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2014 Supreme(Mad) 1490
Madurai Bench of Madras High Court
V. RAMASUBRAMANIAN & V.M. VELUMANI, JJ.
K.S. Sharfudeen & Others
Versus
Union of India, rep by its Secretary to Government, New Delhi & Others
Writ Petition (MD) No. 15524 of 2012 & Civil Revision Petitions (PD) (MD) Nos. 2461, 2262, 2296, 2567, 2631, 2666 of 2012 & 236 & 73 of 2013
Decided on: 19-06-2014
For the Appearing Parties:R. Viduthalai, Senior Counsel for Veera.Kathiravan, V.K. Vijayaragavan, A.S. Mujibur Rahman, Vijayashanthi, N. Krishnaveni, K.K. Ramakrishnan for K. Guhan, H. Arumugam, M.R.S. Prabhu, for Caveator, B. Pugalenthi, Special Government Pleader, D. Nallathambi, K.K. Senthil, S. Deenadhayalan, S.C. Herold Singh, M/s. Ajmal Associates, M.J. Jesseem Mohammed, J. Sulthan Basha, (for Non parties), K.K. Senthil, Wakf Board, Advocates.
The Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995 are constitutionally valid. The Civil Court has lost its jurisdiction to modify a scheme framed by it in respect of a wakf, by virtue of the provisions of the Act.
Headnote:
The Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995 are constitutionally valid. The Civil Court has lost its jurisdiction to modify a scheme framed by it in respect of a wakf, by virtue of the provisions of the Act.
Fact of the Case:
A scheme suit was filed under Section 92 of the Code of Civil Procedure in 1952 for the proper administration of a wakf. The scheme was amended in 1954 and confirmed by the Supreme Court in 1962. A fresh decree was passed in 1970, amending the original scheme. The District Court nominated trustees once in three years. In 2011, the District Court invited applications for the appointment of trustees. Several applications were received, and objections were also raised. After considering all the applications and objections, the District Court appointed trustees for a period of three years. Several civil revision petitions were filed challenging the appointments. A writ petition was also filed challenging the constitutional validity of the Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995.
Finding of the Court:
The court held that the Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995 are constitutionally valid. The court also held that the Civil Court has lost its jurisdiction to modify a scheme framed by it in respect of a wakf, by virtue of the provisions of the Act.
Issues: 1. Whether the Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995 are constitutionally valid? 2. Whether the Civil Court has jurisdiction to modify a scheme framed by it in respect of a wakf?
Ratio Decidendi: 1. The court held that the Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995 are constitutionally valid. The court relied on the following grounds: a) The Explanation to Section 32(1) merely replaces the forum for supervisory control over the wakfs, from that of Civil Court to the Wakf Board. b) No court ever declared at any point of time, that a Wakf Board like the Hindu Charitable and Endowments Board cannot have any power of superintendence over wakfs. c) The Wakf Board is also obliged, de hors the powers under Section 32(1), to ensure proper administration of wakfs in tune with the wishes of the founder. 2. The court held that the Civil Court has lost its jurisdiction to modify a scheme framed by it in respect of a wakf, by virtue of the provisions of the Act. The court relied on the following grounds: a) Section 83 of the Wakf Act provides for constitution of the Wakfs Tribunals for the determination of any dispute, question or other matter relating to a wakf or wakf property. b) Section 85 of the Act bars the jurisdiction of the Civil Courts in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
Final Decision: The court allowed the civil revision petitions and set aside the order of the Principal District Judge, dated 21.09.2012. The court also directed the Tamil Nadu Wakf Board to appoint trustees to the trust in question, strictly in accordance with the directives, contained in the deeds of trust and also keeping in mind the manner in which the Civil Court had handled the question of appointments in the past.
V. Ramasubramanian, J.
1. While all the Civil Revision Petitions (except C.R.P.(PD)(MD)No.2666 of 2012) filed under Article 227 of the Constitution, arise out of the appointment of several persons as trustees of the M.K.N.Madarasa Trust, Adirampattinam, in a scheme suit on the file of the Principal District Judge, Thanjavur, the writ petition is by the 11th respondent in the Civil Revision Petition in C.R.P (PD) (MD)No.2461 of 2012, challenging the constitutional validity of the Explanation under Section 32(1) and clause (g) of sub Section (2) of Section 32 of the Wakf Act, 1995. C.R.P.(PD)(MD)No.2666 of 2012 is filed under Article 227 of the Constitution, challenging a similar order of appointment of trustees passed by the Scheme Court for the previous term namely 2008-2011.
2. We have heard Mr.R.Viduthalai, learned Senior Counsel for the writ petitioner, who is also one of the hereditary trustees appointed by the trial Court, Mr.Veera.Kathiravan, learned counsel for the 11th respondent in the Civil Revision Petition in C.R.P (PD) (MD)No.2461 of 2012, Mr.D.Nallathambi, learned counsel for the Union of India, Mr.B.Pugalenthi, learned Special Government Pleader for the State of Tamil Nadu, Mr.K.K.Senthil, learned Standing Counsel for the Tamil Nadu Wakf Board, Mr.V.K.Vijayaragavan, Mr.F.Mohammed Yusuf, Mr.A.S.Mujibur Rahman, Mr.K.K.Ramakrishnan and H.Arumugam, learned counsel for the petitioners in the Civil Revision Petitions.
3. By two deeds of gift executed more than a century ago on 16.02.1900 and 06.04.1901 one Haji Khadir Mohideen Marakayar of Athiramapattinam in Thanjavur District endowed a vast extent of wet and dry land measuring about 1500 acres, with the noble object of providing religious education through Madarasas. The endowment was known as Madurasathul-salahi-adramil Filaki otherwise known as M.K.N.Madarasa Trust of Adirampattinam.
4. The management of the trust was vested with a committee of trustees consisting of the founder trustee Khadir Mohideen Marakayar and his three brothers and the son of one pre-deceased brother.
5. As per the recitals of the deeds of trust, six male line descendants of the family of the founder trustees are eligible to become trustees. Since the eldest founder member Khadir Mohideen Marakayar did not have any issues, his three brothers represented the trust.
6. The District Court, Thanjavur framed a scheme for the proper administration of the trust, in a suit filed under Section 92 of the Code of Civil Procedure in O.S.No.21 of 1952. The scheme was amended further on 10.03.1954 and the same was confirmed by the Supreme Court on 16.01.1962.
7. Again by a fresh decree passed in O.S.No.6 of 1970, the original scheme was amended and a fresh scheme was to be in place. As per the scheme, the District Court, Thanjavur, was actually nominating the trustees, once in three years. Every time a nomination was made, it was invariably challenged before this Court, making this trust gain huge popularity.
8. When the term of office of the members of the board of trustees, expired on 31.03.2011, the District Court, invited applications by making due publication in the newspapers on 30.12.2010 and 20.01.2011. The appointment was for two hereditary trustees from each of the three branches totaling to six hereditary trustees apart from three non hereditary trustees. The trustees newly selected were supposed to hold office for a period of three years, from 01.04.2011 to 31.03.2014.
9. In response to the advertisement issued in the local dailies as well as in the notice boards, 10 applications were received from the male lineal descendants of the first branch, five applications received from second branch and 11 applications received from the third branch. The parties also exchanged objections to the applications of each other.
10. After considering all the applications as well as the objections raised on all sides, the Principal District Judge, Thanjavur passed an order dated 21.09.2012, appoin
