@JUDGMENTTAG-ORDER
N. Paul Vasanthakumar, J.@mdashBoth the cases are posted before this Court as ''Specially Ordered Cases''. Both the cases relate to registration of the Wakf called Masjid-e-Ilahi Mosque & Madrasa Wakf and hence disposed of by this common order.
2. In W.P. No. 18924 of 2008 the Petitioner has prayed for quashing the order of the third Respondent dated 21.7.2008 registering the Wakf viz., Masjid-e-Ilahi Mosque & Madrasa Wakf.
3. C.R.P.(PD) No. 2397 of 2008 is filed against the order made in I.A. No. 9751 of 2008 dated 9.7.2008 in O.A. No. 5 of 2008 on the file of the Wakf Tribunal/I Assistant Judge, City Civil Court, Chennai.
4. The brief facts necessary for disposal of both the cases are as follows:
(a) The 4th Respondent in writ petition and the sole Respondent in the civil revision petition filed O.A. No. 5 of 2008 before the Wakf Tribunal u/s 83(1) and (2) of the Wakf Act, 1995 praying for permanent injunction restraining the writ Petitioner Association and its men from in any manner demolishing, constructing, altering the nature or dealing in any manner in this regard with the property of Masjid-e-Ilahi Mosque & Madrasa Wakf at No. 10, Drowpathi Amman Koil Street, Velacherry, Chennai-42 and for mandatory injunction directing the first Respondent/writ Petitioner to make good the loss by replacing the illegally removed doors and windows and repairing the building at their cost and to appoint receiver to maintain and administer the said Mosque and Wakf.
(b) Along with the said application I.A. No. 9751 of 2008 was also filed praying for an interim injunction restraining the Respondent or their men and agents from in any manner demolishing, constructing, altering the nature or dealing in any manner in this regard with the said property.
(c) The writ Petitioner Association opposed the said IA by filing counter affidavit contending that the said Mosque is managed by the Managing Committee of the Islamic Welfare Association and the Association is registered under the Tamil Nadu Societies Registration Act, 1975. The Association purchased various lands under various documents and constructed the Mosque by raising funds. The Mosque was constructed in the year 1976 in a thatched shed and reconstructed in June, 1984 and expanded in December, 1988 and also during March, 2004. The Corporation of Chennai granted exemption from paying property tax.
(d) The Wakf Tribunal by order dated 7.7.2008 held that the writ petition property is a Wakf and Section 2 of the Wakf Act is applicable to all Wakf created after the commencement of the Wakf Act, 1995. u/s 83(1) and (2) all disputes arising in and relating to Wakf can be decided only by the Wakf Tribunal. In the said order a direction was issued to the effect that on the application submitted the Wakf Board shall register the writ petition property as Wakf within a week.
(e) The said order made in the IA is challenged in the revision petition on the ground that the said direction given to register the Wakf is without reference to any prayer made in the IA and therefore the Tribunal exceeded its jurisdiction and consequently the said order is to be set aside.
(f) According to the writ Petitioner, pursuant to the said direction issued by the Wakf Tribunal the Wakf was registered on 21.7.2008 without issuing notice to the Petitioner and the said registration is challenged in the writ petition by contending that the Petitioner association purchased lands under various sale deeds dated 7.5.1976, 29.8.1977 and 23.2.1998 and constructed the Mosque by raising funds from affluent people of the neighbourhood and of the community and subsequently the Mosque was expanded.
(g) The property belongs to the association and the Mosque constructed is having capacity of over 1000 people to offer prayer. The day-to-day affairs of the association and the Mosque are managed by the Managing Committee which was elected by way of election at regular intervels and the Association is maintaining all accounts and the same is audited annually.
(h) It is further stated in the affidavit that in March, 2008 a resolution was passed for construction of two dwelling Units for Iman and Mousin on the existing superstructure which was approved in the EC on 4.5.2008 by passing a resolution to demolish the existing superstructure and to put up a new construction with strong foundation for Madrasa and an office in the ground floor and to put up two dwelling units in the first floor for Imam and Mousin and the construction has to be completed before 30.8.2008 (before Ramzan). The 4th Respondent was a member of the Executive Committee of the Association and also participated and signed in the minutes.
