Y. Johnba vs Tamil Nadu Wakf Board and Others

Somasundaram, J.—In this writ petition the petitioner prays for the issue of a writ of certiorari to quash the order of the first respondent

dated 23.6.1986 passed in W.A. No. 8 of 1985 (R.C. 9741/AG/74) relating to Khader Pallivasal Iddgah Gori Dakni Jamath, Ramanathapuram.

The facts leading to the filing of the above writ petition are as follows:

Pallivasal Iddgah Gori Dakni Jamath, Ramanathapuram. The said Jamath through its Managing Committee of which the petitioner is the Secretary,

is managing Khader Pallivasal, a mosque at Ramanathapuram and Iddgah Gori Thope, a place where Muslims of Ramanathapuram perform their

two Idd prayers'' (Ramzan and Bakrith prayers) every year. According to the petitioner, the said Iddgah and Khader Pallivasal together remain a

single wakf. The said wakf and its properties including the mosque building and the Iddgah site and trees thereon are managed by the Dakni

Jamath through its Managing Committee for many decades.

The respondents 2 and 3 representing the Iddgah Committee filed W.A. No. 8 of 1985 before the first respondent praying for rectification of

the notification of the year 1959 published in the Gazette and to bifurcate the Iddgah and Khader Pallivasal and to recognise the Iddgah Committee

as Muthav-allis of the Iddgah Wakf of Ramanathapuram on the ground that there was an error in grouping the Iddgah and Khader Pallivasal while

issuing the notification of the year 1950 and that Khader Pallivasal has no right or interest over the Iddgah and its property. The said application

W.A. No. 8 of 1985 was resisted by the respondent in W.A. No. 8 of 1985 contending that Khader Pallivasal and Iddgah Gori Thope constitute

one wakf and is under the management of Dakni Jamath from its inception and that the Wakf Board had notified the same as one wakf in the year

1959 after detailed survey and enquiry. The further case of the respondent in W.A. No. 8 of 1985 is that notification made in 1959 has become

final and that the petitioners in W.A. No. 8 of 1985 have no manner of right over the Iddgah Gori Thope.

The first respondent-Wakf Board, by its order dated 22.6.1986, found that the Iddgah wakf belongs to the Iddgah Committee and not to the

Khader Pallivasal and that the notification issued in 1959 clubbing the Iddgah Gori Thope and Khader Pallivasal is erroneous. The first respondent

further found that the first respondent-Board has ample powers to bifurcate these two wakfs. Consequently the first respondent by the said order

dated 22.6.1986 directed bifurcation of the Iddgah Gori Thope and its properties from Khader Pallivasal and appointed the petitioners in

W.ANo.8 of 1985 as members of the Committee to look after the affairs of the Iddgah Gori Thope. The said order of the first respondent dated

22.6.1986 passed in W.A. No. 8 of 1985 is challenged in this writ petition.

The pro forma report issued by the first respondent with regard to the Iddgah and Khader Pallivasal Wakf on the basis of the register of Wakfs

maintained u/s 26 of the Wakf Act, 1954, hereinafter called the Act, give the following particulars with regard to Iddgah and Khader Pallivasal

Wakf. In the said pro forma report the name of the Wakf is given as Iddgah Khader Pallivasal, Ramanathapuram. The object of the wakf and the

conditions of grant are stated as follows:

The wakf was created by the Muslim of Khader Palli Street, Ramanathapuram for maintaining a mosque in Khader Palli Street and conducting

prayers in it and for maintaining the Idgah tope and putting up pandals for conducting the two Idd prayers.

The particulars of the wakf are given as follows:

Particulars of the Wakf: S. No. Description Extent

L.R. of properties assessment:

13(a) Properties comprised 1. Ramanathapuram about Khader

in the Wakf with title Palli in O. 1 finished masonry

deeds and documents, relat- structure the junction of

ing thereto, description Khader Palli St, and Vanasan

classification, extent Kasi Amman Road,

value of each item. 2. Ramanathapuram

In case of landed property 536/- Rajassoriamadai village

description, extent, classi- limit

fication, whether wet, dry, 3.30 2.2.0

garden, building or shop _______

etc. and the value of each 2.2.0

item. _______

Cesses Rates & Annual Value

Income

-- -- -- 500/-

0-10-8 -- 50/- 1,500/-

___________________________________________

0-10-8 -- 50/- 2,000/-

______________________________________________

In the list of wakfs existing in Ramanathapuram District published in the notification issued in the Fort St. George Gazette dated 22.4.1959thename

of the wakf in question is given as Iddgah and Khader Pallivasal Ramanathapuram and the nature and object of the wakf is given as religious and

charitable to maintain a mosque and Iddgah. Further, in the suit O.S. No. 17 of 1975 on the file of the District Munsif s Court, Ramanathapuram

between the same parties the first respondent has taken the stand that the Iddgah Khader Pallivasal constitute a single wakf and the wakf and its

properties viz., the mosque and the Idgah site are managed by the same Managing Committee.

