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2007 Supreme(Mad) 926
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. SATHASIVAM & THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
H. Idayathulla & Others
Versus
Larabsha Dharga Panruti rep. by its Muthavallis & Another
W.A.No.1810 of 2005
Decided On : 14-03-2007
R. Santhanagopalan, for S. Thangavel, R2, A.S. Kaizer, Advocates.
Headnote:
Wakf - Private Wakf - Section 36-F of the Wakf Act, 1954, corresponding to Section 56 of the Wakf Act, 1995 - The court discussed the nature of the Wakf, the authority of Muthavallis to grant lease, and the validity of a permanent lease. The court found that the Wakf is a private Wakf, Muthavallis are hereditary, and a permanent lease of Wakf property is void ab initio under the statutory provisions.
Fact of the Case:
The Larabsha Dharga, Panruti is a private Wakf. The Muthavallis, representing the writ petitioner, filed a writ petition against encroachment and construction of a mosque by the respondents 2 to 6. The main contentions were the validity of the lease deed and the nature of the Wakf.
Finding of the Court:
The court found that the Wakf is a private Wakf, Muthavallis are hereditary, and a permanent lease of Wakf property is void ab initio under the statutory provisions. The respondents 2 to 6 were treated as encroachers and were directed to be evicted.
Issues: The issues included the nature of the Wakf, the authority of Muthavallis to grant lease, the validity of a permanent lease, and the maintainability of the writ petition.
Ratio Decidendi: The court held that the Wakf is a private Wakf, Muthavallis are hereditary, and a permanent lease of Wakf property is void ab initio under the statutory provisions. The respondents 2 to 6 were treated as encroachers and were directed to be evicted.
Final Decision: The writ appeal was dismissed, and the respondents 2 to 6 were directed to hand over possession of the mosque to the Muthavallis within four weeks, failing which the Chief Executive Officer was directed to comply with the eviction order within two months.
Certainly. Based on the provided legal document, here are the key points:
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The Larabsha Dharga, Panruti, has been conclusively identified as a private Wakf, specifically a Wakf-Alal-Aulad, and not a public Wakf (!) (!) .
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The hereditary Muthavallis are recognized as the legal representatives and custodians of the Wakf, with the authority to manage the Wakf property by hereditary right and customary practice (!) (!) .
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A Muthavalli does not have the independent authority to execute a lease deed without the consent of the other Muthavalli, especially for a lease exceeding a short term. Any lease for more than three years, or even for a period of one to three years, requires prior approval from the Wakf Board (!) (!) (!) (!) .
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The statutory provisions explicitly prohibit the grant of permanent leases or leases exceeding three years of Wakf property. Any such lease is considered void ab initio, and a lease granted under these circumstances is invalid (!) (!) (!) (!) .
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The alleged lease deed executed by one of the Muthavallis for 11 months with an intention to convert it into a permanent lease is invalid under the law. The law mandates that leases beyond one year must have prior approval from the Wakf Board, and leases exceeding three years are outright void (!) (!) .
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The construction of a mosque within the Wakf premises by respondents 2 to 6 is considered unauthorized and constitutes encroachment, as they have no legal leasehold or authority to occupy the property (!) .
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The court found that the respondents 2 to 6 entered the Wakf property without proper authorization and are therefore encroachers. Their act of constructing the mosque was not legally sanctioned, and they have no right to remain in possession (!) .
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The court directed the authorities to take steps to remove the encroachment and hand over possession of the Wakf land and property to the rightful Muthavallis within a specified period. The court emphasized that there is no need for further enquiry under certain statutory provisions because the facts established encroachment and illegality (!) (!) .
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The court held that the availability of an alternative remedy, such as an appeal before the Tribunal, does not bar the invocation of the jurisdiction of the High Court under Article 226 of the Constitution of India, especially when the case involves illegal acts or encroachments (!) (!) (!) .
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The court observed that in cases where the law explicitly prohibits certain acts—such as granting permanent leases of Wakf property—those acts are null and void, regardless of any consent or purported authority (!) (!) .
