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T. Raja, J.—The writ Petitioner-Haji B.Pakkir Mohammed, whois the president of Madrasa-E-Merjul-Uloom @ IslamiaKalvi Sangam at Dharmapuri (hereinafter referred to as''Sangam''), has filed W.P. No. 21750 of 2010, questioningthe Resolution, dated 06.07.2010, of the Chairman ofthe Wakf Board, (communicated to the Petitioner on19.07.2010), whereby, the Application, dated31.05.2005, submitted by the Petitioner-Sangam, withthe claim that the Petitioner/sangam is not a wakf,came to be rejected, based on the earlier order/Schemeframed by the Special Officer of the Tamil Nadu Wakf Board bearing R.C. No. 3598/85/B2/Dhar/85, dated22.09.1992, thereby, the Islamia Kalvi sangam wasamalgamated along with (a) Mohamed Ali Memorial Club, (b) Madrasa Mehrajul Uloom, and (c) Masjid-e-Bilal asone Single Wakf, called "Moulana Mohamed Ali MunnetraSangam". Hence, both the proceedings, dated 06.07.2010and 22.02.1992, are sought to be quashed.
In W.P. No. 15177 of 2010, the very samePetitioner challenges the proceedings of the WakfBoard, dated 29.04.2010, bearing Na.Ka. No. 3598/85A6/Dharmapuri (S. No. 12, Resolution No. 80/10) and theconsequential proceedings, dated 03.06.2010, of theChief Executive Officer, TN Wakf Board, in and by whichthe Board assumed direct Management of the Sangam aswell as the other three wakfs in terms of what isprovided u/s 65 of the Wakf Act, 1995, byappointing the Superintendent of Salem Wakf as theAdministrative Officer and calling upon the erstwhileManagements including the Petitioner-Sangam to renderthe accounts, etc.
One Mr. D.S.Khalandar, Secretary of the Sangam/Society, has filed CRP (NPD) No. 3713 of 2010,seeking to set aside the judgment and decree, dated23.03.2010, passed by the learned Principal SubordinateJudge, Krishnagiri, in W.O.S. No. 90 of 2006, whereby,the Plaintiff-Sangam''s prayer to exclude it from thepurview of wakf and to grant injunction, restrainingthe Wakf Board from interfering with the Management ofthe Sangam, was negatived.
Since the above two Writ Petitions and theCivil Revision Petition are interconnected and theissues arising therein need a common consideration, thecases are heard together and finally, disposed of bythis Common Order.
Certain crucial facts necessary to understandthe nature of issues arising in the cases are brieflydetailed below, for better appreciation:
Mohammed Ali Memorial Club Wakf, Dharmapuri, aSurveyed and Notified Wakf vide Gazette Sl. No. 41 ofDharmapuri, was initially managed by a Committee headed by one Janab D.S.Naseer Ahamed. The land belonging tothe said Wakf was leased out to the Petitioner-Sangam,a Society registered under the Societies RegistrationAct. On the leased land, the Society constructed shopsand buildings and, there is also an Arabic Collegecalled Madrasa-e-Mehrajul Uloom under the management ofthe Society.
It is the case of the Sangam-Society that itwas established with four objects viz., to impartreligious education, found Madrasas, help the needy topursue studies in Medicine and Engineering and to takepart in cultural activities and, in order to achievethose objectives, the Society has been raising fundsthrough subscription from its members, donation fromphilanthropists, rental income from the leaseholdproperties etc. It is the further case of the Sangamthat the Society has a General Body, ExecutiveCommittee and Office Bearers and it is periodicallysubmitting the Returns with the Registrar of the Co-operative Societies.
While so, on 16.03.1992, the Government of Tamil Nadu issued a Gazette Notification in G.O. No. 163,stating that the State Government had taken a policydecision to take over the management of the Tamil NaduWakf Board, and consequently, appointed a SpecialOfficer for a period of one year and the said SpecialOfficer went exhaustively examining the acts done bythe previous Managements. In the matter of the Wakf inquestion, the Special Officer, after receivingrepresentations from the Society, conducted a detailedenquiry and, after hearing the parties including theOffice Bearers of the Society, ultimately passed theproceedings, dated 22.09.1992, inRC. No. 3598/B2/Dhar/85, amalgamating Mohammed AliMemorial Club and Masjid-e-Bilal as well as the Madrasarun by the Society viz., Merjaul Uloom, and the IslamiaKalvi Sangam which is also run by the Society, togetheras one Single Wakf called ''Moulana Mohammed AliMunnetra Sangam'' and accordingly, framed a Scheme anddirected the said amalgamated Wakf to be registeredwith the Tamil Nadu Wakf Board. In accordance with thesame, the Board constituted a General Body and selected a Committee headed by Janab J.Basheer Ahamed and approved the same.
Questioning the Scheme, dated 22.02.1992, a writpetition in W.P. No. 19202 of 1992 was filed by oneS.P.Bava and another, and the said petition wasdismissed by this Court on 11.02.2000 for want ofprosecution.
