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Abdul Rahim rep. by his power agent Abdul Saleem & Another v. Asharad Syed Badesha & Others

Abdul Rahim rep. by his power agent Abdul Saleem & Another
v.
Asharad Syed Badesha & Others

(High Court Of Judicature At Madras)

Civil Revision Petition No. 2188 Of 2005 & Civil Miscellaneous Petition No. 19421 Of 2005, Civil Miscellaneous Petition No. 1345 Of 2007, Civil Miscellaneous Petition No. 78 Of 2010, V.Civil Miscellaneous Petition No. 160 Of 2006, C.M.P.430 Of 20101 Of 2010 | 30-07-2010


1. Animadverting upon the judgment dated 22.07.2005 passed by the Principal Subordinate Judge, Nagapattinam (Wakf Tribunal), in WOP No. 2 of 2004, this civil revision petition is focussed. 2. Broadly but briefly, narratively but precisely, the relevant facts, shorn of unnecessary details, would run thus: (i) The respondent herein-A sharad Syed Badesha Burukanuthin Auvila Thaikkal (hereinafter referred to as the ‘Wakf’ for short) instituted the WOP No.2 of 2004 in the Nagapattinam Wakf ‘Tribunal, (Principal Subordinate Judge) seeking the following relief: (TAMIL) (ii) The revision petitioners herein contested the matter. (iii) On the side of the first respondent/Wakf Board herein, its President examined himself as P.W.1 along with one Md.Rasheed as P.W.2 and Gunasekaran as P.W.3 and marked Exs.P1 to P38. On the side of the revision petitioners herein, the first revision petitioner examined himself as R.W.1 along with one Shiek Alavudeen as R.W.2 and marked Exs.R1 to R20. (iv) Ultimately, the Wakf Tribunal decreed the WOP as prayed for. 3. Being aggrieved by and dissatisfied with the said order of the Wakf Tribunal, this revision has been filed on various grounds. 4. Placing reliance on those grounds, the learned counsel for the revision petitioners would advance his arguments, the gist and kernel of them would run thus: (a) As per Section 83(2) and 85 of the Wakf Act, 1995 (for short the ‘Act’), the Wakf Tribunal had no jurisdiction at all to entertain the said WOP, as the dispute between the Wakf and its tenant cannot be the subject matter of adjudication before the Wakf Tribunal. (b) The scope of Section 7 of the Act was not considered by the Tribunal. (c) The Tribunal failed to see that the revision petitioners herein happened to be the cultivating tenants in respect of the first schedule of the property in the W.O.P. and in such a case recovery of possession at the instance of the Wakf as against the revision petitioners herein-the tenants would not arise before the Tribunal, which has no jurisdiction to decide the dispute arising under the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural) Act (Act 57/1961) (hereinafter referred to as the ‘Public Trust Act’ for short). Only the authority under the said Public Trust Act has got the right to decide the claim of the Wakf to recover the land, which is under the possession of the revision petitioners, who are the cultivating tenants. (d) The application filed by the President of the Wakf is not maintainable, because the five members of the committee appointed by the Wakf Board should have jointly filed the WOP, if at all the filing of the WOP was tenable. (e) The revision petitioners have not sub-let the first schedule of the property to anyone. (f) The Tribunal failed to see that the mutation of the entry in the record of tenancy rights was effected behind the back of the revision petitioners, as they did not sign the application for such mutation. (g) The revision petitioners did not receive the sum of Rs.3 lakhs from Md.Sultan, the alleged transferee of the tenancy. (h) Ex.P6 is not at all admissible in evidence. (i) The Tribunal had no jurisdiction to order for recovery of arrears of rent in respect of the II Schedule of the property in the W.O.P. (j) The Tribunal failed to see as to how the arrears of rent for 12 years could be ordered. (k) Ad valorem Court fee ought to have been paid on the arrears claim and even that was not paid. As such, the learned counsel for the revision petitioners prays for setting aside the judgment and decree passed by the Tribunal. 5. Per contra, by way of torpedoing and pulverizing the arguments as put forth on the side of the learned counsel for the revision petitioners, the learned counsel for the first respondent herein/the Wakf would advance his arguments, the wrap and woof of them would run thus: (i) Any dispute as per Section 7 read with Secs.83 and 85 of the Act could rightly be adjudged by the Tribunal and there is no embargo to it. (ii) No exception could be carved out relating to the dispute erupting between the Wakf on the one side and its tenants on the other side. But here it is a peculiar case, in which the erstwhile tenant, namely, the first revision petitioner herein long ago abandoned the said I schedule of the property and whereupon one other person, by name Md.Sultan occupied the same and he in fact surrendered the property in favour of the Wakf. Thereafter, by having a volte face, the erstwhile tenant the revision petitioner No.1 herein barged into the said property of the Wakf and occupying it and in such a case he could only be termed as a trespasser. As such, the case has become a clear case for the Wakf Tribunal to get it processed before it as undoubtedly the Tribunal has got the jurisdiction to evict the trespasser