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2018 Supreme(Mad) 2499
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
Md. Faud Badsha Sayeed - Petitioner
Vs.
Tamil Nadu Waqf Board, rep. by its Chairman, Chennai & Ors. - Respondents
C.R.P.(PD) Nos. 2024 and 2173 of 2011 and M.P. Nos. 1 + 1 of 2011
Decided On : 01-10-2018
For the Petitioner: Mr. R. Abdul Mubeen.
For the Respondents: Mr. V. Lakshmi Narayanan, Mr. N.A. Nissar Ahmed.
The main legal point established in the judgment is that adherence to the prescribed procedure under the relevant sections of the Waqf Act is crucial for maintaining the maintainability of revision petitions.
Headnote:
Waqf Act - Challenging removal as Mutawalli and direct management by Waqf Board - Sections 64, 65, and 83 of the Waqf Act, 1995 - The court held that the petitioner did not follow the procedure contemplated under Sections 64(4) and 65(2) of the Waqf Act, 1995, and consequently, the revision petitions preferred against the order of the Tribunal are not maintainable and liable to be dismissed.
Fact of the Case:
The case involved a challenge to the removal of the petitioner as Mutawalli and the direct management of the Waqf by the Waqf Board.
Finding of the Court:
The court found that the petitioner did not follow the prescribed procedure under the relevant sections of the Waqf Act, rendering the revision petitions not maintainable and liable to be dismissed.
Issues: The issues revolved around the proper procedure for challenging the removal as Mutawalli and the direct management of the Waqf by the Waqf Board.
Ratio Decidendi: The court emphasized that when the legislature provides a particular thing to be done in a particular manner, it must be done in the same prescribed manner and in no other manner.
Final Decision: The Civil Revision Petitions were dismissed, and there was no order as to costs. The connected Miscellaneous Petitions were closed.
C.R.P.(PD) No. 2024 of 2011 is filed challenging the order of dismissal of the Original Application No.14 of 2009 filed under Section 83(2) of the Waqf Act, 1995 (hereinafter referred to as the Act) against the Resolution dated 28.07.2009 passed by the 1st respondent and the consequential order of the 2nd respondent dated 26.10.2009 against the removal of the revision petitioner as Mutawalli and taking over the direct management of the Masjid-e-Sayeedia, Chennai.
2. C.R.P.(PD) No. 2173 of 2011 is filed challenging the order of dismissal of the Original Application No.15 of 2009 also filed under Section 83(2) of the Act.
3. When the revisions were taken up, Mr. V. Lakshmi Narayanan, learned counsel appearing on behalf of Board took out a preliminary objection that both the revisions are not maintainable inasmuch as the Original Applications filed by the revision petitioner before the Tribunal was itself not maintainable. Both the Applications filed i.e., O.A.No.14 of 2009 and O.A.No.15 of 2009 contain the same grounds and the same relief.
4. The learned counsel would submit that the order removing the revision petitioner from the post of Mutawalli has been passed under Sections 64 and 64(4) of the Waqf Act, 1995 the remedy that is available to the aggrieved party is to file an appeal against the order of the Tribunal. He would argue that instead of invoking the provisions of Section 64(4) of the Act, the revision petitioner has invoked the provisions of Section 83(2) of the Act. Section 83(2) of the Act deals with dispute, question or other matter relating to the Waqf which can be invoked by a Mutawalli, or a person interested in a Waqf or any other person aggrieved by an order and upon such application being made, the Tribunal is directed to determine the said issue.
5. The learned counsel would further argue that the revision petitioner has clubbed the order removing him from Mutawalliship and taking over the management of the Waqf by the 1st respondent in a single petition since the relief that is claimed is to set aside the Resolution passed in RC No.9582/08/B2/Chennai by the 1st respondent dated 28.07.2009 and consequential order in Proceedings No.9582/08/B2/Chennai Wakf Board, Chennai by the 2nd respondent dated 26.10.2009 and allow this appeal; grant cost of the revision and such other relief or reliefs as this Hon'ble Court may deem fit in the circumstances of the case and render Justice.
6. In the instant case, the revision petitioner is challenging
(a) his removal as Mutawalli which squarely falls within the provisions of Section 64(4) of the Act and any order passed by the Tribunal under Section 64(4) is final; and
(b) the taking over of direct management by the Waqf Board under Section 65(1) of the Act for which the remedy is provided under Section 65(2) of the Act.
7. Mr. R. Abdul Mubeen, learned counsel appearing for the revision petitioner would contend that quoting a wrong provision would not render this Court helpless since it is open to this Court to exercise its jurisdiction under Article 227 of the Constitution of India to mould the relief.
8. Heard the submissions of the learned counsel appearing on either side and perused record and the provisions of the Act.
9. A reading of Sections 64, 65 and 83 of the Act would highlight that each of these provisions operates on different spheres. Section 64 deals exclusively with the removal of Mutawalli. Sub Section (1) deals with the grounds on which the Board could remove a Mutawalli. Sub Section (2) deals with the consequences of the removal of a person from the office of the Mutawalli that it shall not affect his personal rights in respect of the Waqf property either as a beneficiary or in any other capacity. Sub Section 3 deals with the procedure prescribed the removal. Sub Section 4 deals with the remedy available to the Mutawalli so removed. Sub Section 5 talks about the interregnum period pending enquiry. Sub Section 6 contemplates the appointment of a receiver.