One of the interested persons by name A.MohammadArab also filed a writ petition in W.P. No. 17457 of1992, challenging the Scheme framed by the SpecialOfficer and, this Court, by order dated 23.11.2000,declined to interfere with the scheme, however,permitted the Petitioner to institute a suit before theTribunal and agitate his right in the manner known tolaw as provided u/s 32(3) of the Wakf Act,1995.
The Petitioner-Sangam filed a suit in O.S. No. 6of 2005 before the Wakf Board Tribunal (Sub Court),Krishnagiri, seeking to declare the Scheme as null andvoid and the said suit was dismissed for default. TheInterlocutory Application filed to restore the suit was also returned for want of court fee in the Plaint.When such return was challenged before this Court byway of CRP (PD) No. 394 of 2005, by order dated29.08.2006, the plea was negatived holding that theproper remedy open for the Sangam is to re-present theapplication after complying with the defects pointedout in the application.
On 31.05.2005, the Petitioner made arepresentation to the Wakf Board, seeking clarificationand to conduct an enquiry u/s 40 and 70 of theWakf Act. As the representation yielded No. outcome, awrit petition was filed in W.P. No. 19959 of 2005,wherein, by order dated 20.06.2005, this Court issued adirection to the Wakf Board to dispose of therepresentation within 12 weeks.
On 06.04.2006, based on the Scheme, dated22.09.1992, the Wakf Board passed a Resolution toappoint a 9 Member Committee for the administration ofthe amalgamated wakf for a period of three years.Challenging the same, the Sangam filed W.P. No. 18240 of2006 and, on 17.06.2006, obtained an order of interim injunction in the Miscellaneous petition filed viz., M.P. No. 1 of 2006 in W.P.18240 of 2006. On 15.02.2010,the main Writ Petition came to be dismissed asinfructuous as the tenure of the committee was over byefflux of time.
Another suit filed on behalf of the Society byone Sardar in W.O.S. No. 102 of 2005 on the file of thePrincipal Sub Judge, Krishnagiri, questioning theScheme was dismissed on 23.03.2010.
By representation, dated 29.04.2010, thePetitioner addressed the Tamil Nadu Wakf Board, seekingnecessary action on the earlier representation dated31.05.2005.
By proceedings of the Board, dated 06.07.2010,the representation/application, dated 31.05.2005, ofthe Sangam/Society, seeking the Board to treat theSangam and its properties as a separate entity totallydifferent from the amalgamated wakf was considered interms of the orders, dated 20.06.2005, passed in W.P. No. 19959 of 2005, and ultimately rejected, leading tofiling of W.P. No. 21750 of 2010, questioning not only the proceedings dated 06.07.2010 but also the Scheme ofthe year 1992 said to have been framed on consent byall the parties including the Sangam. The proceedingsof the Chief Executive Officer of the Board dated03.06.2010 with the annexure proceedings, dated29.04.2010, informing appointment of an AdministrativeOfficer and seeking rendition of accounts from theSangam before the said Officer, are challenged in W.P. No. 15177 of 2000.
The Society also filed W.O.S. No. 90 of 2006before the Principal Subordinate Court, Krishnagiri,against the amalgamation and such suit having beendismissed on 23.03.2010, challenging the same, CRP(NPD) No. 3713 of 2010 came to be filed by the Secretaryof the Society.
Mr. Haja Naziruddin, learned Counsel appearingfor the Society in all the cases, in an arduous attemptto establish the case and cause of the Society, at thefirst instance, would artfully submit that the Society,being a different and separate entity falling under the Societies Registration Act, its properties cannot bebrought within the ambit of ''Wakf'' much less theAmalgamated Wakf-Moulana Muhammad Ali Munnetra Sangamfor the simple reason that a Wakf is exclusivelydedicated to Allah, the Almighty, forever and suchcharacteristic can never be fitted to a Society or theproperties connected thereto. Slyly, he endeavoured tomake out a point that, at best, the Madrasa or Masjid,which is constructed and in existence for prayers andreligious purposes, can alone be brought within therealm of wakf and not the Society itself and its otherproperties shown to be connected with the Wakf.Referring to Section 3(r) of the Wakf Act, he wouldargue that inasmuch as none of the ingredients in thesaid provision is established to be present in the caseof the Society, it should be held that the Wakf Boardcan never have any supervisory power or control overthe affairs or properties of the society. According tohim, tenancy in respect of land substantiates theprivity of land and tenant relationship between theMohamed Ali Memorial Club Wakf and the Petitioner society respectively. Therefore, when the privateSociety has nothing to do with the Wakf, the wholescheme, dated 22.09.1992, derived by the SpecialOfficer, vainly stretching its brinks to envelope theSociety, on the face of it, is not legally sustainable.Further, it is apparent that the mandatory procedureoutlined in Sections 4, 5, 6 and 27 of the Act has notbeen scrupulously adhered to, which aspect also, goesto the root of the matter. In other words, unless andotherwise, as provided either by Old Wakf Act of theyear 1954 or the New Act, 1995, survey & Notificationunder Sections-4, 5 & 6 are made, which course ismandatory, cause of action in filing a suit againstsuch notification arose u/s 6 of the Actwithin one year from the date of publication of thelist of wakf u/s 5(2) of the Act. In thepresent case, after framing of the scheme by theSpecial Officer, there was No. registration at all;therefore, the Petitioner-society can never be termedas a ''wakf'' within the definition as given inSection 3(r) of the Wakf Act, 1955.
