Babu Khan Mohammed Sha Pannadi Bee Dargha v. The Tamil Nadu Wakf Board

O R D E R This writ petition is filed for Writ of Certiorari, to quash the impugned order, dated 24.02.2023 and the consequential order, dated 10.03.2023.

¶2Heard Mr.H.Arumugam, the Learned Counsel appearing for the petitioner, N.Mahideen Basha, the Learned Standing Counsel appearing for the respondents and perused the material documents available on record.

¶3The contention of the petitioner is that the Wakf was created by his forefathers. Originally, the petitioner's grandmother Mrs. Macca Bibi was administering the Dargha. Thereafter, the petitioner's father, namely K.Sardar Khan, who was appointed as Hereditary Mutawalli by order, dated 22.05.1976. After the demise of petitioner's father, the petitioner was appointed as Hereditary Mutawalli.

¶4A dispute arose when another Wakf, namely Jamia Pallivasal Mohalla claimed right over Kabarsthan (burial ground) belonging to the petitioner Wakf. Hence the petitioner has filed an application in O.A.No.28 of 2022 before the Wakf Tribunal. During the pendency of the said application, the Wakf Board itself has passed an order, dated 01.04.2022, holding that the burial ground belongs to the petitioner's Wakf and no one can allot the burial ground in favour of other Wakf.

¶5The contention of the petitioner is that without any complaint from any quarter, all of a sudden, the respondents 2 & 3 came to the petitioner's Wakf and affixed the impugned notice, dated 10.03.2023, wherein the impugned notice states that the Wakf has been taken over by the 1st respondent from 20.02.2022 i.e., from the date of passing the resolution. The further contention of the petitioner is that no such resolution was served on the petitioner, but the impugned order, dated 24.02.2023 alone was served only on 10.03.2023 with direction to hand over the charge. Therefore, the contention of the petitioner is that he was directed to hand over the management, without issuing any notice and without affording any opportunity to the petitioner, thereby violative of principles of natural justice.

¶6Moreover, the learned counsel appearing for the petitioner relied on the order, dated 22.12.2022, wherein it is stated as under: "Nkw;fz;l cj;juTg;gb> jpUr;rp tf;G Ma;thsh; jkJ 18.10.2022 ehspl;l mwpf;ifapy; ,t;tf;gpd; murpjo; thpir vz;-748-jpUr;rp vdTk;> ,t;tf;gpd; Kj;jty;yp vd;w gj;jpapy; Riykhd; fhd; kahdh j-ng.uRy;fhd; kahdh 46 Gj;J}h; fhydp jpUr;rpuhg;gs;sp kw;Wk; iraj; mg;Jy; m[P]; ghz;lkq;fyk; vd Fwpg;gplg;gl;Ls;sJ vdTk;> NkYk; Kj;jty;yp epakd topKiw vd;w gj;jpapy;"Sulaiman khan mayana alias its once while Syed Abdul Azees also Elias its once" vd Fwpg;gplg;gl;Ls;sij jtpu Nkw;gb tf;ig guk;giu ghj;jpaj;jpw;F cl;gl;lth;fs; vd Fwpg;gplg;gltpy;iy vdTk;> NkYk; Nkw;gb egh;fs; jh;fh tf;ig eph;thfk; ghh;j;J te;jjw;fhd ve;j xU MtzKk; ,t;tYtyf Nfhg;gpy; ,y;iy vdTk;> ,e;epiyapy; jw;nghOJ eph;thfk; ghh;j;JtUk; [dhg; Nf.v];.mg;Jy; fyhk; vd;gth;

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eph;thf nghWg;gpy; ,Ue;J te;Js;shh; vd tpdtpa NghJ Nkw;gb egh; %y mwpf;ifapy; Fwpg;gplg;gl;Ls;s Riykhd; fhd; kahdh vd;gth; jdJ ghl;ldhhpd; rNfhjuh; vd Fwpg;gpl;Ls;shNu jtpu ,jw;F chpa ve;j xU MtzKk; rkh;g;gpf;ftpy;iy vdTk;> ,jid itj;J Muha;ifapy; [dhg; Nf.v];.mg;Jy; ryhk; vd;gth; guk;giu ghj;jpaj;jpw;F cl;gl;lth; ,y;iy vd;gJk; Nkw;gb egh; tf;gpd; %y mwpf;ifapy; Fwpg;gplg;gl;Ls;s Riykhd; fhd; kahdh vd;gthpd; Neupilahd thhpR ,y;iy vd;gJk; Nkw;gb egh; ,Jehs; tiu Kj;jty;yp mq;fPfhuk; ,y;yhky; nray;gl;L tUtJk; Neub tprhuiz %yk; njhpatUfpwJ

