1. These Civil Revision Petitions are filed against the judgment and decree dated 17.04.2008 made in O.A.No.2 of 2005 and I.A.No.694 of 2008
in O.A.No.2 of 2005, on the file of I Assistant Judge, Wakf Tribunal, City Civil Court, Chennai.
2. Since the parties and issues involved in both the Civil Revision Petitions are one and the same, these revision petitions are disposed of by this
common order.
3. The petitioners filed O.A.No.2 of 2005 under Section 83 (2) of the Wakf Act 1995 to set aside the order dated 05.02.2004 passed by the 6th
respondent in W.E.A. 9/03/E5/Che. The petitioners also filed I.A.No.694 of 2008 on the file of I Asst. Judge, City Civil Court, Chennai to
condone the delay in filing the certified copy of the Wakf Inspector Report dated 10.07.2003 as Ex.P10 in O.A.No.2 of 2005.
4. Facts of the case :- According to the petitioners, their grand parents are relatives of wakif and beneficiaries of the first respondent and they are
interested in the wakf. The mother of the petitioners is the cousin of late Secretary Nasrullah Badsha. The first respondent is registered and notified
as a public wakf. The object of the wakf is to give charities for the maintenance of the poor relatives and servants, muslims and non-muslims. The
wakif late Khan Bahadur Mohammed Abdul Aziz Basha had executed a deed of settlement on 29.08.1933 and declared himself as a first trustee
till his lifetime and after his death directed to devolve on any person appointed by him or devolving on the wakif''s eldest lineal male descendant.
He also gave instructions for appointment of trustees. After his death, the wakf was managed by a Board of Trustees of four persons. The last
Trustee Mohammed Nasrulla Basha, on 06.01.1978, executed another deed of appointment and wrote a will that committee of trustees of his
choice to manage the wakf and the same is against rule of succession. The respondents 2 to 5 and 7 are not entitled to be appointed as trustees.
They mismanaged the properties of trust, did not pay the contribution to the 6th respondent and has not properly protected the properties of first
respondent Wakf.
4(a) The petitioners filed application in W.E.A.9/03/E5/Che to the 6th respondent to hold an enquiry and to settle and frame scheme
of management for the first respondent. According to the petitioners, without appreciating the case of the petitioners, the 6th
respondent dismissed the application. Against the said order of dismissal, the petitioners filed O.A.No.2 of 2005 under Section 83
(2) of the Wakf Act 1955 to set aside the order dated 05.02.2004 passed by the 6th respondent in W.E.A. 9/03/E5/Che.
4(b) Pending OA, the petitioners also filed I.A.No.694 of 2008 under Order VII Rule 14 (3) and Section 151 of CPC to condone
the delay in filing the certified copy of the Wakf Inspector''s Report dated 10.07.2003. The respondents 1 and 3 filed counter
statement which was adopted by respondents 2, 4, 5 and 7. The 6th respondent filed separate counter statement. In I.A.No.694 of
2008, respondents 1 and 3 filed counter affidavit and the respondents 2 & 5 and 4 & 7 filed separate memos adopting the counter
affidavit filed by respondents 1 & 3.
4(c) At the time of arguments before the Wakf Tribunal, the learned counsel for the petitioners submitted that they are not seriously
objecting to Rule of Succession as the same was challenged in the earlier proceedings and it was confirmed by order of this Court
and they are not pressing the said issue. In view of such submission, the Tribunal did not consider the allegations with regard to
succession of trustees in the first respondent. The Tribunal, considering the averments made by the petitioners in O.A.No.2 of 2005,
counter statement filed by the respondents and arguments of the learned counsel for the petitioners and respondents, dismissed the
O.A as well as I.A holding that the petitioners have not proved mismanagement by the trustees and that documents sought to be filed
was considered by the 6th respondent Wakf Board and the allegations projected before the Tribunal on the basis of Inspector''s
report were not pleaded in the application before the 6th respondent.
5. Against the said order of dismissal dated 17.04.2008 made in made in O.A.No.2 of 2005 and I.A.No.694 of 2008 in O.A.No.2 of 2005, the
present two Civil Revision Petitions are filed by the petitioners.