4-A. Referring to a case law reported in Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and Others, , he submits that the Commissioner of Wakf isempowered to make a survey of existing Wakf and itsproperties and report to Government, whereupon, thestate Government will publish the same in Gazette;whereas, in the present case, till date, such exercisewas not taken up and the clubbed wakf was nevernotified even after the amalgamation.
4-B. Assailing the Scheme, dated 22.09.1992, thelearned Counsel, by stating that the Petitioner isstill entitled to challenge the original scheme itself,would comment that the same Scheme, after brought onrecord, was never acted upon. He relied upon a Judgmentof the Apex Court in Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs. etc. etc., wherein it has been held thatwhenever dispute arose whether the property is wakfproperty or not, the Board must follow the procedure asrequired u/s 4, 5, 6 and 27 of the Act and straight away, the Board cannot institute a suit fordeclaration, asserting title over the property. Sincethe Petitioner is a society duly registered under theSocieties Registration Act and governed by its own by-laws, in terms of Section 20 of the TN SocietiesRegistration Act, legal proceedings by or against thePetitioner-society is maintainable. Mohamed AliMemorial Club was surveyed and it is a notified wakf interms of Section 4, 5 and 6 of the Act and, in the landleased out by the Club to the Petitioner-society,buildings were constructed to run the office to fulfillthe objects for which the Society was registered.Inasmuch as the Society is holding the leaseholdinterest in land on payment of monthly rent, at anyrate, the rights could be determined only in the manneras contemplated u/s 111 of the Transfer ofProperty Act. Since admittedly, the Petitioner is not awakf, dedicated permanently in the name of Allah, theAlmighty, indisputably, none of the elements outlinedin Section 3(r) of the Act, 1995, for constitution of aWakf is present in the Petitioner/society. Therefore, it is again reiterated that the Scheme itself increating an amalgamated wakf by pointlessly includingthe Petitioner-society as one of the wakfs is notlegally sustainable and therefore, all theconsequential proceedings that are under challenge inthe writ petitions are liable to be quashed.
4-C. Coming to the Civil Revision Petition,wherein the order, dated 23.03.2010, passed by thePrincipal Sub Court in WOS No. 90 of 2006, in and bywhich, the Petitioner''s prayer for declaration andinterim injunction came to be rejected, it is submittedthat the said order is liable to be interfered with onthe sole ground that the trial court has miserablyfailed to understand the distinction between a Societyregistered under the Societies Registration Act and aWakf governed by the Wakf Act.
Per contra, Mr. Haja Mohideen Gisthi, learnedcounsel appearing for the Respondents/Wakf Board inboth the writ petitions, would submit that the writ petitions are liable to be dismissed at the thresholdfor the simple reasons that, as against the assumptionof direct Management by the Wakf Board, the Petitioner,by way of Appeal u/s 65(2) of the Wakf Act,1995, has already approached the State Government on09.07.2010; therefore, the hastiness with which thePetitioner has approached this Court should becondemned severely and, even otherwise, the issuesrevolving around the Scheme, now sought to be raisedbefore this Court, had already been decided not only inthe civil proceedings with categorical findings both onfactual and legal aspects but also in the earlier WritPetition in W.P. No. 17457 of 1992, wherein, by orderdated 23.11.2000, this Court had declined to interferewith the Scheme itself, and therefore, any endeavour bythis Court to consider the case of the Petitioner wouldonly amount to re-opening of the issue of amalgamationwhich was already settled in the respective earlierproceedings to which the Petitioner was also a party.
In line with the above submission, Mr. V.Lakshmi Narayanan, learned Counsel appearing forthe Wakf Board/R10 in the Civil Revision Petition,would submit that the Petitioner has No. locus standi toseek for a declaration in their favour in the light ofthe clear fact that the Scheme was not a one passedbehind the back of the Petitioner Sangam. He took meto the Scheme to highlight that it was only after theconsent of both sides including the Society, the Schemewas framed to amalgamate the two wings of thePetitioner-society viz., Madrasa-e-Mehrajul Uloom andIslamia Kalvi Sangam along with Mohammed Ali MemorialClub and Masjid-e-Bilal, as a single wakf called''Moulana Muhammad Ali Munnetra Sangam". When theconsent expressed by the Petitioner-society forimplementation of the scheme is borne out by recordsand also apparent from the very Scheme itself, hardlyone can contend that the Scheme will not bind thesociety. He points out that the Writ Petition filed inWP No. 19202 of 1992 by one Bawa, questioning theScheme, came to be dismissed for non-prosecution. Inthe subsequent writ petition filed by one A.Moahmmed Arab in W.P. No. 17457 of 1992, the plea to interferewith the Scheme came to be negatived by order dated23.11.2000, however, in the light of Section 32(3) ofthe Act, 1955 which provides that where the Board hassettled any scheme of management under Clause (d) orgiven any direction under Clause (3) of Sub-section(2), any person interested in the wakf or affected bysuch settlement or direction may institute a suit in aTribunal for setting aside such settlement ordirections and the decision of the Tribunal thereonshall be final, liberty was granted to the Petitionerto institute a suit before the Tribunal and agitate hisright in a manner known to law. But, the Petitioner didnot immediately act upon the liberty granted by thisCourt on 23.11.2000 to approach the Wakf Tribunal underSection 32(3) of the Act. The suit filed in O.S. No. 6of 2005 was dismissed and the restoration applicationwas also returned for want of court fee in the plaint.The said return challenged by way of CRP PD No. 394 of2005 also came to be dismissed. Another suit filed byone Sardar, challenging the Scheme, in WOS No. 102 of 2005 on the file of Principal Sub Court, Krishnagiri,also ended in dismissal by judgment dated 23.03.2010 onclear and sound reasonings. The order, dated23.03.2010, passed in WOS No. 90 of 2006, challenged bythe Sangam in the Civil Revision Petition, is alsobased on clear-cut findings on both factual and legalaspects which do not call for any interference. Hence,the prayer of the Sangam does not deserve anyconsideration at all.