(i) The association took steps for demolition and construction of the building and on 17.6.2008 and at that time a telegram was sent to stop the proposed demolition. The 4th Respondent thereafter approached the Wakf Tribunal by filing O.A. No. 5 of 2008 seeking certain relief and also filed IA for interim injunction and the first Respondent viz., the Wakf Tribunal passed the interim order dated 7.7.2008.
(j) The order registering the Wakf dated 21.7.2008 is challenged on the ground that the land where the Mosque and Madrasa are situated at No. 10 Drowpathi Amman Koil Street, Velacherry, Chennai-42 belongs to Petitioner association and the Wakf application No. 7 of 2008 filed before the second Respondent is pending; that the question as to whether the property is a Wakf property or not has to be decided by the second Respondent/Wakf Board u/s 43 of the Wakf Act, 1995; that under the said provision notice has to go to the Registrar under the Tamil Nadu Societies Registration Act and after following the procedures and conducting enquiry the second Respondent/Wakf Board has to pass an order holding whether the Mosque and Madrasa Wakf situated in the land of the Petitioner association is a Wakf or not and whether it has to be registered; and that, the impugned order of registration dated 21.7.2008 is therefore unsustainable as no procedure was followed before registration.
5. The second Respondent Tamil Nadu Wakf Board has filed a counter affidavit contending that though the Wakf is situated in a property belonging to the Petitioner Association, the Petitioner Association cannot claim that it belongs only to the Petitioner association. The Petitioner cannot separate the land and Wakf as there is permanent dedication of Mosque for the purpose of pious, religious worship, recognised by the Muslim Law. There is no dispute regarding the status as Mosque and the Mosque being a public Mosque, registration of Wakf is mandatory u/s 36 of the Wakf Act. Application for registration of the Wakf shall be made by the Muthavalli u/s 36(2). The Muthavalli failed to register the Wakf and as per Section 36(7) on receipt of application for registration, the Board may make such enquiry as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars as and when any application is made by any person other than the person administer the Wakf property and the Board shall give notice of application to the person administering the Wakf property and shall hear him if he desires to be heard. As per Section 36(8) in case of wakf created before the commencement of the Act, 1995, every application for registration shall be made within three months from such commencement and in the case of wakfs created after such commencement, within three months from the date of the creation of the wakf. It is an admitted fact that the Mosque was constructed and dedicated in the year 1976 and it was again reconstructed in June, 1984 and expanded in December, 1988. It is in existence prior to the enactment of Wakf act, 1995 and it has to comply with Section 36(8) of the Act and no application for registration was filed by the Petitioner, however an application was filed by a Jamathdar. The Mosque being a public Mosque created for religious purpose of Muslim community, the law applicable is Wakf Act and not the Societies Registration Act. The Wakf Act being a special enactment, will prevail over the general law viz., Societies Registration Act. The Wakf Board is empowered to register the property of the Wakf u/s 40(3). The said section reads as follows:
Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 or under the Societies Registration Act or under any other Act, is wakf property, the Board may notwithstanding anything contained in such act hold an inquiry the Board is satisfied that such property is a wakf property, call upon the trust, or society as the case may be either to register such property should not be so registered.
Under Section 41, the Wakf Board can direct the Muthavalli for registration and no application was submitted by the Muthavalli. The 4th Respondent filed an application before the Wakf Board in W.E.A. No. 7 of 2008 and also prayed for conducting election after preparing proper electoral roll representing the entire Jamath. During the pendency of the said application, the 4th Respondent filed O.A. No. 5 of 2008 before the Wakf Tribunal and the Tribunal passed an interim order on 9.7.2008 including giving direction to register the Wakf. Accordingly the Wakf Board registered the said Wakf through the impugned order and therefore the said registration is valid, particularly when the Petitioner admits that the wakf is religious oriented for the benefit of Muslim community having a Mosque and Madrasa.
