In view of the fact that the issues involved in these two Writ Petitions are overlapping, they have been taken up together and a common order is passed.
2.By a registered Document No.1085 of 1910, dated 14.02.1910, a Wakf was created by late Mr.A.H.M.Khader Hussain Sahib along with his two sons. A Writ Petition was filed in W.P.No.36258 of 2007 by A.Mohamed Salem Khan and two others, seeking a writ of mandamus directing the Chief Executive Officer and the Superintendent of Wakfs to get the registration of the Wakf property which is the subject matter of Document No.1085 of 1910, dated 14.02.1910. In W.P.No.36258 of 2007, dated 09.01.2008, this Court has passed an order directing the respondents 2 and 3 therein to complete the process of registration of properties as Wakf properties after conducting a proper enquiry. In pursuance to the directions issued, the second respondent has registered the properties as Wakf properties. The said order was challenged by the petitioner in W.P.No.262 of 2010 by filing a Writ Petition in W.P.No.26252 of 2008. This Court by the order dated 22.01.2009 was pleased to set aside the order of registering the properties as Wakf properties on the sole ground that the petitioner in W.P.No.262 of 2010 has not been heard.
3.In the meanwhile, some third parties filed a Suit in O.S.No.119 of 2006 before the Wakf Tribunal, Villupuram seeking declaration for “A” Schedule property and for the consequential injunction. A further prayer has been sought for declaration that the suit properties should be Wakf properties and 'B' Schedule properties should not be used by the defendant Nos.1 and 2 contrary to the Wakf created. A further prayer for permanent injunction restraining the defendants 1 and 2 from alienating the suit properties was also sought for. By the judgment and decree passed in the month of April 2009, the Suit filed was dismissed. Thereafter, the order impugned in W.P.No.262 of 2010 has been passed on 03.11.2009 by the respondent-Wakf Board rejecting the objections of the petitioner with a direction to the Muthawalli of the Wakf to register the Wakfs. Liberty was also given to the third parties to initiate action under Section 36 of the Wakf Act, 1995 for registration. Challenging the same, the Writ Petition in W.P.No.262 of 2010 has been filed.
4.After filing of the Writ Petition in W.P.No.262 of 2010 and after the passing of the order impugned dated 03.11.2009, attempts have been made by the petitioner to alienate some other properties to non-muslims. Steps were taken by the petitioner to register the sale deeds entered into with third parties. Objections were given by the petitioner in W.P.No.16916 of 2011 being the Muthawalli of Wakfs. The objections were sustained in the light of Section 22-A of the Registration Act, 1908. Thereafter, the said decision was overturned by the Sub-Registrar by taking note of the decision rendered in O.S.No.119 of 2006, to proceed with registration. Challenging the same, the Muthavalli of the Wakf has filed the Writ Petition in W.P.No.16916 of 2011.
5.The facts narrated above are not in dispute. Admittedly, the Wakf has been created by a registered deed bearing Document No.1085 of 1910, dated 14.02.1910. The Wakf Deed mentioned about the purpose and object for its creation. A perusal of the object of the Wakf as seen from the Wakf Deed would show that the same has been created to maintain the Mosque, Chatiram, Pond, to perform annual fathiha to Ahim Ali Sahib, Ayisha Khanam Ammal, Sadhaq Hussain Sahib and for his descendants, to maintain the tomb, apart from other religious and pious obligation. The Suit has been filed by third parties who are not parties to the proceedings in these two Writ Petitions. Of the two third parties, one is a non-muslim being a Hindu. The prayer sought for in the Suit includes a specific prayer to protect their possession. The Wakf Tribunal in O.S.No.119 of 2006 was pleased to hold that the non impledment of Wakf represented by muthawalli was not proper. A specific stand was taken by the petitioner in W.P.No.262 of 2010 that the Suit was not maintainable and the Wakf Tribunal has also observed that the registration of a Wakf can only be done by the Wakf Board under Section 40 of the Wakf Act, 1995. Observing all these, the suit was dismissed.
