Syed Peer Shah Mohideen Kadiri vs The Tamil Nadu Wakf Board and others

Ramaprasada Rao, J.—The controversy arose obviously over a misdescription or an irregular prayer sought for by the Tamil Nadu Wakf

Board when it filed I.A. No. 417/72 in O.S. No. 26/48 on the file of the Sub Court, Tirunelveli. An application under S.151 C.P.C., was filed by

the first respondent Wakf Board for issuing directions to the effect that a scheme earlier framed for Mohideen Andavar Pallivasal at Pottalpudur

shall be deemed to be the scheme framed by the State Wakf Board in view of Central Act 29 of 1954, to enable it to manage and administer the

same in their own right and in effect to substitute themselves as the authors of the scheme in the place of the Civil Court which originally framed it.

This application was opposed by the petitioner amongst others on many grounds. The most important of the grounds of objections is that the Wakf

Board cannot substitute itself in the place of the Civil Court as is sought for in the petition and, therefore its application was not maintainable. The

lower Court went into the question, referred to certain well-known decisions of our Court and allowed the application of the Board by substituting

the words ""Tamil Nadu Wakf Board"" in the place of ""the Subordinate Judge, Tirunelveli"". It, however, accepted the stand of the Board that as and

from the date of the passing of the Wakf Act 1954, they are the persons who are competent and indeed proper persons to administer the scheme

in their own right. As already stated, whilst accepting the Board''s contention, the learned Subordinate Judge traversed the ground, which was not

necessary for him to do so, and in the result its decision has come up for challenge by the petitioner before me. Mr. Rajagopalan, learned counsel

for the petitioner, whilst conceding that on and after the passing of the Wakf Act 1954 it is the State Wakf Beard which should take over the day

to day administration and management of all the Wakfs in the State including Mohideen Andavar Pallivasal at Pottalpudur , contended that the

State Wakf Board could not claim that they should be substituted for a Civil Court and they should be deemed to be authors of the scheme under

the Act and they should be given the powers to administer it. In that context, Mr. Sattar Sayeed for the Board fairly concedes that it was never the

intention of the Board to substitute themselves in the place of the Civil Court, but what they bona fide and earnestly asked for, in order to

implement the objects of the special enactment, Central Act 29 of 1954, was to take over the administration of the Pallivasal instead of

approaching the Court from time to time in the matter of its routine matters, such as management, appointment of trustees, etc., and to conduct the

affairs of the Pallivasal in accordance with the various clauses in the scheme as framed by the Civil Court earlier to the Act.

It is in this way that the controversy has thus been considerably watered down. There are three judgments of our Court which practically

conclude the matter. The first one is reported in C.S. Peeran Sahib Vs. The State Wakf Board, Venkatadri, J. has observed that once a special

Act comes into force for the purpose of securing better administration and supervision of Wakf properties and concurrently creates an obligation

and enforces the performance in a specified manner, the rule is that the performance cannot be enforced in any other manner. This is based on the

well-known principle that the special excludes the general and also the maxim that a special prescription, which has been made to exercise a

power, cannot be substituted by another one not provided for by an enactment or under the common law. This judgment of Venkatadri, J., was

approved by N.S. Ramaswami, J. in Application No. 674 of 1971 in C.S. No. 307 of 1934 (Special Officer for Wakfs, Madras v. S.B.

Fazluddin and others,) Alagiriswami, J. again sitting on the original side in Application No. 1078 and 1079 of 1968 in C.S. No. 159/1931

(Mohamed Ziauddin v. Noorulla Sahib) reiterated the said principle in an exhaustive, reasoning given by him. In my view, the decision of Ismail, J.,

in Paleni Muslim Dharma Paripalana Sangam v. The Tamil Nadu Wakf Board 88 L.W. 2 does not depart from the ratio of pronouncements

already referred to. It is, therefore, clear when that scheme has been framed by a Civil Court prior to the passing of the Wakf Act, then it shall

prevail and shall be taken as the basis by the Wakf Board for administering a particular Wakf for which that scheme has been framed. It is open to

the Wakf Board to apply to the Civil Court for modifying the scheme if an occasion or necessity arises. But it cannot on its own volition or through

the intervention of Courts substitute itself in the place of the Civil Court and take upon itself the authorship of that scheme. Once the scheme has

been framed prior to the Act, it is only the Civil Court which can modify it and it can do so when it is edited upon by the Wakf Board. The

application in the instant case was, as I characterised, an innocuous one, for the Board wanted directions that they should be permitted, after the

coming into force of the Act on 29th January 1954, to administer the Wakf and manage the Wakf properties. If they stopped there, there would

have bean no difficulty. But they sought for a relief that they should be substituted in the place of the Civil Court as the framers of the scheme. This

was granted by the learned Subordinate Judge. This is obviously a wrong appreciation of the law on the subject. There cannot be a substitution of

the Wakf Board in the place of the Civil Court in matters where schemes have already been framed by the Civil Court and if such schemes were

enforced prior to the passing of Act 29 of 1954. Excepting for the modification of that direction given by the Court below, whereby the Board was

allowed to be substituted for the Subordinate Judge of Tirunelveli, the orders of the Court below shall stand. The result is that the Wakf Board is to

be in charge of the day to day administration and management of the trust, such an appointment of trustees, etc., in accordance with the scheme

and if they deem fit and if an occasion arises, they are at liberty to approach the Civil Court for amendment of the scheme as the situation requires.

No costs.