Heard Mr. S.V.Duraisolaimalai, learnedAdditional Government Pleader appearing for theofficial Respondents, and Mr. T.Velumani andMr. R.Sankarappan, learned Counsels appearing for therest of the Respondents.
This Court carefully considered the rivalsubmissions advanced on either side. The crucialissues required to be dealt with are,
a) whether the Petitioner-Sangam isjustified in challenging the Scheme, dated 22.09.1992, which came into existence onlysubsequent to the consent, also given by themembers of the Petitioner-Sangam itself andtheir Counsel before the Special Officer ofthe Wakf Board, and the consequentialproceedings arising there-from?
b) when the validity of the Schemeitself has been decided in favour of the WakfBoard in a couple of litigations before theCivil Court and a definite finding on factsand legal aspects having been given,upholding the validity of the scheme; and in W.P. No. 17457 of 1997 also, while decidingthe validity of the scheme, this Courtdeclined to accept the plea of the sangam,whether the principles of res judicataoperate against the Petitioner so as toreject their case in the present WritPetitions?
c) whether the writ petitions aremaintainable having regard to pendency of thestatutory appeal filed by the Society beforethe Government for a decision on similarissue?
d) Even otherwise, whether the sangam can legally withhold and retain theadministration of the properties which arepart and parcel of a Wakf, dedicatedexclusively and perpetually for the sake ofAllah, the Almighty, on the wispy ground thatonce the wakf property given under lease isused for a particular purpose by a Societyregistered under the Societies registrationAct, such property would lose its originalcharacter and would forever remain with thelessee/society?
e) Whether the general law viz.,Societies Registration Act, will over-ridethe special legislation-Wakf Act in thematters relating to administration,supervision and management of wakfproperties.
At the first instance, it is useful to refer to Section 3(r) of the Wakf Act, 1955, defining the term "wakf" thus:
" wakf" means the permanentdedication by a person professing Islam,of any movable or immovable property forany purpose recognised by the Muslim law as pious, religious or charitable and includes-
(i) a wakf by user but such wakfshall not cease to be a wakf by reasononly of the user having ceasedirrespective of the period of such cesser;
(ii) " grants", including mashrut-ul-khidmat for any purpose recognised bythe Muslim law as pious, religious orcharitable; and
(iii) a wakf-alal-aulad to theextent to which the property is dedicatedfor any purpose recognised by Muslim lawas pious, religious or charitable, and"wakf" means any Person making suchdedication;
A mere reading of the above provision makes it clear that the dedication of the movable or immovable property made by a Muslim for a religious, pious or charitable purpose should be permanent and perpetual in character. As regards maintenance of wakfs, duty is obligated on the Wakf Board, particularly in terms of Section 32 to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the object and for the purpose for which such wakfs were created or intended.
In regard to the above issues, it would beof much relevance to look at the background in whichthe scheme came to be framed.
The Government of Tamil Nadu, by anExtraordinary Gazette Notification, dated 16.03.1992,noted that the Tamil Nadu Wakf Board was unable toperform and persistently made default in theperformance of the duties on it by the Wakf Act andthat the then members of the Wakf Board had committedserious irregularities in the management of theproperties under the control of the Board. Consideringthe continuation of the then Board as detrimental tothe interest and objects of the wakfs, the Governmenttook a policy decision to take over the Board and, inorder to secure proper management, appointed a SpecialOfficer who was given the powers to perform the dutiesand functions of the Board for a prescribed period. Inrespect of Mohamed Ali Memorial Club Wakf, Dharmapuri, which is admittedly, a Notified Wakf (vide G.S. No. 41of Dharmapuri District) from whom the Sangam took theland on lease to run Madrasa-e-Mehrajul Uloom and toconstruct buildings for commercial purposes, theSpecial Officer had to consider a rival claim over themanagement of the Mohammed Ali Memorial Club Wakf andthe Madrasa. In the proceedings conducted by theSpecial Officer, the other side made it clear that thewakf properties enjoyed under lease by the Societyshould be clearly identified in its original form, andultimately, both sides submitted their respective draftschemes and consented for clubbing of the Madrasa andthe Kalvi Sangam of the Society with Mohammed AliMemorial Club and Masjid-e-Bilal, together as "MoulanaMohamed Ali Munnetra Sangam". The relevant portion ofthe proceedings dated, 22.09.1992 inRC.3598/B2/Dhar/85, depicting the fact that the Societyconsented for passing of the Scheme, is appropriate tobe quoted below:
... The draft schemesubmitted by the other party JanabS.P.Bava Sahib was received on 7.9.92. Both the draft schemes submitted by the both the partieswere examined on 22.9.92 in the presence of the respective counselsand their parties. Both the counselshave agreed to have all the wakfsnamely 1)Mohamed Ali Memorial Club,2)Madrasa Mehrazul Uloom, 3?Masjeed-e-Bilal and 4) Islamia Kalvi Sangamas one single Wakf in the name of"Moulana Mohamed Ali Munetra Sangam".
