IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.01.2010 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL W.P.No.4643 of 2003 R.Dhanaraj ..Petitioner Vs 1.The Tamil Nadu Wakf Board represented by its Chief Executive Officer, No.3, Santhome High Road, Mylapore, Chennai- 600 004. 2.The Executive Officer, Aga Mohideen Mosque, No.17, Venkateswara Naicken Street, Chepauk, Chennai- 600 005. 3.Agai Syed Muntazar Ali, Managing Trustee, Shia Trust, 25-L, Mosque Street, Mylapore, Chennai- 600 004. 4.Aga Mohideen Mosque represented by its Secretary, A.K.Jarook Ali, S/O.Ahmed Kabir, 10, 14th Cross Street, Mandavelipakkam, Chennai-28. ..Respondents (4th respondent impleaded as per order dated 05.08.2003 in WPMP No.18430/2003) PRAYER: Petition filed under Article 226 of the Constitution of India for a writ of certiorarified mandamus, calling for the records relating to the order passed by the 1st respondent/Tamil Nadu Wakf Board in its proceedings, Proc.Rc.No.11795/2001/Ch/E4, dated 14.01.2003 and quash the same and to direct the respondents 1 and 2 to take recourse to the court of law against the petitioner and his leasehold rights. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Kaaruppan For Respondents : 1.Mr.V.Lakshminarayanan for R1&2 2.No Appearance for R3 3.Mr.N.A.NizarAhamed for R4 ORDER The petitioner has filed this writ petition challenging the order of the 1st respondent/Tamil Nadu Wakf Board, Chennai-4 in its proceedings Proc.Rc.No.11795/2001/Ch/E4, dated 14.01.2003, wherein the 1st respondent has directed the petitioner to remove the encroachment and deliver vacant possession of the land involved in the writ petition. 2.According to the learned counsel for the petitioner, the petitioner is a tenant having a leasehold rights in the land involved in the writ petition and originally in the year 1947 a piece of vacant land, measuring an extent of 2400sq.ft bearing No.51, Mandaveli Lane, Mylapore, Chennai-600 004 has been taken on lease by one P.Sambanda Mudaliyar and the lease has been for a period of ten years as per the document No.993 of 1947, dated 07.08.1947 and the lessor, a Muslim Community Trust viz., Shia Trust managed by the 3rd respondent and his predecessors and later P.Sambanda Mudaliyar subleased the the land to the petitioner's father K.S.Rajagopal Chettiar for a period of nine years by means of a registered document dated 30.11.1948 and pursuant to the sublease, the petitioner's father has applied to the Corporation, Madras for sanction plan out of own funds put up constructions in accordance with planning permission and after constructions, he has been living there with his family till his demise of 06.08.1985 and also inducted many sub tenants and the 3rd respondent /Trust after the expiry of the original lessee's term, renewed the lease periodically in the name of petitioner's father etc., and after the death of K.S.Rajagopal Chettiar, there has been a family understanding and all the legal heirs have consented for executing a fresh lease deed on 29.01.1988 and the same has been registered as document No.218 of 1988 at the office of Sub-Registrar, Mylapore, Chennai-4. 3.It is the stand of the petitioner that the said fresh lease deed is for 75 years that expires in the year 2062 and also that the 3rd respondent/Trust has executed a Declaration Deed that the petitioner is having leasehold rights in respect of the land involved in this writ petition and the buildings/superstructure put up thereon absolutely belonging to him etc. 4.The case of the writ petitioner is that there has been a change in the practice of payment of land rent in the year 1990 and the 3rd respondent/Trust has collected the land rent from the petitioner and has issued the receipts of the 1st respondent along with the 3rd respondent's counter signature and in the year 1993 bit https://hcservices.ecourts.gov.in/hcservices/ notices have been circulated in the area to the effect that the land involved in the writ petition along with its larger extent has been brought under the direct control of the 1st respondent and the 2nd respondent has been appointed to administer the lands and that all dues/rents to the lands have to be sought to be paid thereafter to the 2nd respondent and resultantly, the 1st and 2nd respondents have started to issue rent receipts to each and every one of the tenants without verifying their status of the subtenants has started to deny the title of the landlords and willfully failed to pay rents and the petitioner is one among such landlords. 5.That apart the writ petitioner has stated that the 3rd respondent inducted him and his father as tenant in the land involved in this writ petition and that the lease is still subsisting and he is ready and willing to pay land rent to 1st respondent in the same manner adopted earlier and even willing to purchase the land if offered without prejudice to the petitioner's stand, he has offered the lease amount to 1 and 2nd respondents on various occasions. But they have refused to receive and rejected the same and also directed the petitioner to send the land rents by means of Demand Draft. 