6. The learned counsel for the petitioners contended that respondents 2 to 5 and 7 mismanaged the wakf and its properties as follows -
(i) They failed to carry out the directions of the founder of wakif with regard to performing charities
(ii) They failed to properly maintain the properties of wakf and they were damaged and decayed and the tenants left the properties
(iii) They failed to regularly collect the rent from tenants and some of the tenants started claiming title by adverse possession
(iv) They did not properly contest the proceedings of the Corporation with regard to property tax
(v) Exorbitant property tax was assessed by the authority more than the annual rental value of the properties and they did not
challenge the same
(vi) They did not pay the property tax regularly and authorities called upon the tenants to pay the amount towards property tax
payable by the first respondent.
(vii) They failed to properly develop and maintain the wakf properties to increase the income of the first respondent
(viii) They did not collect the rent from the tenants and there was huge arrears of rent payable by the tenants affecting the interest of
the first respondent
(ix) They failed to carry out regular maintenance of the property
(x) They sold the properties of Wakf for less than the market value without obtaining prior permission from the 6th respondent.
(xi) They did not utilise the amount realised by sale of the property to purchase some other property so that the first respondent will
get regular income.
(xii) As per Section 36 (a) of Wakf Act 1954 and Section 51 of the Wakf Act 1955, when an enactment contemplates that anything
to be done in a particular manner, the same should be done only in the manner as contemplated in the Act.
(xiii) Section 9 of the City Tenants Protection Act is not applicable and that cannot be taken as a shelter.
6(a) The learned counsel for the petitioners relied on the following judgments in support of his contention -
(1) CDJ 1958 MHC 282[ Sivananda Gramani and anr. v. Mohamed Ismail and anr.
By reason of this explanation it is clear that S.9 was intended to apply and could apply only to a case where a trustee could lawfully
dispose of the property. If a property is such that even, a trustee could not dispose of, like a mosque temple etc., then S.9 could not
be invoked for a sale to the tenant of the property. In the present case the suit property has been found to be part of a public
graveyard attached to a Thakiya which was mentioned as a Kabrasthan and held to be such in C.s.No.344 of 1933 (Shah Mir Md.
Raxa Khadiri Sahib v. P.Ramanuja Mudaliar). There will, therefore, be no jurisdiction in the Court to direct a sale to the tenant of the
property
(2) CDJ 2003 APHC 601 [N.Narayana Reddy v. State of Andhra Pradesh & others]
2. The contention of the learned counsel for the petitioner is that Government have no jurisdiction to accord any such permission to
alienate wakf properties. Further, both the Counsel brought to the notice of this Court that the immovable properties of the Wakf
Board can be alienated by way of sale, agreement, mortgage or in any manner, with the prior sanction of the Wakf Board only, as
contemplated under Section 36(A) of the Wakf Act, 1954 (Old Act) or under Section 51 of the new Act. A reading of the said
provision makes it clear that Wakf Board is the sole authority which can accord permission to alienate the wakf properties.
(3) CDJ 2017 MHC 5286 [Pelakshin Nirmala & anr. v. U.Jayanthi & anr.]
8. The learned Senior Counsel appearing for the petitioners submitted that the learned Judge failed to see that respondents have filed
application at a belated stage, after commencement of trial, when the suit was posted for cross examination of PW1 and has not given
any valid reason as contemplated in Order VI Rule 17 CPC and after commencement of trial, applications for amendment is not
maintainable. By amendment, the respondents are taking a contradictory stand, than the stand in I.A.No.372 of 2004, CMA No.9 of
2007 and CRP (PD) No.2210 of 2011 and before the revenue officials. The respondents have not stated as to when the petitioners
tresspassed into the land. The reason given by the learned Judge for allowing the application for amendment to include the prayer of
recovery of possession is arbitrary and is unjust. The amendment sought for by the respondents is barred by limitation. It takes away
the accrued right of petitioners and causes great prejudice. The learned Senior Counsel relied on the judgment reported in CDJ 2006
SC 1134 [Ajendrapradadji N.Pande & anr. v. Swami Keshaprakeshdasji.N. & others]
(4) Order of this Court dated 20.07.2006 made in CRP (PD) (MD) No.283 of 2004 [PS.K.N.Amanulla & Ors. v. Tamil Nadu
Wakf Board & Ors.]