The scheme will be in forcefrom 22.9.92 and the wakf and all theproperties of all the above wakfsshould be registered with the TamilNadu Wakf board in the name of"Moulana Mohamed Ali Munetra Sangam",Dharmapuri as agreed by both theparties and their counsels before thespecial officer, Tamil Nadu WakfBoard, Madras.
It could be seen that, Bava Sahib, contrarily filed W.P. No. 19202 of 1992 questioning the Scheme despite his consent and assent for the Scheme before the Special Officer, as noted above. Anyhow, the proceedings of the Special Officer would make it clear that the Society/opponent also agreed for the amalgamation of the wakfs.
Interestingly, when the Scheme framed with consent, came to be questioned before the Civil Court and the question was deeply goneinto in WOS Nos. 102 of 2005 filed by Sardar on behalfof the Society, a consenting party to the Scheme beforethe Special Officer, as well as in W.O.S. No. 90 of 2006filed by the Secretary of the Society, the Sub Courtcategorically held that, in terms of Section 3(r) ofthe Wakf Act, 1955, once a Wakf is always a Wakf and itcannot be altered and further, the wakf once createdcannot be ceased as a wakf. As to the earlier suitsfiled questioning the Scheme and the actualcharacteristic of the property sought to be retained bythe Society and on the disputed fact regarding theconsent accorded for the scheme by the Society itself(Plaintiff before the trial court), the trial court, in W.O.S. No. 102 of 2005, held and commented as follows:
... those who objected thescheme preferred separate suits O.S.37/01O.S.142/01 O.S.6/05. All the suits have been ended in dismissal. Now the nextbatch legal battle by this Plaintiff inindividual capacity as O.S.102/05 andanother suit by another Secretary in O.S. No. 90/06. THE BASIC and PRIMARY WAKF IS THE MOHAMMED ALI MEMORIAL CLUB THAT ITSELF WAS RECOGNISED AS A WAKF and ITWAS NOTIFIED IN THE OFFICIAL GAZETTE. THEPLAINTIFF HIMSELF ADMITTED THE SAME INPARA No. 5 of THE PLAINT. But he hasstated that the above wakf was registeredunder the Societies Registration Act inthe year 1972. As per the Section 3 ofthe Wakf Act once wakf is always wakf.It cannot be revoked, it cannot bealtered and also the wakf once createdcannot be ceased as a wakf. THE ENTIRE OTHER THREE WAKFS ALSO CREATED IN THE PRIMARY WAKF PROPERTY. HENCE DURINGENQUIRY ALL THE MEMBERS ADMITTED TOFORM A NEW SCHEME FOR EFFECTIVE ADMINISTRATION. These are the previoushistory of the so called society. Butthe Plaintiff completely suppressing the above said fact come this Court with prayer for declarat ion and injunction....
Even regarding the maintainability of the suit in question itself, the following observation was made:
... As per Section 85 of theWakf Act 1995, the civil court is barredto grant the relief prayed for by thePlaintiff. The only course open to thePlaintiff is to agitate the matter beforethe wakf Tribunal u/s 32 Clause 3 of thewakf Act. Hence the suit is as framed isnot maintainable as per Section 85 of thewakf Act 1995 and the Plaintiff is alsohas No. locus standi in his individualcapacity to file the suit...
From the above order of the Court below, many crucial aspects come to light viz.,
a) Three earlier suits filed inthe first round of legal battle,questioning the Scheme, were dismissed.
b) Admission of the society aboutthe nature and character of theproperties in being part and parcel ofthe nucleus-wakf was recorded based onfacts and evidence.
c) Even the case of the societyitself before the civil court was thatthe property in question is originally awakf property.
d) Not only the properties leasedout to the Society but also the Club andthe Masjid are the part and parcel of thewakf.
e) Further, all the partiesincluding the Society admitted to form a new scheme effective (dated 22.09.1992) administration of for the amalgamated wakf.
f) the Society was guilty suppression of facts before court.
Therefore, in the light of the clear and categoricfindings on the nature of the property and the factthat the properties enjoyed by the Society can never bedetached from the nucleus/wakf, the Society has No. caseto succeed at all.
