The Wakf Board cannot substitute itself 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 1934.

1. 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 Wskf Board for issuing directions to the effect that a scheme earlier framed for Mohideen Andavar Pallivasal at Pottalpudor 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 or orig inally 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 Boards 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.

2. 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 and 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 adiminister it. In that context, Mr. Sattar Sayeed for the Board fairly concedes that it was never the intention of she Board to substiute 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 affiars of the Pallivasal in accordance with the various clauses in the scheme as framed by the Civil Court earlier to the Act.

3. It is in this way that the controversy has thus been considerably watered down.

4. There are three judgments of our Court which practically conclude the matter. The first one is reported in C.S. Peeran v. State Wakf Boards A.I.R. 1969 Mad. 350 Venkatadri, J. has observed that once a special Act cornea 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 O.S. No. 307 of 1934 ( Special Officer for Wakfs, Madras v. S.B. Fazluddln and others ,) Alagiriswami, J. again sitting on the original side in Application No. 1078 and 1079 of 1968 in C.S. No. 159/