6. The 4th Respondent has filed counter affidavit contending that the Petitioner association is defunct for over 27 years and the said defunct Society has no locus standi to maintain the writ petition. The order registering the Wakf has become final as the registration of the Wakf bearing No. 311/2008 is not challenged. A communication of the registration alone is challenged by a defunct society. Once the Mosque is admitted to be a public Mosque, it is bound to be registered under the Wakf Act. The action of the Wakf Board is in terms of the Wakf Act and no interference is called for.
7. The 5th Respondent has filed counter affidavit contending that the President of the Petitioner Association having lost the election, the 5th Respondent was elected as the President and he conducted the general body meeting on 16.11.2008 and as such the writ Petitioner has no locus standi to maintain the writ petition.
8. Reply affidavit is filed by the Petitioner stating that the application was submitted by the 4th Respondent for registration on 19.7.2008. The Superintendent of the Wakf has given a report on the same day, based on which the Wakf was registered on 21.7.2008 bearing Registration No. 311/2008 and the registration itself was over on 21.7.2008 which shows that no show cause notice was issued to the Petitioner.
9. An affidavit was filed by one Abdul Kadher stating that he is the President of the Association and Muthavalli of the Mosque since 1997 and one Haji A.W. Shakir was elected as Secretary and Haji A.W. Farook was elected as Treasurer, who are still in the administration of the Mosque even today and the accounts are being maintained and submitted to the Auditor.
10. Heard Mr. R. Yashod Vardhan, learned Senior Counsel appearing for the Petitioner; Mrs. Hema Sampath, learned Senior Counsel for the 5th Respondent; Mr. V. Lakshminarayanan, learned Counsel appearing for the Wakf Board; and Mr. N.A. Nissar Ahmed, learned Counsel for the 4th Respondent.
11. The Civil Revision Petition was posted for admission on 22.7.2008. However the Wakf was registered on 21.7.2008 itself. On 22.7.2008 no interim order was passed in the revision petition on the basis of the submission made by the learned Counsel for the Respondent in the revision petition, who entered appearance as a caveator.
12. On the above facts it is evident that the prayer sought for in the revision petition to quash the order made in I.A. giving direction to register the Wakf is not maintainable as the order itself works it out even on the date of filing of revision petition that was on 21.7.2008. Thus the contention raised in the revision petition has become academic and the revision petition is dismissed as infructuous.
13. The point arises for consideration in the writ petition is as to whether the Petitioner Association can object for registration of the Wakf.
14. Admittedly the Mosque was dedicated in the year 1976. It is claimed by the Petitioner that one S. Abdul Khader is the President of the Association, functioning as Muthavalli from 1997. The same is disputed by the 5th Respondent in the counter affidavit. In this writ petition, Petitioner is challenging the registration of the Wakf alone and not challenging the removal of the said S. Abdul Khader as Muthavalli. The Wakf Act, 1995 mandates registration of every Wakf created before or after commencement of the Act, to be registered in terms of Section 36 of the Act. When there is no dispute regarding the dedication of the Mosque, even though the property claims to be purchased by the Petitioner Association, the control over the property by the Association will not continue as the Wakf is created.
15. The said issue was elaborately considered by the Honourable Supreme Court in the decision reported in
34. ...The parties admittedly belong to the Hanfi sect of the Mahomedans and are governed by the Hanfi (Sunni) School of Mahomedan law. Before however, going into this question it may be necessary to enter into an exhaustive discussion of the law on the subject, particularly because we find that the civil courts before whom this question came up for consideration from one angle or the other have betrayed a profound ignorance of the Mahomedan law (Hanfi School) of wakf relating to a public mosque. The word "wakf" means detention or appropriation.