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The court clarified that if the respondents 2 to 6, who are found to be encroachers, voluntarily hand over possession of the mosque to the Muthavallis within a specified period, the Muthavallis can decide whether to retain the mosque or not. If they fail to do so, the authorities are directed to proceed with eviction (!) .
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The appeal was dismissed, with the court emphasizing that the order to remove encroachment and restore possession was justified and that no costs were awarded (!) .
Please let me know if you need further analysis or assistance.
N. Paul Vasanthakumar, J.
This writ appeal is directed against the order of the learned single Judge made in W.P.No.11192 of 2000 dated 27. 2005 allowing the writ petition filed by the first respondent herein/writ petitioner. Second respondent herein is the first respondent in the writ petition and the appellants herein are respondents 2 to 6 in the writ petition.
2. For the sake of convenience, the parties herein will be referred according to their ranks in the writ petition.
.3. The brief facts necessary for disposal of the writ appeal are that the Larabsha Dharga, Panruti is a private Wakf – Wakf-Alal-Aulad and the representatives of the writ petitioner are the Hereditary Muthavallis of the Larabsha Dharga. The Muthavallis are performing religious, charitable and pious obligations as per the Hibba executed by their ancestors. The Dharga owns 1.19 acres of land with shop buildings and five ghories. The respondents 2 to 6 (appellants herein) calling themselves as Jamath Committee, have encroached upon the portion within Dharga premises and demolished two of the five ghories illegally and put up a thatched shed for the purpose of a mosque. The respondents 2 to 6 had not obtained any lease deed from the two Muthavallis viz., the writ petitioner and trespassed in the Dharga premises on 3. 1992 on the ground that one of the trustee viz., Heeralal gave lease for 11 months. Khaleel Basha, the other Muthavalli gave a complaint before the Superintendent of Police at Cuddalore and later sent a report to the Tamil Nadu Wakf Board on 13. 1992. The Dharga filed W.P.No.6440 of 1992 against the Tamil Nadu Wakf Board and Heeralal and respondents 2 to 6 and this Court by order dated 23. 1998 directed the Wakf Board to cosider the complaint of the petitioner therein/Dharga and pass final orders after issuing notice to the respondents in the case, in accordance with law on or before 23. 1998. Petitioner requested the Wakf Board to take immediate action against the respondents 2 to 6 as per the direction issued by this Court referred above. However, the Wakf Board passed an order on 22. 1999 and rejected the request of the petitioner and permitted the respondents 2 to 6 to keep the mosque within the Dharga premises. The said order of the Wakf Board dated 22. 1999 is challenged by the petitioner in W.P.No11192 of 2000.
4. The main contentions raised in the writ petition are that Heeralal, one of the Muthavalli of the private Wakf has no authority to execute lease deed in favour of the respondents 2 to 6 without the consent, knowledge or authority of the other Muthavalli, namely Khaleel Basha, the other Muthavalli not ratified the alleged lease deed said to have been executed by Heeralal in favour of respondents 2 to 6; that even if the lease deed is considered as valid, it was granted only for 11 months; that the Wakf Board considered the said lease deed as a permanent lease; that the said stand taken by the Wakf Board is totally in violation of Section 36-F of the Wakf Act, 1954, correspondeing to Section 56 of the Wakf Act, 1995; and that, the Wakf Board also misconstrued the order of the Civil Courts. Allegations are also made against the then Chairman of the Wakf Board.
.5. Respondents 2 to 6, who are the appellants herein filed counter affidavit in the writ petition and justified the order of the Wakf Board dated 22. 1999 by contending that the Larabsha Dharga is surveyed and notified as Public Wakf and it owns 2.25 acres of land in R.S.No.24 and 0.11 cents in R.S.No.23 in Panruti revenue village. The Dharga of the Saint Larabsha is located in the land bearing R.S.No.24. The muslim Jamath of Panruti town wanted to construct a mosque in order to save the sanctity of the Dharga and also to utilise the portion to remove the unauthorised encroachment made by the Public from destroying the sanctity of the Dharga. The Jamath people entered into an agreement with one of the Muthavalli viz., Heeralal. The lessor and lessee agreed to
