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MADRAS HIGH COURT
T. Raja, J.
Haji B. Pakkir Mohammed, President, Madrasha-E-Merajul-Uloom @, Islamia Kalvi Sangham (Petitioner in both W.Ps.) —Petitioner
versus
The Secretary to Government, Department of Backward Most Backward Classes and
Minority Welfare, Govt. of Tamil Nadu
and Ors —Respondents
W.P. Nos. 15177 and 21750 of 2010 & M.P. Nos. 1, 2, and 3 of 2010 & C.R.P. (NPD) No. 3713 of 2010
Decided on 9.8.2011
Counsel for the Parties:
For the Petitioner in W .Ps/C.R.P.:Haja Nazirudeen for A. Prabhakaran, Advocate
For the Respondent Nos.2 to 4 in both W.Ps.:Haja Mohideen Gisthi, Advocate.
For the Respondent Nos. l in both W.Ps. & 11 in the C.R.P; S.V. Duraisolaimalai, Additional Govt. Pleader.
For the Respondent No.5 in W.P.15177 of 10:T. Velumani, Advocate.
For the Respondent No.10 in the C.R.P.:V. Lakshmi Narayanan, Advocate.
For the Respondent Nos.2, 3 & 5 to 9 in C.R.P.:R. Sankarappan, Advocate.
IMPORTANT POINT
Once a property in dedicated to Almighty under Muslim Law as a wakf to serve religion and poor, character of such property can never be altered.
Headnote:(i) Wakf Act, 1955—Wakf—Claim of—Rejected by Wakf Board—Challenged—Once a wakf, always a wakf—Cannot be altered ever—A scheme based on consent of all parties for clubbing together all four wakfs forming part of Madrasa and Kalvi Sangam run by society on wakf land—New Wakf established—Part of wakf property directed to be retrieved with other component for better administration of wakf by consent of society—Control over such property cannot be claimed by Society—Wakf Board alone can deal with exclusively. (Para 13)
(ii) Wakf Act, 1955— Section 3(1)(iii) —Wakf—Wakf alal-aulad—Property dedicated to wakf—Right to control by dedicator—Once a wakf is always a Wakf—It cannot be altered ever—Petitioner—Association being a society dedicated property to wakf and made improvement—Consent scheme for administration framed by special officer on 22.9.1992—Validity of scheme upheld in earlier litigation—Petitioner, society cannot claim exclusive right over property—Wakf once created, cannot be ceased as a wakf—Society has no case to succeeded at all. (Para 13)
(iii) Wakf Act, 1955—Scope of—Wakf Act, a special enactment—To provide for better administration and supervision of movable and immovable properties dedicated permanently to serve religion and needy—It outs applicability of general law (Societies Registration Act) particularly in matters relating to administration, supervision, management and control over wakf properties. (Para 15)
(iv) Civil Procedure Code, 1908—Section 80—Wakf Act, 1955—Section 89—Pre suit notice—Mandatory under Section 89 of Act, 1955—Section 89 of Act beginning in a negative sense— Imperative and mandatory—Non-compliance of such mandatory requirement, renders suit itself not maintainable-Provision imposes upon every Civil Court, a statutory and unqualified obligation to dismiss suit for non-compliance of such vital mandatory requirement. (Para 17)
(v) Civil Procedure Code, 1908—Order VII, Rule 11—Rejection of plaint—For want of pre suit notice under Section 89 of Wakf Act, 1955—Sense with wordings no suit shall be instituted—Imperative—Section 89 of Act, 1955 beginning in a negative regarding issuance of notice of suits—If a suit instituted without complying with such vital mandatory requirement, suit deserves to be rejected by Court under Order VII, Rule 11 (Para17)
(vi) Constitution of India— Articles 226, 227—Writ proceedings—Applicability of principle of. Res judicata—Principle of res-judicata also applicable to writ proceeding-Core issue already decided by High Court—Struck by operation of principle of res- judicata . (Para 11)
Result: Petitions dismissed.
