Back
2017 Supreme(Mad) 1954
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
T. RAVINDRAN, J.
Hajee K.Farook Sahib son of Late. Kader Mohideen – Petitioner
Vs.
The Commissioner, Tirunelveli Municipal Corporation, Tirunelveli and Others – Respondents
C.R.P.(NPD) (MD) No.508 of 2006
Decided On : 01-09-2017
For the Petitioner: Mr. D. Nallathambi
For the Respondent: Mr. K. Mahendran, Mr. K.K. Senthil, Mr. V. Muruganandam, A.G.P.,
Headnote:
Wakf Act, Section 91,91(1),9(2),9(3) and 91(4) - Land Acquisition Act - Section 31 and 32 - Case of plaintiff i is that (Darga) is a notified wakf and administered by its Executive Committee elected or nominated from time to time subject to approval and supervision of Wakf Board and property described in plaint schedule had been gifted and endowed under a registered document, and gift had been duly accepted and possession of the gifted property was with the successive of the Dargah and property gifted , presently, its total measurement is 561 sq.ft., and said property belonged to the plaintiff - It is case of plaintiff that proceedings under provisions of t Land Acquisition Act were initiated in respect said property by Government represented by the defendant- Plaintiff is entitled to mesne profits from defendant as prayed for and defendant is liable to pay same to plaintiff as claimed - Plaintiffs predecessors and concerned persons represented matter to Municipal Authorities and District Collector to release land and give it back to wakf - But, authorities did not comply with their demand and though property is a wakf property and without sanction of Wakf Board, acquisition proceedings could not be resorted and by way of acquisition proceedings, as Dargah having been deprived of the only source of income from the property concerned – Held, land acquisition proceedings shall be declared as void - Insofar as this case is concerned, when it is found that no such claim has been made by Wakf Board to appropriate authority challenging acquisition, when Wakf Board has not pleaded ignorance about same in written statement - In the light of above discussions, it is found that following the acquisition suit property had become vested with Government - However, when by way of present suit, plaintiff is throwing a challenge only to acquisition proceedings, which cannot be done in a Civil Court - In light of above discussions, court hold that the Wakf Tribunal has no jurisdiction to decide suit laid by the plaintiff. court, further, hold that plaintiff is not entitled to obtain reliefs of declaration, possession and past and future mesne profits as prayed for - In conclusion, Judgment and Decree, passed in O.S.No.233, on file of Principal Sub Court/Wakf Tribunal, are confirmed and civil revision petition is dismissed.
The civil revision petition is directed against the Judgment and Decree, dated 18.01.2006, passed in O.S.No.233 of 1998, on the file of the Principal Sub Court/Wakf Tribunal, Tirunelveli.
2. For the sake of convenience, the parties are referred to as per the nomenclature in the suit.
3. The suit has been laid by the plaintiff for declaration, possession and past and future mesne profits.
4. The case of the plaintiff in brief is that Sheik Zinda Madarasa (Darga) Thaikkal is a notified wakf and administered by its Executive Committee elected or nominated from time to time subject to the approval and supervision of the Tamil Nadu Wakf Board and the property described in the plaint schedule had been gifted and endowed by Sheik Mohideen Rowther, A.M.Paul Mohammed Rowther, Seyed Sathar Sahib and Segu Kader Sahib belonging to Palayamkottai to Sheik Sindha Madarasha Darga under a registered document, dated 08.07.1902 and the gift had been duly accepted and the possession of the gifted property was with the successive Muthavallies of the Dargah and the property gifted is situated in T.S.No.701, in Ward No.II, Block No.6, South Bazzar, Palayamkottai Municipality, presently, Tirunelveli Municipal Corporation and its total measurement is 561 sq.ft., and the said property belonged to the plaintiff - wakf. It is the case of the plaintiff that proceedings under the provisions of the Land Acquisition Act were initiated in respect of the above said property by the Government represented by the defendant as per the Award No.2/61, dated 29.06.1961 and the plaintiff's then Muthavalli objected to the acquisition proceedings. However, it was decided by the Acquiring Officer in his Award that Rs.361.28 be paid as compensation for the extent of 561 sq.ft., acquired on the ground of public purpose and the said sum was deposited in the Sub Court, Tirunelveli, in O.P.No.4 of 1962, since the plaintiff did not receive the amount so awarded. The said property was said to have been acquired for the purpose of carrying out health schemes sponsored by the local authority and under the Land Acquisition Act, the lands so acquired must be utilized for the purpose for which it was acquired. The plaintiff had never been desirous to settle for the compensation awarded in lieu of the property belonging to it being acquired. The said land, after notification and acquisition proceedings, was taken over by the defendant ostensibly for the commercial purpose and not used for the public purpose for which it had been acquired. It, thus, contravenes the provisions of the Land Acquisition Act. In the land acquired and taken over for carrying out health schemes, the defendant has constructed shops and is now said to be deriving a total monthly revenue of Rs.1,183/- and the local body had chosen the valuable land for augmenting its revenue even though the land acquired for the public purpose. The plaintiff is entitled to the mesne profits from the defendant as prayed for and the defendant is liable to pay the same to the plaintiff as claimed. The plaintiff's predecessors and concerned persons represented the matter to the Municipal Authorities and the District Collector to release the land and give it back to the wakf. But, the authorities did not comply with their demand and though the property is a wakf property and without the sanction of the Tamil Nadu Wakf Board, the acquisition proceedings could not be resorted and by way of the acquisition proceedings above stated, as the Dargah having been deprived of the only source of income from the property concerned, according to the plaintiff, it had issued a registered notice to the first defendant, dated 01.12.1994, to handover the property and though the first defendant had received the same neither chosen to send reply nor comply with the lawful demand of the plaintiff. The first defendant, in his written statement, had stated that the third defendant is a necessary party and hence, the third defendant has been impleaded
