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Judgment
S. Tamilvanan, J.—This Civil Revision Petition has been preferred against the Fair and Decretal Order, dated 23.06.2008 made in O.A.
No. 1 of 2008 on the file of the Wakf Tribunal / First Assistant Judge, City Civil Court, Chennai. The petitioner herein was the first respondent in
the Original Application. The first respondent herein as applicant had filed the Original Application in OA. No. 1 of 2008 before the Wakf
Tribunal, u/s 83 (1) and (2) of the Wakf Act, 1995, seeking permanent injunction, restraining the revision petitioner herein from discharging the
duties of mutawalli of Haarath Syed Thurabuddeen Sah Qadariyul Chishthy Dargah, situated at Government Stanley Hospital compound, Chennai
- 1 and to appoint a manager or fit person at the behest of the Advisory Committee from among the committee members of the Dargah / Wakf to
manage and administer the day to day affairs of the Wakf.
The Wakf Tribunal, allowed the application, directing the Wakf Board, the second respondent herein to take over the management of the Wakf
within 15 days from the date of receipt of a copy of that order and also granted permanent injunction restraining the revision petitioner from
discharging the duty of mutawalli of the Wakf. Aggrieved by the said order, the revision petitioner / first respondent has preferred this revision.
According to the revision petitioner, the Original Application filed by the first respondent herein u/s 83 (1) and (2) of the Wakf Act, 1995 was
not legally maintainable. The Advisory Committee, which is being represented by the first respondent is not recognised by the Wakf Board and
therefore, the first respondent has no locus standi or legal right to make a complaint. The revision petitioner has further averred that the findings of
the court below is perverse, since the same was not based on any sound reasoning, supported by oral and documentary evidence. According to
the petitioner, there is no provision to restrain the mutawalli from discharging his duties, when he was appointed by the Wakf Board and his
appointment has not been challenged in the manner known to law.
Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the revision petitioner submitted that the Wakf Tribunal has passed the impugned
order in O.A. No. 1 of 2008 without having jurisdiction and the findings of the court below is perverse, since the same is against the evidence
available on record and therefore, liable to be set aside. The learned Senior Counsel appearing for the revision petitioner drew the attention of this
Court to Section 83 (1) and (2) of the Wakf Act, 1995 and contended that the Tribunal could not have exercised its original jurisdiction, when an
earlier similar application is pending before the Wakf Board and the same was also brought to the notice of the Tribunal. However, the learned
Senior Counsel has not disputed that the Tribunal under the Wakf Act is empowered to decide any dispute, question or other matter, relating to
Wakf or wakf property, as per Section 83 (1) and (2) of the Wakf Act, 1995.
Section 83 (1) of the Wakf Act, 1995 reads as follows:
83 (1): The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of
any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of
each of such Tribunals.
Sub-Section 2 of Section 83 of the Wakf Act, 1995 reads as follows :
83 (2): Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may
make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the
Tribunal for the determination of any dispute, question or other matter relating to the wakf.
Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the first respondent submitted that the Wakf Tribunal is the competent forum to
decide the Original Application. When there are serious allegations raised by the first respondent herein against the revision petitioner, who was
functioning as mutawalli, according to the learned Senior Counsel for the first respondent, there is nothing illegal on the part of the Wakf Tribunal in
granting injunction restraining the revision petitioner from functioning as mutawalli and to direct the second respondent to take over the
administration of the Wakf.
Mr.V.Lakshmi Narayanan, learned counsel appearing for the second respondent drew the attention of this Court to Section 83 (2) of the Wakf
Act, 1995 and argued that any mutawalli or person interested in a wakf or any other person aggrieved by an order made under this Act, or rules
made thereunder, may make an application before the Tribunal.
As per Section 65 of the Wakf Act, 1995, where no suitable person is available for appointment as mutawalli of a wakf and the Board is
satisfied for the reasons to be recorded by it in writing, the Wakf Board may by Notification in the Official Gazette assume direct management of
the wakf for such period or periods, not exceeding five years in the aggregate. It is not in dispute that no Notification has been issued, pursuant to
the order passed by the Wakf Tribunal.
The Division Bench of this Court in, Salam Khan vs. The Tamil Nadu Wakf Board & others, reported in 2005 (1) LW 676, has held as
follows:
It may be mentioned that Sections 83(1) and 84 of the Act do not confine the Jurisdiction of the Wakf Tribunal to the determination of the
correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our
opinion, Sections 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before
invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed
under the Act.
It is a settled proposition of law that as per the Wakf Act, the Wakf Tribunal is empowered with all the powers that are available to any Civil
Court in resolving the dispute relating to the Wakf and its properties.
Learned Senior Counsel appearing for the revision petitioner strenuously contended that there is no dispute with regard to the power of the
Wakf Tribunal for the determination of any dispute, relating to wakf or wakf property under the Act. However, according to the learned Senior
Counsel, when similar matters are pending before the Wakf Board, which are earlier in point of time and having been brought to the notice of the
Tribunal, the Wakf Tribunal should not have exercised the power and decided the same, without sufficient materials and evidence against the
revision petitioner. According to the learned Senior Counsel, the findings of the Tribunal is perverse, since the same is against the material evidence
available on record and hence, liable to be set aside
Per contra, Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the first respondent contended that the father of the revision
petitioner himself has given a complaint before the second respondent, stating that the revision petitioner, his son is a drunkard and committed
malpractice in the administration of the Wakf and therefore, the finding of the Tribunal cannot be construed as perverse to set aside the impugned
order.
