@JUDGMENTTAG-ORDER
Honourable Mr. Justice Vinod K. Sharma
1. The Petitioner has approached this Court with the prayer for issuance of a writ in the nature of mandamus, directing the Respondents 2 and 3 herein to provide adequate police protection for the discharge of the Petitioners duties, as the Muthavalli of the Hazarath Syed Sha Rahamathullah Sahib Wakf Thaikal Anaikaran Chathiram, as also for protecting the Cattle Chandy and other Wakf properties from unlawful acts of the removed Muthavalli Syed Ghulam mohideen. The respondent No.2 and 3 to whom representation has been filed by the petitioner, are not competent authority to provide police protection. The respondents 2 and 3 can only register F.I.R. on a complaint, if cognizable offence is disclosed.
2. The stand of the State is that on the complaint filed by the petitioner, F.I.R. has been registered against the respondent No.4 & 5.
3. The affidavit filed in support of the writ petition reads as under:
I, Syed Murtaza Basha, Son of Syed Edullah Sahib, Muslim, aged about 55 years, residing at No.6A, Dargah Street, Tahikkal, A.K.Chatiram P.O., Kollidam, Nagapattinam District 609 102, and presently come down to Chennai, do hereby solemnly affirm and sincerely state as follows:
1 I submit that I am the petitioner hereby and I am acquainted with the facs of the case.
2 I submit that the "Hazrath Syed Shah Rahmathulla Wali Wakf" popularly known as "Pakkiri Thaikkal" situated at Thaikkal in Kollidam, Nagai District is Public Wakf and it is governed by the Scheme Decree in A.S.No.419 of 1924. As per the Scheme Decree, the ruleof succession to the Office of Muthavalli of the Wakf is Hereditary and the eledest male member of the family shall be entitled to function as Muthavallee of the Wakf.
3 I submit that the above Wakf is possessed with vast properties and the same are in encroachment by various encroachers. I submit that originally my father, Syed Eddullah Sahib was functioning as the Muthavalli of the Wakf till his life-time. After his life-time, my elder brother Mr.Syed Gulam Mohideen had succeeded to the post of Muthavalli and the said Syed Gulam Mohideen was functioning as Muthavalli of he Wakf.
4 I submit that I had filed an application before the 4th respondent viz., Tamil Nadu Wakf Board, for appointing me as the Muthavalli of the Wakf, since there were misdeeds committed by Mr.Syed Gulam Mohideen. The 4th respondent Wakf Board was pleased to enquire into the matter and as per order dated 22.04.1991, my brother Mr.Syed Ghulam Mohideen and myself were appointed as Joint Muthavallies of the Wakf for a period of one year and subsequently the same arrangement was confirmed by the Wakf Board.
5 I submit that inspite of the order passed by the 4th respondent wakf Board that myself and my brother will be the joint muthavallies of the wakf, my elder brother Syed Gulam Mohideen was dominating his position and has completely ousted me from performing the post of Joint Muthavalli and further he was thoroughly mismanaging the affairs of the Wakf by alienating the Wakf properties, creating unlawful encumbrances in respect of the Wakf properties and committed various acts of misfeasance and malfeasance and making personal gains out of the wakf properties. As such, in view of my elder brother Syed Gulam Mohideen''s attitude and unlawful activities, which were detrimental to the interest of the wakf and such activities were unabated. I was constrained to prefer an application before the 4th respondent Wakf Board in W.E.A. No.6 of 2005 to remove my elder brother Syed Gulam Mohideen from the post of Muthavalli and appoint me as the sole Muthavalli. When the enquiry was pending before the Wakf board, my elder brother Mr.Syed Gulam Mohideen challenged the proceedings initiated by the Wakf Board before Hon''ble High Court, stating that the 4th respondent Wakf Board have no jurisdiction to initiate the proceedings and further contended that it is a private wakf (Wakf-al-aulad). This Hon''ble Court was pleased to give a direction that even the said plea raised by my elder brother Mr.Syed Ghulam Mohideen can be raised and agitated by him during the course of enquiry before the 4th respondent/Wakf Board. Thereafter, the 4th respondent wakf Board conducted a detailed enquiry and was pleased to pass an order removing my elder brother Mr.Syed Gulam Mohideen from the post of Muthavalli of the Wakf and appointed me as the sole Hereditary Muthavalli of the Wakf by its order dated 14.10.2008 in W.E.A.No.6 of 2005 and since then I have been functioning as the Muthavalli of the Wakf till today without any complaint from any quarters and I have been maintaining proper accounts of the Wakf and submitting the same for periodical inspection and I have also been paying the contribution to the 4th respondent/Wakf Board every year.