6.Mrs.Hema Sampath, the learned senior counsel appearing for the petitioner in W.P.No.16916 of 2011 submitted that admittedly there is a Mosque. It is not in dispute that the Suit was filed by the third parties. The Wakf represented by the petitioner has not been made as a party as indicated in the judgment rendered. Therefore, in the absence of petitioner being made as a party, the same is not binding on it. There is overwhelming evidence to show that it is a public Wakf. The third respondent in W.P.No.16916 of 2011 has passed the order impugned without taking note of the provisions contained under Section 40 of the Wakf Act, 1995, Section 22-A of the Registration Act, 1908, coupled with Section 51 of the Wakf Act, 1995 prohibit such a transfer being opposed to public policy. The order impugned has been passed without affording an opportunity to the petitioner. When the third respondent has refused registration on the earlier occasion based upon the objections of the petitioner, the order impugned ought not to have been passed merely based upon the dismissal of the Suit filed by the third parties, in which, the petitioner was not a party and that too without affording an opportunity. As the order impugned in W.P.No.262 of 2010 is legally valid, consequentially the Writ Petition filed in W.P.No.16916 of 2011 will have to be allowed as the petitioner in the earlier Writ Petition does not have the title or authority to make an alienation. Hence, the learned senior counsel submitted that the Writ Petition filed in W.P.No.16916 of 2011 will have to be allowed and the Writ Petition filed in W.P.No.262 of 2010 will have to be dismissed.
7.The learned counsel appearing for the petitioner in W.P.No.262 of 2010 vehemently contended that in view of the decision rendered in O.S.No.119 of 2006, the order impugned dated 03.11.2009 will have to be set aside as the Wakf Board is also a party. The principle of res judicata is applicable even to the co-defendants. In law, there is no prohibition to have a private Mosque. A perusal of the registered Wakf Deed would lead to the conclusion that what is primarily intended is the enjoyment of the properties by the descendants. Therefore, the petitioner being a descendant is entitled to enjoy the property as a Wakf property. In so far as the Writ Petition filed in W.P.No.16916 of 2011 is concerned, the same will have to be dismissed as a consequence of setting aside the order impugned in W.P.No.262 of 2010. In support of his contentions, the learned counsel has made reliance upon the following judgments: “K.VELAYUDHAM PILLAI vs. T.VELAYUTHAM PILLAI [(2009) 1 MLJ 74]
FUAAD MUSVEE vs. M.SHUAIB MUSVEE [2008 (4) CTC 59]
TAMIL NADU WAKF BOARD vs. LARABSHA DARGA, PANRUTI
[(2007) 13 SCC 416]
MUSAHEB KHAN vs. RAJ KUMAR BAKSHI [AIR 1938 OUDH 238]”
8.Per contra, Mr.V.Lakshminarayanan, learned counsel appearing for the Wakf Board submitted that these Writ Petitions are not maintainable in law and facts. Section 40 of the Wakf Act, 1995 provides exclusive power for the Wakf Board to decide as to whether the property is a Wakf property or not. The said exercise having been done, the only course open to the petitioner in W.P.No.262 of 2010 is to approach the Wakf Tribunal. This Court while exercising the power under Article 226 of the Constitution of India, cannot go into the disputed questions of fact. The decisions relied upon by the learned counsel for the petitioner are not applicable to the facts on hand. There is a presumption regarding the public Wakf. Once a founder dedicates the site and a Mosque for the public worship. Considering the clear recitals in the Wakf Deed, there is no dispute that the Wakf is a public Wakf. The decision rendered by the Civil Court has got no application as the same cannot overreach the provisions contained under Section 40 of Wakf Act, 1995. In support of his contentions, the learned counsel has made reliance upon the following judgments: “SYED MOHD. SALIE LABBAI vs. MOHD. HANIFA [AIR 1976 SC 1569]
G.S.T.SHAIK MOHIDEEN SAHIB vs. THE STATE WAKF BOARD AND ANOTHER
[(1968) 2 MLJ 144]
AZIMUNNISA BEGUM vs. SIRDAR ALI KHAN [(1927) 29 BOMLR 434]
ABDUL SATTAR ISMAIL vs. ABDUL HUMID SAIT [AIR 1944 MAD 504]”
9.As submitted by the learned counsel appearing for the respondents. When the statute specifically provides for an effective alternative remedy, this Court shall not exercise the discretionary and extraordinary jurisdiction under Article 226 of the Constitution of India. Admittedly, there are disputed questions of facts involved. The construction of a document executed in the year 1910 can only be done before Wakf Tribunal being a competent civil forum. Similarly the question as to whether there are two Mosques or a single Mosque and the said Mosque is a public Mosque or a private Mosque is also a disputed fact. Admittedly, the earlier Suit was filed by the third parties against the petitioner in W.P.No.262 of 2010. In that Suit, the petitioner in W.P.No.16916 of 2011 was not a party as observed by the Court.