According to the well recognized Hanfi School of Mahomedan Law when a Mahomedan dedicates his property for objects of charity or to God, he completely parts with the corpus which vests in God and never returns to the founder. Mahomedan Law contemplates two kinds of wakfs - a wakf which is private in nature where although the ultimate object is public charity or God, but the property vests in a set of beneficiaries chosen by the founder who appoints a mutawalli to manage the wakf which are normally known as wakf-alal-aulad. We are concerned with public wakf i.e. dedication made for the purpose of public charity e.g. an imambada, a mosque, a serai and the like. So far as the dedication to a mosque is concerned, it is governed by special rules and special equity in the light of which a particular dedication has to be determined. A mosque is obviously a place where the Muslims offer their prayers. It is well-known that there are certain formalities which have to be observed by the Muslims before they observe the prayers. These formalities are:
(i) wazoo i.e. washing of hands and feet in a manner prescribed by shariat;
(ii) the recitation of azaan and ikamat which is usually done by the Pesh imam or the muazzin;
(iii) there must be a person who possesses virtuous qualities and a knowledge of Koran and other religious rites who should lead the prayers.
This is necessary in case of prayers offered in congregation. A single Muslim can also offer his prayers with or without an imam but the prayers in a congregation of a jamaat are offered only behind an imam who leads the prayers. As Islam is an extremely modern and liberal religion, there is no question of any person being denied admission in a mosque for the purpose of offering prayers and that is why the law is so strict that the moment a person is allowed to offer his prayers in a mosque, the mosque becomes dedicated to the public. Finally, it is not necessary for the dedication of a public mosque that a mutawalli or a Pesh imam should be appointed which could be done by the members of the Muslim community. All that is necessary is that there should be a declaration of the intention to dedicate either expressly or impliedly and a divestment of his interest in the property by the owner followed by delivery of possession. Here also the delivery of possession does not involve any ritual formality or any technical rule. For instance in the case of a mosque if the Mahomedans of the village, town or the area are permitted to offer their prayers either on the vacant land or in a mosque built for the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes complete. Unfortunately the courts which decided the previous litigation between the parties do not appear to be aware of the considerations mentioned above.
35. In Baillie''s Digest of Moohummudan Law, 2nd Edn., the following passage occurs at p. 615:
If a man should make a musjid within his mansion and permit entrance to it and prayers to be said in it, the place becomes a musjid in all their opinions, if a way is made to it; but not otherwise according to Aboo Huneefa. According to the other two, however, it becomes a musjid and the right of way follows, without any condition to that effect. and if a door were opened to it on the highway, it would become a musjid.
It was again observed at p. 616:
When an assembly of worshippers pray in a musjid with permission, that is delivery. But it is a condition that the prayers be with imam, or the regular call, two times or more, and be public, not private....
When a man has an unoccupied space of ground fit for building upon, and has directed a kowm, or body of persons, to assemble in it for prayers, the space becomes a musjid, if the permission were given expressly to pray in it for ever, or, in absolute terms, intending that it should be for ever; and the property does not go to his heirs at his death.
It is also provided by the shariat that once a musjid has been established by dedication no condition can be attached by the founder and if any such condition is attached the said condition would be void: Vide the following observations of Baillie in his Digest of Moohummudan Law, 2nd Edn., at p. 617:
When a man has made his land a musjid, and stipulated for something out of it to himself, it is not valid, according to all. It is also generally agreed that if a man makes a musjid on condition that he shall have an option, the wakf is lawful, and the condition void.
It was also pointed out by Baillie at p. 618 that where a person gives money for the repairs of a musjid or its maintenance it operates as a transfer by way of gift to the mosque and is valid. Baillie observed thus:
A man gives money for the repairs of a musjid and for its maintenance, and for its benefit. This is valid; for if it cannot operate as a wakf, it operates as a transfer by way of a gift to the musjid, and the establishing of property in this manner to a musjid is valid, being completed by taking possession.
36. Ameer Ali in his book Muhammadan Law, Vol. I, 3rd Edn., has given several instances of a complete and irrevocable dedication made by the wakif or the founder and the consequences flowing from the same. Ameer Ali observed as follows:
The proprietary right of the wakif in a building or ground set apart for prayers becomes extinguished either on the declaration of the wakif that he has constituted it a mosque or musalla or consecrated it for worship, or on the performance of prayers therein or thereon.