5. Though the learned counsel for the first respondent Wakf Board by drawing my attention to some of the provisions of the Wakf
Act, 1995 contended that the Tribunal has no jurisdiction to entertain similar petitions, in view of the Division Bench decision referred
to above, I am unable to accept the said contention. It is seen from the Division Bench order, apart from the provisions of the Wakf
Act, the Division Bench has observed that the Wakf Tribunal has all powers of the Civil Court under the Code of Civil Procedure
and provisions of O.39, Rules 1, 2 and 2-A CPC are applicable. It is also brought to my notice that the said decision of the Division
Bench has been affirmed by the Supreme Court, which is evident from the decision reported in 2005-2-L.W.615.
(5) 2008 (7) SCC 310 [Mohammadia Co-operative Building Society Limited v. Lakshmi Srinivasa Co-operative Building Society
Limited and Ors.]
6. It is also not in dispute that the authority, if any, on the part of the Mujavars to sell the said lands, were subject to permission
granted by the Wakf Board.
34. The property is a Wakf property. Its control and management in terms of the provisions of the Wakf Act, 1954 (the Act) vested
in the Wakf Board. The administration of the property, indisputably, was required to be made in terms of the provisions thereof, in
view of the fact that the Act was enacted to provide for the better administration and supervision of the wakf.
35. The term ''Mutwalli'' is defined in Section 3(f) of the Act as under : ""3. Definitions : In this Act, unless the context otherwise
requires
(f) ''mutawalli'' means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by
a competent authority to be the mutawalli of a wakf and includes any person who is a mutawalli or a wakf by virtue of any custom or
who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a
mutawalli and, save as otherwise provided in this Act, any person or Committee or Corporation for the time being managing or
administering any wakf or wakf property;
Provided that no member of a Committee or Corporation shall be deemed to be mutawalli unless such member is an office bearer of
such Committee or Corporation.
40.Section 36A which was inserted by Act 34 of 1964 provided for prior sanction of the Board before a wakf property is
transferred.
41. By Act 69 of 1984 such alienations are to be void. When an application for grant of sanction to transfer the Wakf property is
filed by a Mutawalli, it is required to publish the particulars relating to transaction in the official Gazette and invite objections and
suggestions in regard thereto and on receipt of such objections and suggestions, as also upon consideration thereof only, sanction
could be accorded upon formation of the opinion that such transactions fulfill the criteria as laid down in clauses (i) to (iii) of sub-
section (2) of Section 36 of the Wakf Act. It is only when a sanction is granted, the sale is to be held by public auction. Such public
auction shall also be subject to confirmation by the Board.
75. More reprehensive is the conduct of the State as, despite issuance of GO Ms No.343 and memo dated 25.10.1986, no action
has yet been taken. The State''s jurisdiction in the matter is supervisory in nature. The AP Wakf Board is a statutory body. It is the
duty of the State to oversee its functions. The property belonging to a wakf cannot be permitted to be withered away at the instance
of the office bearers of the Board or those in charge of the wakf. They being the trustees should act like trustees. Why for 22 years,
no enquiry was conducted and why no action had been taken pursuant to the said GO Ms dated 25.10.1986 is a matter of serious
concern to all concerned including the general public.
7. The learned counsel appearing for the 6th respondent submitted that the application filed by the petitioners before the 6th respondent and
O.A.No.2 of 2005 filed before the Tribunal for framing the scheme for appointment of trustees to the first respondent is not maintainable. As per
Section 69 of the Wakf Act 1955, the Board, on its own motion or on application by not less than five persons interested in the wakf, if satisfied,
after enquiry shall frame scheme for the administration of wakf, after giving opportunity and consultation with mutawalli and others. In the present
case, only two persons have filed application for framing scheme and it is not maintainable. The petitioners, respondents 2 to 5 and 7 are close
relatives and they have colluding together and filed the present application. The 6th respondent is contemplating of taking proceedings against the
respondents 2 to 5 and 7 after considering the wakf inspector''s report dated 10.07.2003. It is the duty of mutawalli to maintain the property and
collect the rent from the tenants regularly.