10.Further, the question of registration under Section 40 of the Wakf Act, 1995 is not the subject matter of the Suit. The admissibility and relevancy of judgment and decree rendered in O.S.No.119 of 2006 will have to be seen as an evidentiary value before the Wakf Tribunal. Challenging the judgment and decree rendered in O.S.No.119 of 2006 and seeking leave for a revision petition is filed by the petitioner in W.P.No.16916 of 2011. Therefore, how far the decision rendered by the Civil Court is binding on the petitioner in W.P.No.16916 of 2011 has to be decided either by this Court in the pending revision or by the Wakf Tribunal. Certainly, the same cannot be decided by this Court under Article 226 of the Constitution of India, more so when the case involves disputed questions of fact and when there is an alternative remedy available under the statute.
11.The decisions relied upon by the learned counsel for the petitioner in W.P.No.262 of 2010 are all emanating from the civil proceedings. The petitioner has not stated as to why he has not approached the Wakf Tribunal for the appropriate relief. The contentions of the learned counsel for the petitioner based upon the averments made in the document executed in 1910, is not required to be looked into by this Court. This Court is primarily concerned with the decision making process adopted by a public authority while dealing in a writ of certiorari. The further question as to whether the mandate of Section 40 of the Wakf Act, 1995 has not been complied with or not also will have to be canvassed and contested before the Wakf Tribunal. The earlier order passed by the Wakf Board was set aside by this Court only on the ground of violation of principles of natural justice.
12.Therefore, this Court is of the considered view that the Writ Petition filed in W.P.No.262 of 2010 will have to be dismissed, giving liberty to the petitioner to approach the Wakf Tribunal. Accordingly, the Writ Petition filed in W.P.No.262 of 2010 is hereby dismissed, giving liberty to the petitioner to file an appropriate appeal before the jurisdictional Wakf Tribunal, within a period of eight (8) weeks from the date of receipt of a copy of this order. As and when, such an appeal is filed by the petitioner, within the time granted by this Court, the concerned Wakf Tribunal is directed to decide it on merits and in accordance with law, without going into the issue of limitation. Considering the nature of disputes involved, the Wakf Tribunal is directed to issue a notice to the muthawalli of the Wakf, who is a petitioner in W.P.No.16916 of 2011 before deciding the case. This order is also passed without prejudice to the rights of the petitioner in W.P.No.16916 of 2011 to agitate its rights in the pending revision, challenging the judgment and decree in O.S.No.119 of 2006. The Wakf Tribunal is also directed to decide the appeal to be filed by the petitioner in W.P.No.262 of 2010 without being influenced by any of the observation made by this Court in this order.
13.In so far as W.P.No.16916 of 2011 is concerned, in consequent to the dismissal of the order in W.P.No.262 of 2010, the same is required to be allowed. The registration of the Wakf in pursuant to the order impugned dated 03.11.2009 passed by the Wakf Board is nothing but a consequential one. In the affidavit filed in support of the Writ Petition in W.P.No.16916 of 2011, it has been stated that the Wakf has been registered with Registration No.218 of 2011. If the petitioner in W.P.No.262 of 2010 is allowed to sell the properties, the same would notwithstanding the order dated 03.11.2009, lead to unnecessary third party interest. Until and unless the order dated 03.11.2009 passed by the Wakf Board is set aside, modified or varied, the petitioner in W.P.No.262 of 2010 does not have a legal right to sell the properties. Further, the third respondent in W.P.No.16916 of 2011 ought not to have passed the order impugned without even hearing the petitioner therein that too merely based upon a decision rendered by the Civil Court. Further, the said case has been filed by the third parties for other reliefs. Therefore, the order impugned in W.P.No.16916 of 2011 dated 11.07.2011 passed by the third respondent is hereby set aside and consequentially, the said Writ Petition is allowed. It is made clear that in the event of succeeding, before the Wakf Tribunal, it is open to the petitioner in W.P.No.262 of 2010 to approach the third respondent for appropriate relief by enclosing the order to be passed.
14.In the light of the discussions made above, the Writ Petition in W.P.No.262 of 2010 is dismissed and W.P.No.16916 of 2011 is allowed with the above observations. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.