Moreover, apart from the fact that theissues having already been decided in favour of theWakf Board by the Civil Court, this Court also, whiledeciding W.P. No. 17457 of 1992, filed by one Mohammed
Arab, questioning the Scheme dated 22.09.1992, declinedto interfere with the scheme holding that the only course available to the Petitioner was to approach theTribunal u/s 32(3) of the Wakf Act.Therefore, despite the adjudication at the hands of theCivil Court as well as this Court on the core issue,the Petitioner has very boldly approached this Court tochallenge the very Scheme itself and the consequentialproceedings arising there-from. When it is establishedbeyond doubt that the Scheme itself has been framedonly based on the consent of the Society to go foramalgamation of the wakfs and various crucial issueswhich have direct bearing on the matter-in-issue havingbeen canvassed and decided already, it is veryunfortunate that the Society has very daringlyapproached this Court and the vain exercise taken uponis nothing but an abuse of process of court. Therefore,there is No. difficulty for this Court to hold that thewrit petitions are struck by the principles of resjudicata and even on merits, they deserve dismissal.The settled legal position is that a judicial decisionis deemed final when it leaves nothing to be judiciallydetermined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent recission, review or modification by the Judicial Forum which pronounced it Ram Chandra Singh Vs. Savitri Devi and Others, . Emphasising the point, in Swamy Atmananda and Others Vs. Sri Ramakrishna Tapovanam and Others, , the Apex Court observed thus:
The object and purport ofprinciple of res judicata as containedin Section 11 of the Code of CivilProcedure is to uphold the rule ofconclusiveness of judgment, as to thepoints decided earlier of fact, or oflaw, or of fact and law, in everysubsequent suit between the sameparties. Once the matter which was thesubject-matter of lis stood determinedby a competent court, No. partythereafter can be permitted to reopenit in a subsequent litigation. Such arule was brought into the statute bookwith a view to bring the litigation toan end so that the other side may notbe put to harassment.
The principle of res judicataenvisages that a judgment of court ofconcurrent jurisdiction directly uponthe point would create a bar asregards a plea between the sameparties upon some other matterdirectly in question in another court, where the said plea seeks to raiseafresh the very point that wasdetermined in the earlier judgment.
In the same line, in Pandit Ishwardas Vs. State of Madhya Pradesh and Others, , the Apex Court held thus:
In order to sustain the pleaof res judicata it is not necessarythat all the parties to the twolitigations must be common. All thatis necessary is that the issue shouldbe between the same parties or betweenparties under whom they or any of themclaim.
Applicability of the principles of res judicta to writ proceedings as well, the Apex Court, in Devilal v. Sales Tax Officer (1965 AIR 1150), ruled thus:
As we have alreadymentioned, though the courts dealingwith the questions of theinfringement of fundamental rightsmust consistently endeavor to sustainthe said rights and should strikedown their unconstitutional invasion,it would not be right to ignore theprinciple of res judicata altogetherin dealing with writ petitions filedby citizens alleging thecontravention of their fundamentalrights.
Further, in K.A. Paul and Others Vs. Taluk Land Board, Alathur and Others, , it is categorically held that the principle of res judicatais also applicable to the writ proceedings. In thepresent writ petitions also, since the core issue hasalready been decided by this Court as stated already,undoubtedly, they are struck by operation of theprinciples of res judicata.
Moreover, there is also another embargo inentertaining the writ petitions, for, admittedly, thePetitioner-society has already filed an appeal underSection 65(2) of the Wakf Act as against one of theimpugned orders, dated 29.04.2010. In this regard, itis pertinent to point out that, in a matter relating towakf, where parties resorted to writ jurisdictioninstead of approaching the Wakf Tribunal, the FirstBench of this Court, in its decision in I. Salam Khan Vs. The Tamil Nadu Wakf Board and Others, ,deprecated such practice by observing thus:
No. doubt, alternative remedyis not an absolute bar to the filing ofwrit petitions, but at the same time it iswell settled that writ jurisdiction is discretionary jurisdiction and when thereis an alternative remedy, ordinarily aparty must resort to that remedy firstbefore approaching this Court.Entertaining writ petitions straight awaywithout insisting that a party shouldfirst avail of the alternative remedy isan over liberal approach which has causedimmense difficulties to the High Courts inthe country because they have added to thehuge arrears. The Courts have alreadybecome overburdened by this over liberalapproach instead of following the settledlegal principle that a writ petitionshould ordinarily be dismissed if there isan alternative remedy. The High Courts inIndia are already tottering and reelingunder the burden of massive arrears whichhave flooded the dockets of the Court, andsuch kind of over liberal approach hasonly multiplied this problem manifold. Ifthis approach is further continued a timewill surly come when the High Courts willfind it impossible to function. All thishas happened because unfortunately someCourts have departed from well-settledlegal principles.
In the same line, again, the First Bench rejected the Writ Appeal vide decision reported in Mukram Sherif Vs. Moinudeen Sheriff and The Tamil Nadu Wakf Board, . Thatbeing so, coming to the present case, the Petitionersociety, going a step ahead, not only resorted to theremedy provided under the Statute but at the same timealso approached this Court invoking its writjurisdiction, which practice should never beencouraged. Therefore, on this ground also, the writpetitions are liable to be rejected.
