Decided on January 03,1970

T.E. Mohammed Shareef Appellant
The Superintendent (Wakfs), Central Zone And Ors. Respondents


Ismail, J. - (1.) ACCORDING to the averments contained in the affidavit, the petitioner herein, is the Mutavalli of the institution known as Kuppatheruvu Pallivasal in Thanjavur. According to him, the property covered by T. S. No. 33 -C is the only property belonging to the Wakf and the properties covered by T. S. Nos. 33/2 to 33/15 are his private properties.
(2.) The further case of the petitioner is that some persons inimically disposed towards him moved the Wakf Board in W. A. 41 of 1962 for the framing of a scheme and removal of the petitioner from the office of Mutavalli on the ground of mismanagement and on the ground that the petitioner was claiming adverse to the interests of the wakf. The affidavit further states that the Board was not satisfied with the general allegations of mismanagement against the petitioner, but found one instance of alienation of the trust property as improper and on that basis removed the petitioner from the office of mutavalli. At the same time, the Board, in regard to the properties covered by T. S. 33/2 to 33/15, did not decide the question as the whether they are the wakf properties or the private properties belonging to the petitioner, in view of the amendment introduced to Section 27 of the Wakf Act, 1954, providing for the settlement of the dispute by a civil Court. The petitioner states that he filed W. P. 1603 of 1965 challenging the decision of the Wakf Board removing him from mutavalliship on various grounds and this court allowed the said writ petition on a short ground that there was not enough quorum for the Board to pass the order and thus set aside the order of removal. After the order was quashed, the matter was heard again by the Wakf Board and the Board by its order dated 9th April 1967, which was communicated to the petitioner by the secretary, informed the petitioner that the Board was not going into the merits of the case and it dismissed the petition filed before it, directing the petitioners therein to file a fresh petition, if advised. After this, a second petition, based on the same allegations, is said to have been filed by the Action Committee and the petitioner has filed his counter. The affidavit proceeds to state that the said petition has not yet come up for hearing and the matter is still pending before the Wakf Board in Petition No. 25 of 1967 and at the time the present writ petition was filed on the file of this court, the said petition was posted to 28th July 1968. Though interim orders had been prayed for on the petition before the Board, the Board has not passed any interim orders in the matter and the petitioner has not yet been heard at all. It is under these circumstances, the Superintendent of Wakfs. camping at Thanjavur, on 28th May 1968, sent the following notice to the tenants of the properties in question: "The lands and buildings located in T. S. 33/2 to 33/15 in Gandhiji Road, Thanjavur, and T. S. 1598/1 and 1598/2 in Cutchery road, Thanjavur and the house bearing door No. 15 in Sivaraji Nagar stand registered in the name of the Jumma Masjid (Kuppatherupallivasal) and Thiru T. E. Mohammed Sharif Saheb of Thanjavur who was entrusted to collect rents etc. of the shops in the capacity of the mutavalli of Jumma Masjid has failed to submit proper accounts and pay the contribution amount due to the Board for the past ten years and thus contravened several provisions of the Wakf Act of 1954. Action is being taken to remove him from the Mutavalliship. In the meantime you one of the tenants of the wakf properties are hereby requested not to pay the rent to the said T. E. Mohammed Sharif from the date of this notice and to deposit rent in the name of the secretary to the Special Officer for Wakfs. Madras through one of the banks or through the Wakf Inspector Thanjavur failing which, please note that appropriate legal proceedings will be taken against you to vacate you from the said premises through due process of law. You will also be held liable for costs and mesne profits from the date of your possession." It is after the issue of this notice, the petitioner has come to this court with a prayer for the issue of a writ of Mandamus forbearing the first respondent herein, namely, the Superintendent (Wakfs) Central Zone, Khalif Mahal, Tiruchirapalli, from interfering with the petitioner's possession of the property in S. Nos. T. S. 33/2 to 33/15 and other properties belonging to Kuppatheru Pallivasal in pursuance of the said notice.
(3.) NO counter -affidavit has been filed in this case and hence for the limited purpose of the prayer in this writ petition, I must proceed on the basis that the averments contained in the affidavit filed in support of the writ petition are correct. Consequently the question for determination is whether the first respondent had nay jurisdiction to issue the notice on 28th May 1968. Needless for me to point out that the said notice definitely interferes with the petitioner's management of the properties in question. Therefore, the point for consideration is whether such an interference is authorised by the statutory provisions concerned. The Superintendent of Wakfs Act, 1954 (Central Act 29 of 1954). There is nothing to show whether the Wakf Board or the Special Officer of Wakfs had authorised the Superintendent to issue such a notice. It is admitted that the Superintendent is functioning only as an officer of the Wakf Board. If so, the immediate question that arises is, whether, as an officer of the Wakf Board, the Superintendent has got any power or jurisdiction to issue this notice. I am of the opinion that the Superintendent of Wakfs has no power whatever to issue any such notice. Further, even the Wakf Board will have no jurisdiction whatever to issue any such notice. The Wakf Board being a creature of the statute, its powers and jurisdiction have to be traced within the four corners of the statute and there is no provision whatever in the Wakfs Act conferring power on the Wakf Board to issue a notice of the type with which we are concerned. As I have already pointed out, the effect of this notice is to interfere with the management of the properties in question by the petitioner herein. The notice referred to already mentions that action is being taken to remove the petitioner from the Mutavalliship and the petitioner had not paid contribution to the Wakf Board and had failed to submit proper accounts to the Wakf Board. In my view, the Board has no jurisdiction to interfere with the administration of the properties by the petitioner on the ground that he has failed to submit proper accounts and also failed to pay the contributions; nor is the Board justified in interfering with the said administration on the ground that action is being taken to remove him from mutavalliship. The Wakfs Act was passed to provide for the better administration and supervision of wakfs and only with that object in view the Wakf Board was constituted. However, it is unfortunate that necessary provisions have not been made in the statute to make this power of supervision effective, as far as the Wakfs are concerned, It is only because of this Srinivasan J. in his judgment D/ - 19 -11 -1968 in W. P. No. 972 of 1961 (Mad) - -M. Mohammed Latif Sahib v. Madras State Wakf Board by its Secretary - -after elaborately surveying the provisions of the Wakfs Act came to the conclusion that the Board had no jurisdiction to give a direction of this nature. In that particular case, a person was appointed to collect the rents and deposit the same into the office of the Wakf Board. The order passed by the Board was - - In the circumstances mentioned in the petition, the petitioner is authorised to collect the rents from the tenants and pay into the Wakf Board office once a month after deducting collection charges of Rs. 30 a month and a further sum of Rs. 15 for a part time clerk to maintain the accounts." The petitioner referred to in the extract was the person who moved the Board against the Mutavalli. When the mutavalli filed the writ petition challenging this order of the Wakf Board, Srinivasan, J. came to the conclusion that the Board had no jurisdiction whatever to pass that order. The learned Judge pointed out that the order definitely interfered with the possession and management of the wakf properties by the Mutavalli and there was no provision whatever in the statute to authorise the Wakf Board to issue such a direction.;

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