However, after the Wakf Act, 1954 was enacted by Parliament and was extended to Madras on 15th January, 1955, and the properties of Prince of Arcot Endowments were registered under the said Act, one Mr.Muhammed Mahmood moved the Tamil Nadu Wakf Board in 1964 for framing a scheme for the endowments. At that stage, on behalf of the present petitioner W.P.No.1395 of 1964 was filed prohibiting the State Wakf Board from interfering with the affairs of the Prince of Arcot Endowments restraining them from proceeding with W.A.No.23 of 1964 (Application filed by Muhammed Mahmood). W.P.No.1396 of 1964 was filed for issuing a writ of Certiorari for quashing the initiation of suo motu proceedings in W.B.No.67 dated 15.7.1964 for framing a scheme. W.P.No.1397 of 1964 was filed for issuing a writ of Mandamus directing the State Wakf Board to remove the Prince of Arcot Endowments from the List of Wakfs of the Madras State. In the said writ petitions, Muhammed Mahmood, who was the second respondent in W.P.No.1395 of 1964, had not appeared. Ultimately a compromise was effected between the petitioner and the State Wakf Board and it is extracted hereunder :- " MEMO OF COMPROMISE 1. The petitioner Endowments will continue to be administered by the present H.H. The Prince of Arcot or his agent for the time being. There should not be any Committee or Sub-Committee to run the endowments. In other respects the scheme envisaged under the Madras Act II of 1923 will apply. 2. The petitioner Endowments agrees that it shall come under the entire control and purview of the Central Act 29 of 1954. https://hcservices.ecourts.gov.in/hcservices/ 3. The Special Officer for Wakfs/State Wakf Board shall levy contribution over the income from the properties of the Endowments under Central Act 29 of 1954 and that the arrears of contribution payable by the Endowments shall be paid to the Special Officer for Wakfs in two instalments the 1st instalment payable on or before 17th April 1971 and the 2nd instalment on or before 17th July 1971. If necessary, towards the contribution payable by the Endowments to the Special Officer for Wakfs, the Endowments shall transfer the fixed deposits towards contribution to the Special Officer for Wakfs. 4. The Special Officer for Wakfs/State Wakf Board will not interfere in the internal administration of the Prince of Arcot Endowments and its properties if the administration is in consonance with the Muslim Wakfs Act. The Special Officer for Wakfs/State Wakf Board however shall assist the petitioner in managing and administering the properties of the Endowments if and when such assistance is required by the petitioner Endowments in the interests of the Endowments. 5. the Petitioner represents that the accounts of the Endowments have been audited upto 1969/70 by its Auditors and therefore the Special Officer for Wakfs agrees that the Local Fund Audit under the authority of the Special Officer for Wakfs shall commence to audit the accounts of the Endowments and its properties from 1970-71. 6. The Special Officer for Wakfs/State Wakf Board shall assist the Endowments to recover the Income-tax deduction and help the Endowments to recover the alienated properties. 7. The petitioner and the respondent shall start a College for girls or an Industrial School for boys at Tiruchirapalli and such a College shall be named as "THE PRINCE OF ARCOT WAKF BOARD COLLEGE FOR GIRLS" or "THE PRINCE OF ARCOT WAKF BOARD INDUSTRIAL SCHOOL FOR BOYS" as the case may be. 8. In view of the compromise agreed to between the parties hereto, the W.P.Nos.1395, 1396 and 1397 of 1964 be dismissed as withdrawn and not pressed and equally the Special Officer for Wakfs shall not take any action against the petitioner on the petitions pending before him in view of this compromise. 9. There shall be no order as to costs." In view of the compromise, three writ petitions were dismissed as "withdrawn and not pressed" on 6.4.1971. 1.4 In 1977, Anjuman-e-Mussalliyan-e-Masjid-e-Wallajahi filed a petition before the State Wakf Board under Section 55(2) of the Wakf Act, 1954 to institute a suit for proper administration of the Prince https://hcservices.ecourts.gov.in/hcservices/ of Arcot Endowments in the city of Madras. At that stage, the petitioner filed W.P.No.6010 of 1979 for issuing a writ of Prohibition prohibiting the State Wakf Board from proceeding with the enquiry. In the meantime, the State Wakf Board had initiated suo motu action for administration of the endowments of Prince of Arcot at Trichirapalli and notice dated 22.2.1980 had been sent intimating the proposal of the Board to constitute an Advisory Committee to assist the Agent of the Prince of Arcot. Such notice was challenged in W.P.No.1312 of 1980. While those writ petitions were pending, the petitioner filed W.P.No.3763 of 1986 for issuing a direction to remove the endowments of Prince of Arcot from the list of Wakfs of the Madras State. All the three writ petitions were heard together. The