8. Per contra, the learned counsel for the respondents 1 to 5 and 7 contended that the report of wakf inspector dated 10.07.2003 was prepared in
respect of earlier petition given by some other person. It is only a report and it is not supported by any affidavit. The earlier application for very
same relief of framing scheme of the first respondent was rejected by 6th respondent and the same was confirmed by this Court in the writ
proceedings. The 6th respondent is not entitled to take any proceedings under Section 64 & 69 of the Act as the ingredients contemplated under
said sections are not made out either by wakf inspector or by the petitioners. The 6th respondent has not stated in the counter filed by them before
the Tribunal about their power or right or intention to initiate proceedings under Section 64 or 69 of the Act.
8(a) As far as sale of the wakf properties are concerned, the first respondent initiated proceedings for eviction of the tenants. The
tenants, invoked provisions of Section 9 of the City Tenants Protection Act and the court passed an order holding that tenants are
entitled to purchase the land over which they have put up superstructure. An Advocate Commissioner was appointed and the value of
the property was fixed based on the report of the Advocate Commissioner. The Court directed the tenants to deposit the sale price
and on such deposit, the sale deeds were executed in favour of the tenants. The sale as per the order of the court is not voluntary and
it is only involuntary on the part of the respondents 2 to 5 and 7. In such circumstances, permission of 6th respondent is not necessary
to execute the sale deed. Section 9 of the City Tenants Protection Act was applicable to the properties of the temple, wakf and
mosque and other religious institutions.
8(b) Respondents 2 to 5 and 7 are properly maintaining the properties of the first respondent and are periodically carrying out
necessary repairs, if the property is damaged or decayed. The petitioners have not given any particulars of properties damaged or
decayed, as claimed. The respondents 2 to 5 and 7 have paid contribution to 6th respondent and there is no arrears of contribution to
the 6th respondent. In fact, the 6th respondent was having Rs.3,00,000/- of first respondent and respondents 2 to 5 and 7 were
requesting the 6th respondent to adjust the said amount towards their contribution.
8(c) As far as the property tax is concerned, it was general revision by the Corporation and it cannot be said that the same is
exorbitant. The respondents have paid the property tax, water tax and other statutory tax regularly. As far as sale consideration of the
properties at Royapuram is concerned, the same is not sufficient to purchase a new property and on the other hand, the respondents
have demolished old building at No.238 Peters Road and 12 & 13, Md.Hussain Street, Royapettah, Chennai - 14 and put up
superstructure. By this, the income of the first respondent has increased manifold and respondents 2 to 5 and 7 are carrying out all the
charities as per the instructions of the original wakfi and they are regularly collecting the rents and have initiated the proceedings
against the tenants who have defaulted in payment of rent.
8(d) The petitioners have filed petitions before the 6th respondent and O.A. before the Tribunal only at the instigation of one of the
tenants namely Mrs.Azeem Jehan Begum who is a defaulter in payment of rent against whom eviction proceedings had been initiated.
The respondents 2 to 5 and 7 are maintaining the property properly and accounting the income and expenditure of the first
respondent and the same is audited periodically and submitted before the 6th respondent. The statutory right is vested with the tenant
as per Section 9 of City Tenants'' Protection Act and it prevails over the proceedings from obtaining permission from the 6th
respondent and sell the property by public auction.
8(e) The learned counsel for the respondents 1 to 5 and 7 relied on the following judgments in support of his contention.
(1) 1924 LW 1924 LW 165 [C.Doraivelu Mudaliar v. Natesa Gramani and ors.]
We cannot accede to the contrary opinion of Spencer and Venkatasubba Rao, JJ., in Parthasarathi Aiyangar v. Doraiswami Naicker
[I.L.R. 46 Mad 823] and must answer the reference, not in the form of a direct answer to the question put, but, by saying that in our
opinion, Sect.9 of the Madras Act III of 1922, applies to landlords, who hold their land as trustees of a religious institution.