6.The 1st respondent has issued a notice dated 03.12.2001 mentioning that an individual refusing to pay the lease amount will be treated as an encroacher and called upon the petitioner to show cause why he should not be summarily ejected as an encroacher, for refusal of payment of lease amount and a suitable reply dated 17.12.2001 has been sent by the petitioner. Again the first respondent has issued a notice dated 24.12.2001 calling upon the petitioner to appear for an enquiry. During the enquiry, the petitioner has contended that he has always ready and willing to pay the rent for the portion occupied by him etc. But the 1st respondent has passed a final order dated 14.01.2003 requiring the petitioner to remove and deliver vacant possession of the land in issue, in this writ petition. 7.A perusal of the proceedings of the 1st respondent/Chief Executive Officer, Tamil Nadu Wakf Board, Chennai-600 004 in R.O.C.No.11795/2001/Ch/E4, dated 14.01.2003 goes to show that the petitioner has been issued with a notice dated 03.12.2001 as per Section 54(1) of the Wakf Act, 1995 naming as an encroacher and to show cause as to why an order requiring him to remove the encroachment within 15 days from the date of receipt of the order may not be made against him and the same has been received by the petitioner on 13.12.2001 for which, the reply has been sent by the petitioner on 17.12.2001 etc. 8.It is not in dispute that a notice dated 24.12.2001 has been issued to the petitioner to appear for an enquiry before the Chief Executive officer of the Tamil Nadu Wakf Board for an enquiry on 07.01.2002 and the petitioner has appeared before the said officer https://hcservices.ecourts.gov.in/hcservices/ and has given his statement. It appears that the Board has considered the matter and has come to the conclusion that it cannot recognise the encroacher's claim which will be contrary to the provision of the Wakf Act, 1955, etc. 9.The pith and substance of the proceedings of the 1st respondent dated 14.01.2003, the Board has satisfied itself in coming to the conclusion that the property in issue is a wakf property and the petitioner has encroached upon the wakf property and for encroachment, there is no record to prove his ownership of the land and resultantly, he has been directed under Section 54(3) of the Wakf Act, 1195, to remove the encroachment and deliver vacant possession of the land in Survey R.S.No.3092 situated at Mylapore, Chennai-600 004 measuring an extent of 2400 sq.ft. Belonging to the Agar Mohideen Mosque, Mylapore, Chennai-600 004 which is a surveyed and notified Wakf to the Muthawalli of the said Wakf within 15 days from the date of receipt of this proceedings etc. 10.Expatiating his submissions, the learned counsel for the petitioner contends that the petitioner cannot be termed as an 'Encroacher' and as a matter of fact the 3rd respondent/Trust has executed a fresh lease deed on 29.01.1988 by means of a registered document No.218 of 1988 at the office of Sub-Registrar, Mylapore, Madras and the said lease for 75 years and the same expires only in the year 2062 and furthermore, the 3rd respondent has also executed a Declaration Deed that the petitioner is possessing a leasehold rights in respect of the land involved in this writ petition and the buildings/Superstructures put up thereon, absolutely owned by him. However, this fact is disputed by the 1,2 and 4th respondents on the ground that the 3rd respondent/Trust has no authority to execute the said lease for a period of 75 years, which is not admittedly recognised by the Wakf Board. Also, it is brought to the notice of this Court that the 3rd respondent/Trust is not a recognised Muthawalli of the Board and therefore, the purported lease deed dated 29.01.1988 for a period of 75 years, said to be expiring in the year 2062 is of no avail and the same is unsustainable in law. 11.It is to be noted that the Section 54 of the Wakf Act, 1995 speaks of 'Removal of encroachment from wakf property'. It is not out of place for this Court to point out that as per Ramanatha Iyer's Law Lexicon (Second Edition Reprint, 2001) the term 'Encroachment' means an unlawful gaining upon the right or possession of another person, a gradual entering on and taking possession by one of what is not his own; the gaining upon the rights or possession of another. 12.On behalf of the respondents, it is contended that the petitioner cannot maintain the writ petition before this Court seeking the relief to quash the order passed by the 1st respondent/Tamil Nadu Wakf Board in Proceedings Proc.Rc.No.11795/2001/Ch/E4, dated 14.01.2003, inasmuch as the https://hcservices.ecourts.gov.in/hcservices/ petitioner has got a viable, effective and efficacious alternative remedy as per Section 54(3) of the Wakf Act, in and by which it is open to an aggrieved person to canvass the order passed by the Chief Executive of the Wakf Board by means of filing a suit, even establishing his right or interest or title in the land in issue. 