Thus the moment a building is set apart for offering prayers the proprietary right of the w akif is completely extinguished. Similarly the following observations of the author indicate the various contingencies in which a dedication can be made to a public mosque:
So that when a person erects a building with the object of dedicating it as a mosque, and permits people to offer prayers therein, without declaring that he has constituted it into a mosque, and prayers are offered there bi''l jamaat, the mosque becomes irrevocably dedicated.
When a mosque is erected or set up inside a dwelling-house or residence (dar), and permission is granted to the public to come and pray, and a pathway is also made or set apart for their egress and ingress, the dedication is good by general consensus. If a pathway is not indicated, in that case, according to Abu Hanifa, the dedication is not sufficient. But according to Abu Yusuf and Mohammed, it is good, and the pathway will be implied by the permission to pray, and this is correct.
At the same time, though the public may have no right in a private mosque, it may constitute a good wakf so as to exclude the rights of the heirs over it. Where prayers have been once offered, it is not necessary to prove an express dedication. The very fact of the prayers being offered in it will imply a valid and good dedication.
Similarly, as the purpose of a mosque is that people should pray there is jammaat, it is required that where there is no express dedication, prayers should have been offered there with the azan and ikamat.
If prayers are offered once in a mosque it is sufficient to constitute a good dedication.
According to Kazi Khan, ''the delivery of possession as regards a musjid is complete when only one person has prayed in it with azan, and ikamat''. The view universally adopted is that prayers offered by one person in a mosque is sufficient to constitute it a public mosque devoted to the worship of God, for a mosque belongs to the deity and there affixes to it a right of the Mussalmans in general, and one person can be a proxy for the establishment of the right of the Creator and the public.
Therefore, if a person creates a mosque and gives permission to people to pray therein, it is an absolute wakf and this opinion we adopt.
The observations of the learned author are based on Radd-ul-Mukhtar and other original religious books which contain law on the subject.
37. The entire law on the subject has been explicitly and adroitly elucidated by Tyabji in his book Muslim Law, 4th Edn., where at p. 609 the author observes thus:
Under Hanfi law erecting or specifying a building for dedication as a musjid does not complete and effectuate the dedication of the land and building, nor cause the private ownership therein to cease until the owner divides them off from the rest of his property, provides a way to go to the musjid and either permits public prayers to be said therein, or delivers possession of it to a mutawalli, or to the judge, or his deputy.
* * *
For example, delivery in the case of a cemetery, is the burial of a person, and of a musjid, that people should pray there in jamaat.
In the case of a mosque where there is no express dedication it is necessary that prayers should have been offered with the azan or ikamat.
It is also pointed out by the author in Section 550 at p. 612 of his book that a musjid cannot be consecrated for only a particular type of people or people belonging to a particular locality and if any such reservation is made it is void. In Section 551 it is pointed out that the site of a musjid never reverts to its original owner, or his heirs.
38. Similarly Saksena in his Muslim Law, 4th Edn., at p. 567 observes that under the Hanfi law a wakf for a mosque will be completed only when the wakif separates the land and the building from the rest of his property, so that his ownership completely ceases in it, and either he delivers possession of the musjid to a mutawalli or to the judge, or allows public prayers to be read in it. Similar observations are also found in Mulla''s Principles of Mahomedan Law, 17th Edn., at p. 184.
39. It would thus appear that in order to create a valid dedication of a public nature, the following conditions must be satisfied:
(1) that the founder must declare his intention to dedicate a property for the purpose of a mosque. No particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder either express or implied;
(2) that the founder must divest himself completely from the ownership of the property. The divestment can be inferred from the fact that he had delivered possession to the mutawalli or an imam of the mosque. Even if there is no actual delivery of possession the mere fact that members of the Mahomedan public are permitted to offer prayers with azan and ikamat, the wakf is complete and irrevocable; and
(3) that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque.
As regards the adjuncts the law is that where a mosque is built or dedicated for the public if any additions or alterations, either structural or otherwise, are made which are incidental to the offering of prayers or for other religious purposes, those constructions would be deemed to be accretions to the mosque and the entire thing will form one single unit so as to be a part of the mosque.