6 I submit that the order passed by the 4th respondent/Wakf Board appointing me as the Muthavalli of the Wakf was once again challenged by my brother Mr.Syed Gulam Mohideen in W.P.No.25396 of 2008 before this Court. I submit that the said writ petition was dismissed on merits by this Court holding that the order passed by the 4th respondent /Wakf Board is perfectly valid before the eye of law. This Court was further pleased to hold that it is a Public Wakf and the claim of my brother Mr.Syed Gulam Mohideen that it is a private wakf is not a valid one. As against the said order, Mr.Syed Gulam Mohideen preferred an Appeal in W.A.No.74 of 2009, in the said Writ Appeal the Hon''ble Division Bench of this court was not inclined to grant stay and as such I have been continuing as the Muthavalli of the wakf. I submit that when the matter came up before this court, the counsel for Syed Gulam Mohideen has withdrawn the writ appeal with a liberty to file an appeal before the Wakf Tribunal, Nagapattianam and hence the Hon''ble Division Bench of this Court was pleased to dismiss the writ appeal.
7 I submit thereafter my brother Syed Gulam Mohideen, has filed the appeal against the order passed by the 4th respondent/ Tamil Nadu Wakf Board dated 23.11.2008 before the Wakf Tribunal, Nagapattinam in W.O.P.No.9 of 2010. I submit that initially the Syed Gulam Mohideen when he was functioning as the Muthavalli of the wakf has given leasehold rights in respect of cattle market by receiving Rs.1,50,000/-. Subsequently, after when myself was appointed as the sole Muthavalli, I have settled the matter with the leaseholder by repaying the said sum of Rs.1,50,000/-and retrived the Wakf property and I am in management of the same. At that point of time, my elder brother Syed Gulam Mohideen who is having political influence and with the help of police officials had threatened me to give an undertaking before the Police authorities and obtained an undertaking before the police authorities by threat and coercion and hence the same has no legal validity before the eyes of law. I further submit that the Ghulam Mohideen has not surrendered the account books belonging to the Wakf as well as attempted to disturb my management of the Wakf properties. I was constrained to file Crl.M.P.No.4292 of 2010 before the Hon''ble Judicial Magistrate, Sirkali, seeking to initiate criminal action against the Syed Gulam Mohideen for non submission of account books and other relevant records u/s 68 of the Wakf Act, 1995.
8 I submit that the Hon''ble Judicial Magistrate, Sirkali, on an erroneous appreciation of facts, was pleased to dismiss the above Criminal Miscellaneous petition and as against the said order I have filed a Revision petition before this Court in Crl.R.C. No.736 of 2011.
9 I submit that since the Judicial Magistrate, Sirkali was pleased to give a finding that in the light of the order passed in W.A.No.74 of 2009. I was removed from the post of Muthavallee, hence I have filed an application for interim stay of the operation of the order passed by the Judicial Magistrate, Sirkali, in Crl.R.C.No.736 of 2011. I submit that in the Stay application, the this Court was pleased to grant interim stay of the operation of the order. I submit that I have been functioning as Muthavalli of the Wakf viz., M/s.Hazarath Syed Sha Rahamathullah Sahib Thaikal, Anaikaran Chathiram.
10 I submit that the Syed Ghulam Mohideen by exercising influence with the 2nd and 3rd respondents and by using muscle power is trying to collect the rents from the tenants and collecting rents from cattle chandy all belonging to the Wakf, and he is indulging in unlawful activities which are detrimental to the interests of the Wakf. I submit that the said removed Muthavalli Syed Ghulam Mohideen is collecting all the rental incomes from and out of the Wakf properties and appropriating the same to his personal benefits, which is against the order passed by the 4th respondent/Tamil Nadu Wakf Board as well as against the interest of the Wakf.