(2) 86 LW 549 [Ameena Begum v. Kalbali Baig Mosque, Ranipet]
In the above quoted case, since the Wakf Board Itself was a party, it was held that the question of issue of notice does not arise.
From the above decision it is very clear that Section 35-A of the Wakf Act is not a bar to the applicability of Section 9 of the City
Tenants Protection Act to the lands held by the Wakf, where there is a valid tenancy. Though the trial Judge has referred to this
decision, the learned lower Appellate Judge has not at all considered the said decision while arriving at the finding that the respondent
wakf has no right to sell the lands.
(3) 1992 (4) SCC 731 [M.Ramasamy Pillai (dead) by Lrs. vs. The Hazarath Syed Shah Mian Sakkaf]
The only reason given for denying the benefit of Section 9 of the City Tenant''s Protection Act by the High Court to the appellant is
that while executing the lease deed Exhibit A. 5 dated 17.11.1955, the mutawalli had no power to grant such lease under the
provisions of the Wakf Act 29 of 1954 as amended by Amendment Act 34 of 1964. In our opinion that the High Court was not
correct in taking the aforesaid view. The appellant in the present case was a tenant long before the coming into force of the Wakf Act
1954. The plaintiff had come forward with a clear case in the plaint dated 15.9.1967 that the appellant was a tenant holding over and
as such he was not entitled to take a different plea in reply to the petition filed under Section 9 of the Act that the appellant was not a
tenant as the property in question was wakf property and the mutawalli had not right to grant a lease vide Exhibit A. 5. dated
17.11.1955. Thus, in the facts and circumstances of this case we hold that the defendant appellant was entitled to the benefit of the
provision of Section 9 of the Act.
9. Heard the learned counsel appearing for the petitioners, respondents 1 to 5 & 7 as well as 6th respondent and perused the materials available
on record.
10. Points for consideration in CRP No.2179 of 2009 is whether the respondents 2 to 5 and 7 have mismanaged the affairs of the first respondent.
CRP (NPD) No.2179 of 2009 :
This CRP is filed against the order dated 17.04.2008 dismissing O.A.No.2 of 2005 by the I Assistant Judge, Wakf Tribunal, City
Civil Court, Chennai.
10(b) The learned counsel for the petitioners, in the grounds of revision raised objection with regard to issue of succession and has
stated that appointment of respondents 2 to 5 and 7 as trustees is in deviation of instructions given by wakif. The petitioners are not
entitled to raise this issue in the Civil Revision Petition as they had not raised this issue before the Tribunal and Tribunal recorded th
said submission and did not consider and pass any order with regard to framing of scheme or issue of succession.
10(c) The contention of the petitioners before the 6th respondent as well as before the Tribunal and this Court is that the respondents
2 to 5 and 7 have not collected the rents regularly, did not maintain the properties properly, allowed the same to be damaged and
decayed, did not properly challenge the orders of the property tax and did not pay the property tax and committed wilful default. The
petitioners have not furnished any particulars about the tenants from whom the rents are not collected or the properties which were
allowed to be damaged and decayed. On the other hand, it is the contention of the respondents 2 to 5 and 7 that they have regularly
collected the rent and carried out the maintenance of the properties regularly. As far as assessment of the property tax is concerned,
according to them, it is a general revision and the same is in order and that they have not committed any default in payment of
property tax and other dues to the Government. In view of the failure on the part of the petitioners to produce any evidence to
substantiate their contention, the contentions of the learned counsel for the respondents 2 to 5 and 7 are acceptable.
10(d) As far as allegations that respondents 2 to 5 and 7 failed to maintain proper and regular accounts of income and expenditure
and the same was not submitted to the 6th respondent is concerned, respondents 2 to 5 and 7 have stated that they are maintaining
true and proper accounts and the same is periodically audited and submitted to the 6th respondent. This contention is not denied by
the 6th respondent. Similarly, the contention of the petitioners that respondents 2 to 5 and 7 did not pay the contribution to the 6th
respondent is concerned, the 6th respondent has admitted that the contributions to the 6th respondent had been paid by the
respondents 2 to 5 and 7.