It is an admitted fact that the father of the revision petitioner, Abdul Rasheed had filed an Application in W.E.A. No. 12 of 2006 before the
second respondent, Wakf Board, raising similar allegations against the revision petitioner, however, the petition is pending for disposal for a long
time, for the reasons best known to the second respondent herein. The first respondent herein raised allegation against the revision petitioner that
he was in the habit of consuming liquor within the Dargah and misusing the money available in the hundial kept inside the Dargah and that is why he
filed the application to remove the revision petitioners as mutawalli of the Wakf.
It is not in dispute that as per the order passed in the Interlocutory Application in I.A. No. 4295 of 2008 in O.A. No. 1 of 2008 by the
Tribunal, the Inspector of Wakf, Chennai-North was appointed to enquire on the allegation made against the revision petitioner as mutawalli and
accordingly, he submitted the report. After having made an enquiry, the Inspector of Wakf, Chennai-North filed his report, dated 01.04.2008
before the Wakf Tribunal and as per the report of the Wakf Inspector, available in the typed set, the Wakf Inspector has stated that the allegation
made against the revision petition that he was a drunkard and the allegation of misappropriation of money from the hundials are totally false. He has
further submitted in the report that there are six hundials in the Dargah, which are being sealed then and there by the officials of the Wakf Board,
even after taking out the collections of the hundials for the purpose of counting, the hundials are being locked and sealed by the officials of the
second respondent and the amount so taken is immediately sent to Tamil Nadu Wakf Board, in order to deposit the same in the name of the Wakf
and the key of the hundials are also under the custody of the officials of the Wakf Board and therefore, the allegations raised against the revision
petitioner as mutawalli is baseless. In the impugned order, the Wakf Tribunal has specifically stated the same available in the the report of the
Inspector of Wakf, Chennai-North, dated 01.04.2008.
However, the Wakf Tribunal has given its finding against the averments of the report filed by the Wakf Inspector on 01.04.2008, though he
was appointed only by the Wakf Tribunal to enquire the matter and submit his report. Admittedly, the Tribunal has not scrapped the report and
further there is no evidence or reason to scrap the enquiry report submitted by the Inspector of Wakf. Even if the report is biased and against the
prevailing facts and reality, the Tribunal could have scrapped the same on the basis of sound reasoning and in such case, the Tribunal could have
appointed some other officials of the Wakf for the said purpose. From the impugned order, it is seen that the Tribunal has not given any valid
reason to ignore the report of the Wakf Inspector and for taking a contradictory view against the report submitted by the Wakf Inspector, who
had been appointed by the Tribunal.
It is not in dispute that the father of the revision petitioner had filed an application before the second respondent in W.E.A. No. 12 of 2006
raising the very same allegation against the revision petitioner. Merely because the said applicant has been the father of the revision petitioner, the
averments made by him cannot be accepted as true and genuine, as his intention was only to remove the revision petitioner from the office of
mutawalli and further the aforesaid application is still pending before the second respondent, Wakf Board for disposal. On the above
circumstances, the Wakf Tribunal cannot draw any inference on presumptions, merely based on the complaint given by the father of the revision
petitioner. As the Inspector of Wakf, Chennai-North, who was appointed to enquire the matter, as per the order passed in the Interlocutory
Application in I.A. No. 4295 of 2008 by the Tribunal, unless there is valid reasons to be recorded the Tribunal cannot ignore the report filed by
the Wakf Inspector and take a contrary view, without any legal basis or evidence.
In the aforesaid circumstances, as contended by the learned Senior Counsel appearing for the revision petitioner, I am of the view that the
finding of the Wakf Tribunal is totally perverse, since the same is against the evidence available on record. As there is an earlier similar Application
in W.E.A. No. 12 of 2006, which is pending before the second respondent, the Tamil Nadu Wakf Board, the competent authority, directly to deal
with the disputes relating to Wakf, without any acceptable legal evidence, the Wakf Tribunal could not have passed the impugned order.
In the decision, Salem Mohammedpura Parimala Sunnath Jammth Masjid Committee vs. P.A.Kareem, reported in 2008 (2) CTC 492 =
2008-3-L.W.174, this Court has held that the Wakf Act has created certain rights on person in charge of administering the wakf and its properties
and obligates such person to do certain functions towards the betterment of the wakf and mere conferment of special jurisdiction on certain specific
subject matters under the Wakf Act, do not exclude the jurisdiction of Civil Court for enforcement of civil rights. This Court has further held that
the intention of the legislature is not intended to take away the powers of the Civil Court where no remedy is provided under the Wakf Act.
Therefore, the Wakf Tribunal, considering the interest of justice should judiciously exercise its power.
In the instant case, earlier application was filed by Mr.Abdul Rasheed, father of the revision petitioner before the Wakf Board, the second
respondent herein. Similar Original Application is subsequently filed by the first respondent, stating himself as General Secretary, Haarath Syed
Thurabuddeen Sah Qadariyul Chishthy Dargah, Advisory Committee. There is no evidence to show that the aforesaid Advisory Committee was
recognised by the Tamil Nadu Wakf Board. When similar earlier application is pending before the second respondent Wakf Board, which is
directly dealing with the matters relating to Wakf Board and its administration and was brought to the notice, without sufficient legal evidence, the
Wakf Tribunal cannot ignore the powers of the Wakf Board, which is directly dealing with the matter and pass an order, totally adverse to the
evidence. As the finding of the Wakf Tribunal is against the evidence available on record, this Court is of the view that the findings is perverse and
accordingly, the impugned order is liable to be set aside. In the result, considering the facts and circumstances, this Civil Revision Petition is
allowed and the impugned order is set aside. Consequently, connected miscellaneous petition is closed. However, it is made clear that the second
respondent, Tamil Nadu Wakf Board is at liberty to decide the application pending before the Wakf Board, according to law as expeditiously as
possible. No costs.