contention of the State Wakf Board at that stage was that on the basis of the terms of the compromise, the Wakf Board was entitled to initiate appropriate proceedings. The contention of Anjuman-e- Mussalliyan-e-Masjid-e-Wallajahi, who was the second respondent in W.P.No.6010 of 1979 and W.P.No.3763 of 1986, was to the effect that the Madras Act II of 1923 stood repealed under the Wakf Act, 1954 as the earlier Act was repugnant to the later Act. While considering various contentions, the learned single Judge in his judgment dated 28.1.1987 observed as follows :- "... Placing reliance on the language of clause (2) of the Memorandum of Compromise, learned counsel for the first-respondent would advance a submission that there is no escape from the applicability of the entire provisions of Act 29 of 1954. In my view there is no need to dwell upon the scope and amplitude under which the endowments shall be governed by Act 29 of 1954, for the purposes of the present case, because assuming that the case of the first-respondent that the entirety of the provisions of Act 29 of 1954 shall apply to the endowments is correct and has got to be accepted, yet the possibility of interference can come into play only if the administration or in other words the management of the endowments is not in consonance with the provisions of Act 29 of 1954. This is what clause (4) of the Memorandum of Compromise comprehends, stipulates and lays down. Learned counsel for the first-respondent is not in a position to point out any specific provision in Act 29 of 1954 as it stood at the relevant point of time and as it stands even today relating to and delineating the administration or management of endowments like the present one on the basis of which it could be stated that the administration of the present endowments is not in consonance with them. It must be straightaway pointed out that Act 29 of 1954 does not lay down any scheme or rules for the administration or management of any particular wakf or wakfs. Only if the administration of the endowments is not in consonance with any provision of Act 29 of 1954, clause (4) found both in the Memorandum of Compromise and in the Order drafted by this Court, can come into play. https://hcservices.ecourts.gov.in/hcservices/ Hence, I do not propose to decide this larger question academically, when the facts do not warrant such probing at this juncture. As rightly contended by learned counsel for the petitioner, I find that it is not the complaint against the petitioner that the obligations cast upon him under the terms of the Memorandum of Compromise were not and are not being adhered to by him. But, the more important aspect is that even on the assumption, the entire provisions of Act 29 of 1954 are attracted, no case is made out that the administration or management of the endowments is not in consonance with any specific provision of Act 29 of 1954, laying down rules for such administration or management. This being the factual position, then the present proceedings must be characterised as totally incompetent and lacking in jurisdiction. Hence, I have to eschew the contention put forth by the learned counsel for the first- respondent." (Emphasis added) While dealing with the contention of the second respondent in those writ petitions, the learned single Judge further observed as follows :- "8. The second-respondent in W.P.No.6010 of 1979 and 3763 of 1986 is a Society, registered under the Societies Registration Act, with the avowed object of taking steps from time to time for the proper upkeep and maintenance of the Wallajahi Mosque, Triplicane, Madras, and this is one of the endowments and institutions covered by Madras Act II of 1923. It has no interest in any other endowment or institution covered by Madras Act II of 1923. In its counter-affidavit filed in W.P.No.6010 of 1979, it has taken up the stand that Madras Act II of 1923 was repealed expressly by Section 69(2) of Act 29 of 1954. This is factually incorrect and there is no express repeal of Madras Act II of 1923 by Section 69(2) of Act 29 of 1954. Only realising this position, Mr.V.S. Subramanyan and that too in the course of his arguments, would submit that there is a repeal by implication, because the Special Statute; a State enactment Madras Act II of 1923 is repugnant to the general statute Act 29 of 1954, a Central enactment. Before I ventured to go into the intricacies of the maxim 'Generalia Specialibus non derogant', I called upon Mr.V.S. Subramanayan to point out the aspects of repugnancy or inconsistency between the enactments. Learned counsel would only submit that the Scheme in Schedule 'C' to Madras Act II of 1923 come into conflict with certain provisions of Act 29 of 1954. He would state that rule 3 in Schedule 'C' runs contrary to Sections 42 and 43 of Act 29 of 1954, in that the said rule 3 contemplates appointment of an Agent by the Prince of https://hcservices.ecourts.gov.in/hcservices/ Arcot, and this