10(e) The next contention of the learned counsel for the petitioners that respondents 2 to 5 and 7 have sold the property without prior
permission of the 6th respondent and that it was not sold by public auction is contemplated under Wakf Act and that Section 9 of the
City Tenants'' Protection Act is not applicable to the Wakf property and Mutawalli has no power to sell the property are without
merits. As far as the sale of properties by the respondents 2 to 5 and 7 are concerned, it is only by the order of the court, they sold
the properties. It is an admitted case that first respondent has leased out the land to the tenants and they have put up superstructure.
When the first respondent initiated legal proceedings for eviction of the tenants, the tenants invoked provisions of Section 9 of the
City Tenants'' Protection Act and the Court held that the tenants are entitled to the benefit of Section 9 of the City Tenants''
Protection Act. The sale price was fixed by the court and after the tenants paid the sale price, sale deeds were executed. In such
circumstances, the contention of the learned counsel for the respondents 1 to 5 and 7 that sale is not voluntary sale and no prior
permission of 6th respondent is necessary or public auction is necessary has considerable force.
10(f) The contention of the learned counsel for the petitioners that Section 9 of the City Tenants'' Protection Act is not applicable to
the Wakf property is without merits. The judgments relied on by the learned counsel for the respondents 1 to 5 and 7 are squarely
applicable to the facts of the present case. In the full bench decision of this court reported in 1924 LW 165 cited supra, it has been
held that provisions of City Tenants'' Protection Act is applicable to religious institutions and properties held by temples and wakf. In
a full bench decision of this Court reported in 2006 (2) CTC 452 cited supra, it has been held that Section 9 of the City Tenants''
Protection Act is applicable to the landlord who hold the land as trustees and religious institutions. In the judgment reported in 86 LW
549 cited supra, relied on by the learned counsel for the respondents 1 to 5 and 7, it has been held that when the sale is as per
Section 9 of the City Tenants'' Protection Act, Section 35-A of the Wakf Act 1955 could not be invoked and it is not a bar for the
applicability to Section 9 of the City Tenants'' Protection Act. Section 35-A of Wakf Act 1955 prohibits transfer without prior
sanction of the Wakf Board of voluntary transfers and not involuntary transfer or transfer by orders of Court.
10(g) The learned counsel for the respondents 1 to 5 and 7 has stated that the sale consideration was utilised for maintenance of the
properties as well as for demolition of old construction and to put up new construction whereby the income of the first respondent
increased manifolds. The petitioners have not produced any contra evidence to disprove this contention. The Tribunal has elaborately
considered this fact and dismissed the O.A. by giving valid and cogent reasons.
CRP (NPD) No.2180 of 2009 :
11. (a) This CRP is filed against the judgment and decree dated 17.04.2008 made in I.A.No.694 of 2008 in O.A.No.2 of 2005 by the file of I
Assistant Judge, Wakf Tribunal, City Civil Court, Chennai. The petitioners filed I.A.No.694 of 2008 to condone the delay in filing the certified
copy of the Wakf Inspector Report dated 10.07.2003 as Ex.P10 in O.A.No.2 of 2005.
11(b) According to the petitioners, they were able to get the certified copy of the said report only in March 2007. They have not
given any reason as to why they did not obtain certified copy earlier, when the application was pending before the 6th respondent or
at the time of filing of O.A. Further, even though they obtained certified copy of the inspector''s report in March 2007, they have filed
the application only in January 2008. They have not explained the delay in filing the said report. The learned Judge, dismissed the I.A.
holding that the 6th respondent considered the objection of the petitioners and rejected the same. The petitioners did not make their
allegations on the basis of wakf inspector''s report. The 6th respondent can decide the issue only based on the application filed by the
petitioners and 6th respondent considered each and every allegation made by the petitioners and passed the orders. The Tribunal has
given cogent and valid reasons for rejecting the application.
12. In view of the above circumstances, the judgments relied on by the learned counsel for the petitioners do not advance the facts of the present
case. There is no irregularity or illegality in the order impugned in these revisions warranting interference by this Court.
13. In the result, both the Civil Revision Petitions are dismissed. No costs.