11 I submit that recently when I connected rents from the users from the cattle chandy, Syed Ghulam Mohideen, his son and their henchmen have attacked me with deadly weapons with an intention to kill me. I was immediately admitted in Government Hospital and thereafter FIR was also laid by the 3rd respondent viz., The Inspector of Police, Anaikaran Chatiram Police Station in Crime No.301 of 2011 dated 18.06.2011, but thereafter the 3rd respondent has not taken any action till date.
12 I further submit that when I have requested to give police protection for performing my duties as Muthavalli of the above Wakf M/s.Hazarath Syed Sha Rahamathullah Sahib Thaikal, anaikaran Chatiram, the 3rd respondent insisted that I should obtain a Court order, so as to provide police protection to me.
13 I submit that thereafter, I have sent letter to the 4th respondent Wakf Board to forward a letter to the 2nd and 3rd respondents requesting to give police protection for performance of Sandal and Urs festival of M/s.Hazarath Syed Sha Rahamathullah Sahib Thaikal, Anaikaran Chatiram. I submit that the 3rd respondent/Wakf Board has also written a letter to the 2nd and 3rd respondents requesting them to provide police protection for me in performance of the Sandal and urs festival held between 03.07.2011 to 14.07.2011.
14 I submit that though I am functioning as Muthavalli of the Wakf M/s. Hazarath Syed Sha Rahamathullah Sahib Thaikal, Anaikaran Chatiram and the said fact was duly confirmed by the 4th respondent/Wakf Board, Syed Ghulam Mohideen, is high handedly collecting rents from the cattle chandy and from some wakf properties and the same is against law. I submit that the 2nd and 3rd respondents are having an obligation to provide police protection in the event of any obstruction put forth by Mr.Ghulam Mohideen in my performance of duties as Muthavalli of M/s.Hazarath Syed Sha Rahamathullah Sahib Thaikal, Anaikaran Chatiram as well as collecting rents from the cattle chandy and other wakf properties. I submit that inspite of the various requests made to the 2nd and 3rd respondents, the 2nd and 3rd respondents have not inclined to take any action so far against the said Syed Ghulam Mohideen.
15 I submit that as the 2nd and 3rd respondents failed to provide policed protection for maintaining the cattel chandy and other wakf properties, I was constrained to issue a legal notice to the respondents 2 and 3 with copy to the 4th respondent Wakf Board, on 29.08.2011, once again requesting the 2nd and 3rd respondents to provide necessary police protection for carrying on my functions as the Muthavalli of M/s.Hazarath Syed Sha Rahamathullah Sahib Thaikal, Anaikaran Chatiram viz., in administering the properties and collecting the rents from the cattle chandy and other walf properties and also to take appropriate action against the illegal and unlawful acts committed by the said Syed Ghulam Mohideen, against my performance of my duties as the Muthavalli of M/s. Hazarath Syed Sha Rahamathullah Sahib Thaikal, Anaikaran Chatiram. I submit that though the 2nd and 3rd respondents receiving the said notice dated29.8.2011 so far as they have not taken any effective action either to given police protection to me orto take action against the removed Muthavalli Mr.Syed Ghulam Mohideen who is persisting to thoroughly interfere with the administration of the wakf making wrongufl gains for himself.
16 Hence under these circumstances, I pray this Court may be pleased to issue a writ of mandamus, directing the respondents 2 and 3 herein to provide adequate police protection for the discharge of my duties as the Muthavalli of the Wakf and also for protecting the cattle chandy and other wakf properties from unlawful acts of the said removed Muthavalli Syed Ghulam Mohideen in accordance with law.
4. The reading of the affidavit even if taken on its face value shows that the allegation against the respondent No.5, are that he isunauthorisedly collecting rent from the tenants of the Wakf properties. This does not justify the grant of police protection. The petitioner has remedy to register F.I.R. against illegal activities of respondent No.5 which already stands registered by the respondent No.2 The petitioner can also approach civil Court for necessary relief. The averments certainly do not make out a case for grant of police protection.
5. In any case, the prayer to grant police protection, in pursuance to the representation, which admittedly is filed with the respondent No.2 and 3 who are not competent authority to provide police protection cannot be granted. Consequently, finding no merit, the writ petition is ordered to be dismissed.
No cost.