would militate against the power of the State Wakf Board to appoint and remove a Muthavalli, under Sections 42 and 43 of Act 29 of 1954. Learned counsel would also state that Rules 8 and 9 in Schedule 'C' to Madras Act II of 1923 relating to Accounts and Audit would come into conflict with Sections 31, 32 and 33 of Act 29 of 1954. There are all the only features, which the learned counsel advanced on his theory of repugnancy and inconsistency. Even these contentions, as stated above, were expressed only in the course of arguments. They have not been specifically pleaded in the counter-affidavit. This submission could not have countenance and scrutiny at the hands of this Court, for the simple reason, the Scheme in Schedule 'C' to Madras Act II of 1923 relates to the Endowments and Institutions in Tiruchirapalli alone and does not touch any endowment or institution in the city of Madras. The second-respondent in W.P.Nos.6010 of 1979 and 3763 of 1986 has not proclaimed any interest in the endowments and institutions in Tiruchirapalli. It has taken up cudgels against the petitioner only in respect of Wallajahi Mosque, Triplicane, Madras. The Scheme in Schedule 'C' to Madras Act II of 1923 has nothing to do with this mosque. If this is so, certainly it will not lie in the mouth of the second-respondent through its counsel to voice forth a grievance of repugnancy and inconsistency between Schedule 'C' to Madras Act II of 1923 and Act 29 of 1954. It has no locus standi at all to advance this theory of repugnancy and inconsistency between the two enactments. On being called upon to express its stand on this aspect, the State of Tamil Nadu, in an affidavit of clarification filed by its concerned Deputy Secretary, has declared that Madras Act II of 1923 cannot be said to have been repealed under Section 69(2) of Act 29 of 1954. It has already been noticed that the State Wakf Board has no plea of repugnancy and inconsistency. Though I heard submissions and counter- submissions on this aspect, both from Mr.V.S. Subramanyan and from Mr.V.P. Raman, there is no need at all to dwell upon this aspect, if I take note of the limited place and role of the second-respondent in W.P.Nos.6010 of 1979 and 3763 of 1986, could assume as against the petitioner. Hence, I have to repel this line of attack put forth by the said respondent." Ultimately, W.P.Nos.6010 of 1979 and 1312 of 1980 were allowed and W.P.No.3763 of 1986, where the petitioner has prayed for exclusion of the endowments of the Prince of Arcot from the list of Wakfs, was dismissed. https://hcservices.ecourts.gov.in/hcservices/ 1.5 W.A.No.2204 of 1987 was filed by Anjuman-e- Mussalliyan-e-Masjid-e-Wallajahi, so far as such order related to W.P.No.6010 of 1979. The Division Bench, while dismissing the appeal, observed as follows :- "4. ... A combined reading of clauses 1 and 4 clearly establishes that the Wakf Board had agreed to allow the Price of Arcot to administer the Endowments, as before without any interference on its part. It is significant that even before the learned Judge it was not the complaint that the 1st respondent was not adhering to the terms of the memorandum of compromise and the 2nd respondent Wakf Board also did not make any attempt to resile from the compromise. On a fair and conjoint reading of clauses 1 and 4 of the terms of the compromise, referred to earlier, it is clear that the Wakf Board had agreed to allow the Prince of Arcot to administer the endowments without any interference in their internal administration either by the appointment of Committee or sub-committees or even otherwise. It is also important to note that the Wakf Board had agreed to offer its assistance in the management and administration of the properties of the Endowments and agreed to render such assistance, as and when required by the 1st respondent herein. This would also indicate that the Wakf Board, apart from rendering such assistance, as may be required by the first respondent from time to time, had agreed to keep aloof in the matter of administration relating to the endowments by the Prince of Arcot. Clause 2 of the compromise, on which considerable reliance was placed, cannot be read in isolation. Therefrom, it is seen that the 1st respondent had agreed that the Endowments shall come under the entire control and purview of the Wakf Act, as agreed to by him as could be gathered from the order passed in W.P.Nos.1395 to 1397 of 1964. A reading of clauses 2, 3 and 5 together, would show that the 1st respondent an the Wakf Board had agreed that the Board is at liberty to levy contribution and the 1st respondent had agreed for the audit of the accounts by the Local Fund Audit under the authority of the Special Officer of the Wakf Board. Apart from the aforesaid aspects, the terms of the compromise do not in any manner affect the management and administration of the Endowments by the Prince of Arcot. Though under clause 2 of the compromise, it is seen that the 1st