The case of the respondents 2 and 3 herein is that in the notification issued in the Fort St. George Gazette, dated 22.4.1959 there was an

erroneous clubbing of Iddgah Gori Thope and Khader Pallivasal; that Iddgah and Khader Pallivasal are two distinct wakfs; that they are entitled to

have the Iddgah and its properties bifurcated from Khader Pallivasal and that the first respondent-Board has the power to bifurcate the single wakf

of Iddgah and Khader Pallivasal into two wakfs viz., Iddgah Gori Thope Wakf and Khader Pallivasal Wakf. On the other hand, it is contended by

Mr. Abdul Kalam, learned Counsel for the petitioner that in the notification published in the Fort St. George Gazette dated 22.4.1959 issued u/s

5(2) of the Act, the wakf is shown as Iddgah and Khader Pallivasal and by virtue of Section 6(4) of the Act, the list published u/s 5(2) of the Act

has become final and conclusive. The further submission of the learned Counsel for the petitioner is that the first respondent-Board is not vested

with any power under the provisions of the Act to bifurcate a single wakf notified u/s 5(2) of the Act into two. The learned Counsel for the

petitioner would further submit that even assuming that the first respondent-Board has the power to direct bifurcation of the single wakf into two,

the reason given by the first respondent in the impugned order for directing bifurcation of the Iddgah and Khader Pallivasal into Iddgah Gori Thope

Wakf and Khader Pallivasal Wakf is erroneous. In view of the case put forth by the parties, the two questions which arise for consideration in this

writ petition are:

(1) Whether the first respondent-Board has the power to bifurcate a single wakf notified u/s 5(2) of the Act into two?

(2) Whether the reason given by the first respondent for directing bifurcation of the Iddgah and Khader Pallivasal Wakfs into two as Iddgah Gori

Thope Wakf and Khader Pallivasal Wakf is correct?

Let me first examine the question whether the first respondent-Board has the power to bifurcate a single wakf notified u/s 5(2) of the Act into

two. As pointed out by this Court in Dr. O.C. Mohamed Hashim Vs. Tamil Nadu State Wakf Board and Others, , the Wakf Board has no

inherent power and if it seeks to exercise any power it must be in a position to lay its hands to some specific provision in the Act, and the Wakf

Board being a creation of the Wakf Act the powers and jurisdiction of the Wakf Board are restricted to those that are found in the Act. In Khadar

Shariff v. Tamil Nadu State Wakf Board (1987) 1 M.L.J. 159, a Division Bench of this Court, after referring to the decision reported in Dr. O.C.

Mohamed Hashim Vs. Tamil Nadu State Wakf Board and Others, , has observed as follows:

Under the terms of Section 15, it shall be the duty of the Board so to exercise its powers under the Act as to ensure that the Wakfs under its

superintendence are properly maintained, controlled and administered, etc. The language of the section is very clear that the Board should exercise

only such powers as are conferred under the Act.

Mr. K.N. Basha, learned Counsel for the first respondent and Mr. P.M. Jumma Khan, learned Counsel for the respondents 2 and 3, would submit

that the first respondent-Board has the power or authority to bifurcate a single wakf into two or more by virtue of the provisions of Sections 15(1),

15(2)(h), 15(2)(o) and 28 of the Act. The relevant portions of Sections 15(1) and 15(2) of the Act run as follows:

Functions of the Board : - (1) Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest

in the Board established for the State, and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs

under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the

purpose for which such Wakfs were created or intended:

Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the Wakf, the

purposes of the wakf sanctioned by the Muslim law.

(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-

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(n) to investigate and determine the nature and extent of Wakfs and Wakf property; and to cause, wherever necessary, a survey of the Wakf

properties;

(o) generally do all such acts as maybe necessary for the due control, maintenance and administration of Wakfs.

Under Section 15(1) of the Act, the Wakf Board has general powers of superintendence and control of all the wakfs in the State subject to the

direction of the Wakf its purpose and any usage or custom of the wakf sanctioned by the Muslim law. Section 15(2)(n) of the Act states that one

of the functions of the Board shall be to investigate and determine the nature and extent of wakfs and the wakf property and to cause whenever

necessary a survey of the wakf properties. Section 15(2)(o) of the Act is a residuary clause conferring power on the Wakf Board to do all such

acts as may be incidentally necessary for the purpose of ensuring that the wakfs are properly controlled, maintained and administered. A careful

examination of Sections 15(1), 15(2)(n) and l5(2)(o) of the Act shows that the said provisions do not give any power to the Wakf Board to

bifurcate an existing wakf into two or more. Section 28 must be read along with Sections 25, 26 and 27 of the Act. All these sections come under

Chapter IV of the Act which deals with registration of wakfs. Section 25 says that every wakf whether created before or after commencement of

the Act shall be registered at the office of the Board. Section 26 prescribes that the Board shall maintain a register of wakfs which shall contain in

respect of each wakf copies of the wakf deeds when available and certain other particulars mentioned in that section. According to Section 27, the

Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a

particular property is wakf property or not - it may, after making such enquiry, decide the question. Section 28 deals with the power of the Board

to cause registration of the wakf and to amend register and it reads as follows:

The Board may direct a mutawalli to apply for the registration of a Wakf or to supply any information regarding a Wakf or may itself cause the

Wakf to be registered or may at any time amend the register of Wakfs.