13.At this stage, this Court aptly recalls the decision in Abdul Majeed Musliyar and others v. M.T.Mammad Koya and others – AIR 2002 KERALA 71, wherein it is observed that; 'Bar of jurisdiction of civil Courts as per Section 84 of the Wakf Act (43 of 1995) is limited only in respect of suits and proceedings pending before the Wakf Tribunal and it has no effect on appellate jurisdiction exercised by District Court in terms of Civil Procedure Code.' 14.In support of the contentions that the petitioner has the right to file a suit in regard to the issues involved in the present writ petition, the learned counsel for the petitioner cites the decision in Salem Mohammedpura Parimala Sunnath Jammth Masjid Committee, represented by its Muthuvalli, D.No.6, Majeed Street, Salem-1 v. P.A.Kareem and others – 2008 (2) CTC 492 at Page No.510, wherein it is held hereunder; 'It is not in dispute that the subject matter of the Suit is a Wakf property and that the respondents are the tenants of the said property. Some of the Suits instituted by the petitioner for eviction, after the commencement of the Act, have been transferred to the Wakf Tribunal (Additional Sub-Court) Salem for adjudication. It is evident from the typed-set of papers that one of the Suits in O.S.No.99 of 1997 filed against the first respondent was transferred to the Wakf Tribunal in W.O.P.No.17 of 1999. The respondents have filed the Suit in O.S.No.815 of 1998 on the file of the District Munsif, Salem seeking for permanent injunction in respect of the same property. The dispute between the parties, as to whether the petitioner herein has attempted to disturb the peaceful possession and enjoyment of the respondents in respect of portions held by them as tenants and whether the respondents herein, have defaulted in payment of rent, in my opinion, clearly falls outside the ambit of words "other matter relating to any wakf or wakf property or other matter which is required by or under this Act to be determined by a Tribunal". Therefore, the Civil Court's jurisdiction is not ousted by either express or by implied exclusion.' 15.He also brings it to the notice the decision of this Court A.R.Abdul Thurab v. (1)N.H.Md.Obaidullah Massood, General Secretary, https://hcservices.ecourts.gov.in/hcservices/ Haarath Syed Thurabuddeen Sah, Qadariyul Chishthy Dargah, Advisory Committee, Government Stanely Hospital Compound, Chennai-1 (2)The Tamil Nadu Wakf Board, No.7/4, 9th Cross Street, Indira Nagar, Adyar, Chennai-20 – 2008(5)CTC 679, at Page 681, wherein it is observed that; 'Wakf Act do not exclude jurisdiction of Civil Court for enforcement of civil rights.' 16.On a careful consideration of respective contentions and on assessment of over all facts and circumstances of the case in a cumulative fashion, this Court is of the considered view that the petitioner cannot maintain a writ petition before this Court for the reliefs sought for in the writ petition based on the simple fact that the petitioner has an effective, viable, alternative efficacious remedy by means of filing a necessary suit as per Section 54(3) of the Wakf Act before the Wakf Tribunal viz., the I Assistant Judge, City Civil Court, Chennai, wherein the petitioner can even establish his rights, title or interest in the property and added further the issues involved in the writ petition are of factual one and admittedly the same cannot be gone into by this Court in this writ petition, inasmuch as the jurisdiction under Article 226 of the Constitution of India cannot be invoked for the relief sought for by the petitioner and the same has to be exercised by this Court sparingly and with care and circumspection and viewed in this perspective, the writ petition is devoid of merits and the same is dismissed as not maintainable without costs. Further, the liberty is granted to the petitioner to approach the Wakf Tribunal viz., the I Assistant Judge, City Civil Court, Chennai for filing of a suit against the order passed by the 1st respondent in its proceedings, Proc.Rc.No.11795/2001/Ch/E4, dated 14.01.2003, wherein the petitioner can also seek relief in establishing his right title or interest over the subject matter of the property involved in the writ petition and seek appropriate remedy in the manner known to law if so advised. 17.Since this Court has not gone into the merits of the case in this writ petition, it is open to the respective parties to raise all factual and legal issues involved in the matter in issue before the Wakf Tribunal when a suit is instituted by the petitioner and if the suit is instituted by the petitioner, then the Wakf Tribunal viz., the I Assistant Judge, City Civil Court, Chennai, shall dispose of the said suit dispassionately, as expeditiously as possible, uninfluenced by any of the observations made by this Court in this writ petition. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps https://hcservices.ecourts.gov.in/hcservices/ To 1.The Chief Executive Officer, Tamil Nadu Wakf Board No.3, Santhome High Road, Mylapore, Chennai- 600 004. 2.The Executive Officer, Aga Mohideen Mosque, No.17, Venkateswara Naicken Street, Chepauk, Chennai- 600 005. + 1 c.c. to Mr. N.A. Nissarahamed, Advocate. S.R.No.155. + 1 c.c. to Mr. R. Karuppan, Advocate. S.R.No.33. + 1 c.c. to Mr. V. Raghavachari, Advocate. S.R.No.214. W.P.No.4643 of 2003 BKY (CO) GSK 18.01.2010. https://hcservices.ecourts.gov.in/hcservices/