Even otherwise, coming to the shiftyargument of the learned Counsel appearing for thePetitioner that at best, the Mosque/Madrasa alone canbe excluded from the society, however, its other assetsthough originally belonged to Mohammed Ali MemorialClub-wakf, should not be brought within the purview ofthe amalgamated wakf, it is settled law that once aproperty is dedicated to the Almighty under Muslim lawas a Wakf to serve the religion and poor, the characterof such property can never be altered otherwise, for,such dedication is not bound by time as it is perpetual. Hence, as I held above, once a wakf isalways a wakf and it cannot be altered ever.Admittedly, the leased out land belonged to the Wakf.After noticing mismanagement of the Wakf Board at therelevant time, the State Government, in an effort tocorrect the state of affairs and to retrieve the wakfproperties being mishandled, appointed a specialofficer, who, after due enquiry, framed a scheme basedon the consent and agreement of all the parties forclubbing together all the 4 wakfs which form part ofthe Madrasa and Kalvi Sangam run by the Society on theWakf Land. Therefore, what was brought back within therealm of the Wakf was a part of the nucleus and not anew property which was exclusively owned by theSociety. May be, the Society might have doneimprovements over the land. But, those aspects cannotbe now gone into, for the simple reason that only afterdelving into the same in the enquiry, the SpecialOfficer framed the Scheme on agreement by the Societyalso. When part of a wakf property was directed to beretrieved with other components for better administration of the wakf and for which endeavour, theSociety also agreed by accepting the Scheme, asreflected in the proceedings, it is too late in the dayto contend that they did not agree for such course andthey are entitled to have superintendence and controlover a property which, in law, should be dealt withexclusively by the Wakf Board alone.
Another contention raised by the learnedcounsel for the Petitioner is that the order passed bythe Special Officer for registration with the Boardhaving not been complied with, the Petitioner-societycannot be termed as Wakf within the meaning of Section 3(r) of the Wakf Act. The said contention does notfind any force in the light of a decision of theKarnataka High Court reported in AIR 1986 Kar 12,wherein, while considering an identical issue, it washeld thus:
A Masjid or Mosque is a placeof worship of God and it is not capableof human ownership or possession. Itbelongs to God and is dedicated to His Worship. Thus a Masjid or Mosque isWakf as defined in the Act whether it,is registered or not. It is the boundenduty of the authority exercising powerunder Sections 4 and 5 of the Act to enlistMosque or Masjid as Wakf and it is alsothe duty of the Board to register aMosque or Masjid as Wakf. That beingso, it is not possible to hold thatJamia Masjid in question cannot beconsidered to be the Wakf coming underthe purview of the Act, because it isnot registered.
.... Even though the Masjid inquestion is not registered as Wakfunder Chap. IV of the Act, and is notentered either in the Register of Wakfsor in the list of Wakfs or Wakf properties, it being a wakf as definedin the Act, it comes under the purviewof the Act and consequently under thesuperintendence and control of theBoard. It is always open to the Boardto register such Wakfs and enter themin the register of wakfs. Thus, the 1st point is answered against the Petitioner.
(Emphasis Supplied)
Therefore, failure to have the wakf registered asprovided under the Act does not vitiate the Scheme,dt.22.09.1992, since the same came to be effected withthe consent of all the parties including the Society.
Coming to the operation of the SocietiesRegistration Act and that of Wakf Act, it must behighlighted that the former confines itself to theInstitutions referred to therein while the latter, onthe other hand, is an Act to provide for betteradministration and supervision of movable and immovableproperties dedicated permanently to serve the religionand the needy. In other words, the Wakf Act being aSpecial Legislation, it ousts the applicability of thegeneral law particularly in the matters relating toadministration, supervision, management and controlover wakf properties. Therefore, the Petitioner cannottake shelter under the provisions of the SocietiesRegistration Act to illegally gain control over theproperties dedicated in perpetuity as Wakf in the nameof the Almighty.
Coming to the Civil Revision Petition,learned Counsel for the Petitioner vehemently arguedthat the impugned order, dated 23.03.2010, passed bythe Principle Sub Judge, Krishnagiri, in WOS No. 90 of2006, is liable to be interfered with as the TrialCourt grossly erred in overlooking the just case of theSangam that it is a separate entity under the SocietiesRegistration Act and therefore, the properties managedby it can never be termed to be wakf properties.
Even though the Civil Revision Petition isliable to be dismissed on various grounds, suffice itfor this Court to advert to one vital ground.
