Writ Petition has been filed under section 226 of the Constitution of India to issue an order of Writ of Mandamus, directing the 1st and 2nd respondents herein to pass orders recognising the seven members including myself and Muthawalli of the Adhoc Committee of the Mosque as unanimously resolved by the Jamathars of the Mosque on 22.7.2011 to be incharge of the day to day affairs and administration of the Mosque till holding an election for constituting a regular Managing Committee of the Mosque as per Law pursuant to the Resolution of the Tamil Nadu Wakf Board itself passed in Item No.53 of 2009 RC
VINOD K. SHARMA, J.
ORDER
1. The petitioner has approached this Court with a prayer for issuance of a writ in the nature of Mandamus, directing the 1st and 2nd respondents to pass orders recognising the seven members Adhoc Committee including the petitioner as Muthawalli of the Adhoc Committee of the Mosque, as unanimously resolved by the Jamanthars of the Mosque on 22.7.2011, to look after the day to day affairs and administration of the Mosque till holding an election for regular Managing Committee of the Jamal Mohideen Masjid in accordance with law, pursuant to the Resolution passed by the Tamil Nadu Wakf Board.
2. The mosque was established and started in the year 1875 by one Jamal Mohamed Rawther for prayers, and to run Urdu and Arabic Madarasa (Schools). The rule of succession to the office of the Muthawalli was by election, which was earlier once in a year which is now once in three years as per established custom and usage.
3. It is submitted by the petitioner, that number of irregularities were committed by the present Management Committee of the mosque headed by its Muthawalli Mr. M.B.Khader Hussain, the third respondent herein. The irregularities were of misappropriation of funds of the mosque and falsification of accounts, etc.
4. The present Management Committee has been managing the mosque for the past 30 years, in view of the political support it commands, which has caused irreparable loss to the developments for the mosque. The irregularities were reported to the Tamil Nadu Wakf Board.
5. Based on the complaint, an enquiry was held and it was reported that the third respondent has been functioning beyond the tenure of three years. The committee headed by respondent No.3 was therefore not recognised by the Tamil Nadu Wakf Board.
6. It was ordered that election held as per the Proforma Report, within two months from the date of the order i.e. 29.03.2010, the election was ordered to be held by secret ballot.
7. In compliance with the direction of the Board, the Superintendent of Wakf, vide his letter dated 02.09.2010, directed the Muthawalli of the mosque to prepare the electoral roll for the election of the Managing Committee within 10 days. The electoral roll was to include the muslim residents above 18 years of age, living within the jurisdiction of Mohamed Pura Ward having 7 streets around and including Jamal Hussain Makkan Masjid and Kunjan Nagar Masjid. The Superintendent Wakf Board, did not take steps to hold the election, inspite of the resolution of the Tamil Nadu Wakf Board. The representations therefore were sent to the Tamil Nadu Wakf Board to hold the election. The Muthawalli however, notified on the notice board of the mosque, that the members of the Managing Committee will be selected on 15.07.2011.
8. It is submitted that this procedure was wrong, as in pursuance of the resolution of the Tamil Nadu Wakf Board, election was to be held by secret ballot. The petitioner has also questioned the right of the third respondent for calling the meeting on 15.07.2011.
9. The W.P. No.16360 of 2011 was filed by one of the members of the mosque, which was admitted by this Court, and interim stay was granted. It was after the interim order by this Court, that the petitioner along with six other members formed an Adhoc Committee with the consent of the Jamathdars. A representation was also sent to the first respondent, requesting him to issue order of appointment of the seven members committee.
10. It is the case of the petitioner that the counsel was informed that the order of appointment of Adhoc Committee will be communicated to the Tami Nadu Wakf Board for immediate follow up. 11. It is the submission of the petitioner, that the first respondent, being incharge of the Tamil Nadu Wakf Board did not take any action on the representation filed by the petitioner.
12. On the pleadings referred to above, learned counsel for the petitioner, vehemently contended that a writ in the nature of mandamus, be issued, directing the first respondent to recognise the Adhoc Committee for running the affairs of the mosque.
13. Learned counsel for the petitioner, also contended that the Chief Election Officer who has been now appointed, is bound under law, to implement the Resolution of the Wakf Board, but he has also failed to comply with the direction for holding election. The petitioner therefore is entitled to a direction by this Court, for holding of election and also for recognising the Adhoc committee constituted by the Jamat of Mohideen Mosque to look after the day to day affairs and administration of the Mosque, till holding of the election.
14. On consideration, I find that this Writ petition is totally misconceived. The function and administration of the Committee is controlled by the Board. It is for the Tamil Nadu Wakf Board to form the Adhoc Committee.
15. It cannot be disputed that the Chief Election Officer, is bound by the orders of the Board. The question for determination is, as to whether this Court can interfere to implement the orders of the Tamil Nadu Wakf Board, or whether the petitioner is to be relegated the remedy before the Wakf Tribunal.
16. The answer to the question would be that this Court cannot interfere with the working of Wakf, as all matters regarding Wakf fall within the jurisdiction of Wakf Tribunal.
17. The Wakf Tribunal therefore has the jurisdiction and this Court cannot interfere with the orders passed by Wakf, as the statute itself provides the remedy.
Section 83, (1) and (2) of the Wakf Act, 1995, reads as follows:
' 83. Constitution of Tribunals, etc. -- (1) The State Government shall by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.
(2) Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf.'
The Hon'ble Supreme Court in Civil Appeal No.5297 of 2004 decided on 23.11.2010 [Board of Wakf, West Bengal vs. Anis Fatma Begum & anr.] has been pleased to lay down as under:
'10. In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straight away under Article 226 of the Constitution of India.'
A Division Bench of this Court, in the case of Salam Khan vs. The Tamil Nadu Wakf Board & Ors., [2005-1-LW 676], has also taken a view that the remedy for the petitioner, is to approach the Tribunal, which can deal with all type of disputes, including the one raised in this petition.
18. The finding of the Division Bench reads as under:
'6. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.
....
8. Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules, 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party of there is any dispute, question or other matter relating to a wakf or wakf property.'
This view was followed by the Hon'ble Division Bench of this Court in the case of Mukram Sherif vs. Moinudeen Sheriff & anr. , [2005-2-LW 615] , holding that,
'2. It has been held by a Division Bench of this Court, to which one of us (Markandey Katju, Chief Justice) was a party, in W.A. No.2344 of 2000 and W.P. Nos. 12710 and 15945 of 2000 (Salam Khan v. The Tamil Nadu Wakf Board), decided on 31.1.2005 , reported in 2005-1-LW 676, that all disputes relating to wakf should be filed in the first instance before the Wakf Tribunal, constituted under Sec.83 of the Wakf Act, 1995 and the writ petitions should not be entertained directly by this Court under Art.226 of the Constitution as there is alternative remedy. Against the aforesaid judgment of the Division Bench of this Court, a Special Leave Petition, viz., SLP (C) No.4156 of 2005, was filed in the Supreme Court and the said Special Leave Petition was dismissed. '
19. In view of the settled proposition of law, this writ petition is not maintainable as the petitioner has the remedy to approach the Wakf Tribunal. The writ petition is accordingly dismissed. Consequently, the connected M.P is closed. No costs.