(Emphasis Supplied)
From the above extracted paragraphs it is beyond doubt that once a Mosque is consecrated for public worship on the performance of prayers therein even by one person and dedication is complete and the property no longer belongs to the owner. Founder''s permission or bare act of allowing the members of Mohamedian public to offer prayers amounts to complete delivery of possession.
16. In the decision reported in AIR 1986 Kar 12 (Mohammed Ghouse v. The Secretary, Karnataka Board of Wakfs, Bangalore) it is held that a Masjith or Mosque being a place of worship of God, is not capable of human ownership or possession. It belongs to God and it is dedicated to His worship. Therefore, a Mosque or Masjith is Wakf as defined in the Act, whether it is or not registered or listed and the authority exercising the power under the Act is bound to register the Mosque as Wakf and enlist it.
17. As per Section 36(2) the Muthavalli of the Wakf is bound to sent an application for registration. When the Muthavalli failed to sent an application for registration as required u/s 36(2) as per Section 36(7), any person other than the person administering the Wakf can submit an application for registration. The application for registration should have been made within three months from the date of commencement of the Wakf Act, 1995. Till 19.7.2008 no application for registration of the Wakf was submitted by the Petitioner association, which allegedly was in control of the Mosque and its properties.
18. Whether the person belonging to the Petitioner association is continuing as Muthavalli itself is in dispute. In the light of the said dispute, whether the Petitioner has to be given notice or not need not be gone into. Hence the Petitioner is not entitled to challenge the registration of the Wakf made by the Wakf Board in this writ petition as the facts regarding the locus standi of the Petitioner Association itself is in dispute. If the Petitioner association or anybody has got any right worth agitating, it is upto the Petitioner or any other person to approach the Wakf Tribunal by filing appropriate application and the Wakf Tribunal is empowered to consider all aspects in terms of Section 86 of the Wakf Act, 1995. The writ petition challenging the order of registration therefore cannot be entertained.
19. Availing remedy u/s 86 of the Wakf Act, 1995 was considered by the Supreme Court in the decision reported in 2010 (7) Supreme 1059 (Board of Wakf, West Bengal v. Anis Fatma Begum and Anr.). In paragraphs 9 to 17 it is held thus,
9. The dispute in the present case relates to a Wakf.
10. In our opinion, all matters pertaining to Wakf should be filed in the first instance before the Wakf Tribunal constituted u/s 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.
11. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a special Tribunal for deciding disputes relating to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to Wakfs were being filed in the courts in India and they were occupying a lot of time of all the Courts in the country, which resulted in crease in pendency of cases in the Courts. Hence a special Tribunal has been constituted for deciding such matters.
12. Section 83(1) of the Wakf Act, 1995 states,
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 or such Tribunals.
13. Section 84 of the Act states,
84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision - Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute.
14. Thus, the Wakf Tribunal can decide al 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.
15. u/s 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 CPC to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.
16. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83(2) refers to the orders passed under the Act, but, in our opinion Section 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plan language of Sections 83(1) and 84 indicates.
17. We may clarify that under the proviso to Section 83(9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as t the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court.
In W.A.(MD) No. 39 of 2011 the Division Bench of this Court affirmed the order of the learned single Judge passed in W.P.(MD) No. 8850 of 2010 dated 16.10.2010, holding that the Appellant was having an effective alternate remedy of going before the Wakf Tribunal u/s 83 of the Wakf Act, 1995.
20. The decision of the Honourable Supreme Court cited by the learned Senior Counsel for the Petitioner reported in
21. Applying the above referred decisions to the facts of this case, this Court is of the view that the impugned order cannot be challenged by way of filing writ petition. Consequently the writ petition is dismissed granting liberty to the Petitioner to approach the Wakf Tribunal, if it has got any grievance. It is made clear that if any application is filed before the Wakf Tribunal, the same shall be decided by the Wakf Tribunal without reference to the findings rendered in this order. The findings given in this order is only for the disposal of these cases and parties are at liberty to establish their legal rights independently. The Civil Revision Petition is dismissed as infructuous. No costs. Connected miscellaneous petitions are also dismissed.