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Kj;jty;yp mq;fPfhuk; ,y;yhky; nray;gl;L tUk; egiu ePf;fk; nra;J Nkw;gb tf;ig Neub eph;thfj;jpd; fPo; vLg;gJ njhlh;ghf jf;f cj;juT gpwg;gpf;fyhk; vd mwpf;if rkh;g;gpj;Js;shh;." The reasons stated by the respondents is that there is no order in favour of the petitioner's ancestors recognizing as Mutawalli and no documents are available in the Wakf Board. However, on perusal of the documents, it is seen that the Wakf Board had passed two orders, one in the year 1976 and another in the year 1989 recognizing the petitioner's ancestors as Mutawalli's. Therefore, the reasons cited by the respondents are incorrect. Without verifying the records and without conducing proper enquiry, the respondents have passed an order. Therefore, the impugned order is liable to the quashed.

¶7Moreover, under Section 64 of Wakf Act, Mutawalli can be changed and under Section 65 of the Wakf Act direct management can be ordered. But the respondents without intimating whether the Board has intended to appoint Mutawalli or intended to bring the Wakf under direct management has passed the impugned order. On this ground also the impugned order is liable to be quashed. Accordingly, the impugned order, dated 24.02.2023 and the consequential order, dated 10.03.2023, are hereby quashed.

¶8The respondents are directed to issue notice and also indicate whether they are intended to appoint Mutawalli or intended to bring the Wakf under direct management. The respondents shall grant adequate opportunity to the petitioner and thereafter to consider the issues such as whether Mutawalli has to be appointed or whether the Wakf ought to be brought under direct the management. Therefore, the respondents shall issue appropriate notice to the petitioner and all interested parties and afford an opportunity and thereafter, pass an order, in accordance with law. The said exercise shall be concluded within a period of 4 months from the date of receipt of a copy of the order.

¶9With these directions, this Writ Petition is allowed. No Costs. Consequently, connected miscellaneous petitions are closed. Index : Yes / No

14.08.2023 Internet : Yes NCC : Yes / No ksa To

¶1The Tamil Nadu Wakf Board, Rep. Through its Chief Executive Officer, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai.

¶2The Superintendent of Wakf, Tiruchirappalli.

¶3The Inspector of Wakf, Tiruchirappalli.

S.SRIMATHY, J ksa W.P.(MD)No.5717 of 2023

14.08.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.08.2023 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY W.P.(MD)No.5717 of 2023 and W.M.P(MD)Nos. 5321 & 5322 of 2023 Babu Khan Mohammed Sha Panna Di Bee Dargha, Represented by its Hereditary Mutawalli, Janab K.S.Abdul Salam. ... Petitioner −Vs. - 1. The Tamil Nadu Wakf Board, Rep. Through its Chief Executive Officer, No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai. 2. The Superintendent of Wakf, Tiruchirappalli. 3. The Inspector of Wakf, Tiruchirappalli. ... Respondents Prayer : Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records of the impugned order passed by the 1st respondent, published in Gazette Tamil Nadu Government Gazette No.7 dated 15.02.2023 in so for as the petitioner is concerned, referred in Page No.6 as No.VI-3(a)/5/2023 and the consequential impugned orders passed by the 1st respondent in Na.Ka.No. 9480/22/Aa5/Tiruchy dated 24.02.2023 and the order of the 3rd respondent in Na.Ka.G.S.748/Ni A/Va Aa/ Tiruchy/2023 dated 10.03.2023 and quash all the orders. [Prayer is amended as per Order of this Court, dated 25.07.2023] For Petitioner : M/s.H.Arumugam For Respondents : M/s.N.Mahideen Basha Standing Counsel