T. Raja, J.—The Writ Petitioner Haji B. Pakkir Mohammed, who is the president of Madrasa-E-Merjul-Uloom @ Islamia Kalvi Sangam at Dharmapuri (hereinafter referred to as ‘Sangam’), has filed W.P. No.21750 of 2010, questioning the Resolution, dated 6.7.2010, of the Chairman of the Wakf Board, (communicated to the Petitioner on 19.7.2010), whereby, the Application, dated 31.5.2005, submitted by the Petitioner Sangam, with the claim that the Petitioner/sangam is not a Wakf, came to be rejected, based on the earlier Order/Scheme framed by the Special Officer of the Tamil Nadu Wakf Board bearing R.C. No.3598/85/B2/Dhar/85, dated 22.9.1992, thereby, the Islamia Kalvi sangam was amalgamated along with (a) Mohamed Ali Memorial Club, (b) Madrasa Mehrajul Uloom, and (c) Masjid-e-Bilal as one Single Wakf, called “Moulana Mohamed Ali Munnetra Sangam”. Hence, both the proceedings, dated 6.7.2010 and 22.2.1992, are sought to be quashed.
In W.P. No.15177 of 2010, the very same Petitioner challenges the proceedings of the Wakf Board, dated 29.4.2010, bearing Na. Ka. No.3598/85 A6/Dhanuapuri (S. No.12, Resolution No.80/10) and the consequential proceedings, dated 3.6.2010, of the Chief Executive Officer, TN Wakf Board, in and by which the Board assumed direct Management of the Sangam as well as the other three Wakfs in terms of what is provided under Section 65 of the Wakf Act, 1995, by appointing the Superintendent of Salem Wakf as the Administrative Officer and calling upon the erstwhile Managements including the Petitioner-Sangam to render the accounts, etc.
One Mr. D.S. Khalandar, Secretary of the Sangam/Society, has filed CRP (NPD) No.3713 of 2010, seeking to set aside the Judgment and decree, dated 23.3.2010, passed by the learned Principal Subordinate Judge, Krishnagiri, in W.O.S. No.90 of 2006, whereby, the Plaintiff-Sangam’s prayer to exclude it from the purview of Wakf and to grant injunction, restraining the Wakf Board from interfering with the Management of the Sangam, was negatived.
2. Since the above two Writ Petitions and the Civil Revision Petition are interconnected and the issues arising therein need a common consideration, the cases are heard together and finally, disposed of by this Common Order.
3. Certain crucial facts necessary to understand the nature of issues arising in the cases are briefly detailed below, for better appreciation:
Mohammed Ali Memorial Club Wakf, Dhanuapuri, a Surveyed and Notified Wakf vide Gazette SI. No.41 of Dharmapuri, was initially managed by a Committee headed by one Janab D.S. Naseer Ahamed. The land belonging to the said Wakf was leased out to the Petitioner-Sangam, a Society registered under the Societies Registration Act. On the leased land, the Society constructed shops and buildings and, there is also an Arabic
College called Madrasa-e-Mehrajul Uloom under the management of the Society.
It is the case of the Sangam-Society that it was established with four objects viz., to impart religious education, found Madrasa, help the needy to pursue studies in Medicine and Engineering and to take part in cultural activities and, in Order to achieve those objectives, the Society has been raising funds through subscription from its members, donation from philanthropists, rental income from the leasehold properties, etc. It is the further case of the Sangam that the Society has a General Body, Executive Committee and Office Bearers and it is periodically submitting the Returns with the Registrar of the Co-operative Societies.
While so, on 16.3.1992, the Government of Tamil Nadu issued a Gazette Notification in G.O. No.163, stating that the State Government had taken a policy decision to take over the management of the Tamil Nadu Wakf Board, and consequently, appointed a Special Officer for a period of one year and the said Special Officer went exhaustively examining the acts done by the previous Managements. In the matter of the Wakf in question, the Special Officer, after receiving representations f