The suit in question ie., WOS No. 90 of 2006 wasfiled without even issuing the mandatory ''pre-suitnotice'' as contemplated u/s 89 of the WakfAct, 1995. Such mandatory compliance having beenconveniently given a go-bye, resulting in a fataldefect, the suit itself cannot be maintained on file.The provision makes it clear that it imposes upon every civil Court a statutory and unqualified obligation to dismiss the suit if there is non compliance of that provision. A close reading of Section 89 of the Wakf Act, 1995 corresponding to Section 56 in the old Act, to the effect,
Notice of suits by parties against the Board--No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the Plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
would go to show that the provision beginning in a negative sense with the wordings "no suit shall be instituted" is imperative in character regarding issuance of notice of suits. Admittedly, the Petitioner never issued the notice as contemplated in the Wakf Act to set the law in motion. If a suit had been instituted without complying with such vital mandatory requirement, the court would only reject the plaint under Order 7 Rule 11 Code of Civil Procedure. In this regard, it is relevant to quote below the following passage from the ruling reported in Rahmath Bi v. State Wakf Board (AIR 1982 Madras 202):
In Sree Raja Venkata Rangiah Appa Rao Bahadur and Another Vs. The Secretary of State for India in Council and Others, , SundaramChetty J. had occasion to consider thisquestion and the learned judge pointedout that the suit instituted withoutissuing a notice u/s 80 C.P. C.is not maintainable and affirmed theorders of the courts below rejecting theplaint on the ground that notice underSection 80 C.P. C. was not given. Indoing, so, the learned Judge pointed outthat it is No. longer a matter ofdiscretion of the court to hold infavour of the maintainability of a suitin spite of the non-compliance with someof the requisites of Section 80 C.P. C.and that such defects if found to exist,should result in the rejection of the plaint as a whole. Therein, the view hasalso been expressed that non-compliancewith the requisites of Section 80 Code of Civil Procedurewould be covered by 0. 7 Rule 11 (d) Code of Civil ProcedureThis view was affirmed in (Sree Rajah) Venkata Rengiah Appa Rao Bahadur and Others Vs. Secy. of State and Others, . A similar view hasalso been expressed by the Calcutta HighCourt in Jagadish Chandra Deo Vs. Debendra Prosad Bagchi Bahadur and Others, , which had also approved of theview of the Division Bench of theAllahabad High Court in Bachchu Singh v.Secretary of State, ILR (1903) 25 All 187. In Pallarisetti Gotilingam v. Stateof Andhra Pradesh, a suit had beeninstituted without a proper notice underSection 80 C.P. C. and the Plaintiffprayed for permission to withdraw thatsuit with liberty to file a fresh suitand that application was dismissed bythe District Munsif holding that it wasa fatal defect and not a formal defect.In considering the correctness of thatorder, it was pointed out that when itis discovered that there is a non-compliance with the mandatory provisionunder See. 80 C.P. C. the proper course would be to reject the plaint. Thiscourse had also been approved of by theSupreme Court of India in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, . Mitter J. speaking for the courtobserved at p. 446 thus--
No doubt it would be open for acourt not to decide all the issues whichmay arise on the pleadings before it ifit finds that the plaint on the face ofit is barred by any law. If for instancethe Plaintiff''s cause of action isagainst a Government and the plaint doesnot show that notice u/s 80 C.P. C. claiming relief was served in termsof the said section, it would be theduty of the court to reject the plaintrecording an order to that effect withreasons for the order. In such a case,the court should not embark upon a trialof all the issues involved and suchrejection would not preclude thePlaintiff from presenting a fresh plaintin respect of the same cause of action.
Cases where suits -have beeninstituted without the issue of a noticeaccordance with Section 80 Code of Civil Procedure. or section 56 of the Wakf Act, as in the instant case, would thus be causes which wouldfall under Order 7 Rule 11 (d) CPC Areading of the plaint in the suitsinstituted by the Petitioners woulddisclose that an act of the Wakf Boardis challenged in the course of the suitswithout having given the requisitenotice under See. 56 of the Wakf Act andon the face of it, even on thestatements in the plaints, the suitsappear to be barred by the provisions ofthe Wakf Act. It is also necessary torefer to 0. 7 Rule 13 C.P. C. whichdeclares that the rejection of theplaint on any of the grounds under 0. 7 Rule 11 C. p. C. would not preclude thePlaintiff from presenting a fresh plaintin respect of the same cause of action.In view of this safeguard which has beenprovided, No. prejudice whatever will becaused to the Petitioners by rejectionof the plaints presented before thecourt below without issuing a noticeunder Section 56 of the Wakf Act. "
In a recent decision reported in 2010 (4) CTC 516 (The Secretary, Tamil nadu Wakf Board v. Kancheepuram Oili Mohamed-Pettai Labbai Jumma Masjid), this Court categorically held that pre-suit notice is a conditionprecedent and any defect of want of notice goes to theroot of the matter and such defect cannot be viewedlightly, and it was concluded that the suit against theWakf Board in respect of any act purported to be doneby it in pursuance of the Act or Rules framedthereunder is barred unless proper notice is served onthe Board before filing of suit. Inasmuch as there isa gross violation of what is mandated under Section-89 of the Act, the suit itself is rendered nugatory.
While dealing with the suit, the trial courtrecorded the prevaricating evidence of the society''switness regarding the consent given by them foracceptance of the Scheme. On a careful examination ofthe Judgmet of the Trial Court, this Court is of theview that, before negativing the case of the society,all relevant aspects have been deeply delved into andconclusions on facts and law have been reached on thebasis of evidence and sound reasoning and therefore,there is No. scope for interference.
In the light of the foregoing discussion, this Court does not find any valid reason or ground whatsoever to grant the prayers sought for and consequently, both the writ petitions as well as the civil revision petition fail and they are dismissed. No. costs. Connected Miscellaneous Petitions are closed.