A combined reading of Sections 27 and 28 goes to show that when the Wakf Board decides the question whether a particular property is a wakf

property or not, then the Board for the purpose of implementing the decision rendered u/s 27 of the Act may cause the Wakf Board to be

registered or may at any time amend the Register of Wakfs. Section 38 does not confer any power or authority on the Wakf Board to bifurcate an

existing single wakf notified u/s 5(2) of the Act into two or more. Under these circumstances, there is no substance in the contention of the learned

Counsel for the respondents that the provisions of Sections 15(1), 15(2)(n) and (o) and 28 of the Act confer power to give power or authority to

the first respondent - Board to bifurcate a single wakf into two or more. Consequently it has to be held that the provisions of Act do not empower

the first respondent in this case to bifurcate the Iddgah and Khader Pallivasal Wakf into Iddgah Gori Thope Wakf and Khader Pallivasal Wakf.

Mr. Abdul Kalam, learned Counsel for the petitioner submitted that even assuming that the first respondent-Wakf Board has the power to

bifurcate a single wakf into two or more, the reason given by the first respondent for ordering bifurcation of the Iddgah Khader Pallivasal Wakf

into Iddgah Gori Thope and Khader Pallivasal Wakf is erroneous. The only reason given in the impugned order of directing bifurcation of the

existing wakf into two runs as follows:

As the very patta indicates that Iddgah Wakf is the property of a committee of trustees and not that of Khader Pallivasal, we have no hesitation in

holding that the Iddgah wakf belongs to the Iddgah committee and not to the Khader Pallivasal. we further hold that the notification issued in 1959

clubbing Iddgah Gori Thope and Khader Pallivasal is erroneous in the light of the facts that emerged at the enquiry.

The case of the petitioner with regard to patta in respect of the Iddgah Thope, as stated in para 5(h) of the affidavit is, that the wakf and its

properties including the Iddgah Thope at S. No. 302, Rajassoriamadai group, Ramanathapuram Taluk bearing patta No. 30 and measuring 3.44

acres was in possession and enjoyment of the Dakni Jamath for about a century and in 1960 the Sub-Collector, Ramanathapuram passed an order

in his proceedings K.Dis. 13589/89 stating that the patta in respect of the Iddgah should be given in favour of Dakni Jamath. On 19.4.1974, the

Tahsildar, Ramanathapuram directed the karnam of the Village to implement the order of the Sub-Collector and on 23.4.1974 the karnam

implemented the order of Sub-Collector. Subsequently the District Revenue Officer, Ramanathapuram set aside the Tahsildar''s direction dated

19.4.1974 and pursuant to the District Revenue Officer''s order the Tahsildar also directed the karnam by his order dated 28.6.1985 to effect the

change in the patta. In these circumstances, on behalf of the Jamath the petitioner preferred an appeal to the Revenue Divisional Officer,

Ramanathapuram against the Tahsildar''s order directing the karnam to effect change in the patta and when the appeal was rejected, the petitioner

preferred a second appeal (o the District Revenue Officer, Ramanatha-pwwm and obtained an interim order dated 4.6.1986 from the District

Revenue Officer directing the Revenue officials not to make any correction in the patta register pending disposal of the appeal before the District

Revenue Officer. The above averments contained in para 5(h) of the affidavit filed in support of the writ petition have not been denied by the

respondents in the counter-affidavit. The averments in para 5(h) of the affidavit go to show that the patta proceedings with regard to Iddgah Gori

Thope have not become final and the order granting patta in favour of the committee of trustees has been stayed by the District Revenue Officer,

Ramanathapuram and the appeal filed before him is also pending. In these circumstances, the first respondent-Board is not justified in holding that

the Idtlgah belongs to the Iddgah Committee and not to the Khader Pallivasal. Consequently the order of the first respondent-Board directing the

bifurcatidn of the Iddgah Gori Thope and its properties from Khader Pallivasal is clearly erroneous. Therefore, the order of the first respondent

Board dated 22.6.1986 challenged in this writ petition is liable to be set aside. Accordingly, the writ petition is allowed and the order of the first

respondent dated 22.6.1986 passed in W.A. No. 8 of 1985 is set aside. No costs.