from the Wakf property. (iii) As per Ex.P6, the Record Officer under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 clearly gave a finding to the effect that no more the first revision petitioner herein was having any connection with the said I Schedule of property, as under the agreement executed by the revision petitioner No.1 in favour of the said Md.Sultan, he relinquished his right. Whereupon the said Md.Sultan was occupying the said property, which is an agricultural land and thereafter surrendered it to the Wakf Board. (iv) Once the Record Officer gave his finding that only Md.Sultan was the tenant, then that order would operate as against the revision petitioners herein and it would not lie in the mouth of them to contend as though they are the cultivating tenants in respect of the said property under the Wakf. No appeal also was filed as against such order. (v) Adding fuel to the fire, the wife of the revision petitioner No.1 figured as a witness before the Record Officer and also deposed in support of recording the tenancy in the name of Md.Sultan and in such a case, the revision petitioner’s contention now that they are the cultivating tenants in respect of the said property cannot be countenanced and the Tribunal appropriately considering the pros and cons of the matter passed the judgment, ordering delivery to be effected by the revision petitioners in favour of the Wakf Board. (vi) Since the Wakf got the matter processed before the Tribunal, it had paid the Court fee of Rs.15 on the strength of G.O.No. 1574 (Home Department) dated 12.6.1972, which emerged under Section 27(c) of Wakf Act and in such a case ad velorem Court fee was not required to be paid on the claim for arrears of rent as against the revision petitioners herein. Accordingly, the learned counsel for R1 would pray for the dismissal of the revision petition. 6. There are as may as three schedules of properties in the WOP concerned. The Wakf sought for recovery of possession of the first schedule of the property from the revision petitioners herein. In respect of the second schedule of the property, the recovery of arrears of rent alone, was sought by the Wakf as against the revision petitioner No.1 herein. In respect of the third schedule of the property is concerned, the Wakf prayed for injunction as against the revision petitioners herein not to interfere with the wakf’s tenants in the said property. 7. Regarding the 3rd schedule of the property is concerned, the learned counsel for the revision petitioners would make a categorical submission that the revision petitioners have not filed any revision as against the relief granted in respect of it in favour of the respondents herein. 8. The points for consideration are as under. (i) Whether the Tribunal has got the jurisdiction to entertain the relief of recovery of possession as against the revision petitioners herein in view of the contention of the revision petitioners herein the dispute between the landlord and tenants cannot be decided by the Tribunal under the Wakf Act? (ii) Whether the Tribunal has got the jurisdiction to order for recovery of rent due payable by the tenant and also compensation in favour of the Wakf? (iii) Whether there is any infirmity in the judgment passed by the Tribunal? 9. Point No.(i) The learned counsel for the revision petitioners cited the decision of the Allahabad High Court reported in AIR 2006 Allahad 115 – Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajkhan Mus, and certain excepts from it would run thus: “169. As noted above, the present Suit is a Suit for eviction of the tenant (i.e. petitioner (defendant)) from the disputed shop after determination of the tenancy/lease. Such a Suit is not a Suit ‘in respect of any dispute question or other matter relating to” any wakf or – wakf property in the context in which the, said words have been used in Section 85 of the Wakf Act, 1995. 170. Further, analysis of various provisions of the Wakf Act, 1995, particularly, Sections 6, 7, 32, 33, 35, 40, 51, 52, 54, 64, 67, 69 and 83 thereof, shows that such a Suit for eviction of the tenant (i.e. Petitioner (defendant)) after determination of the tenancy/lease is also not covered within the purview of the words “other matter which is required by or under this Act to be determined by a Tribunal.” 171. In the circumstances, I am of the opinion that the bar created by Section 85 of the Wakf Act, 1995 does not apply in the present case, which pertains to a Suit for eviction of the tenant from the disputed shop after determination of the tenancy/lease. As such, in my opinion, the submissions made by the learned counsel for the petitioner (defendant) in this regard, cannot be accepted.” 10. Placing reliance on the said precedent, he would develop his argument that under the Wakf Act, the Wakf cannot institute any proceedings in the Wakf Tribunal for the purpose of evicting its tenant from the Wakf’s agricultural property. 11. A mere poring over and perusal of the said decision would convey that the Allahabad Court threadbare discussed the scope of the provisions of the Wakf Act and held that a dispute as intended to be decided by the Tribunal would not include the dispute which erupts between the Wakf as landlord on the one side and its agricultural tenants on the other side. 12. No other decision has been brought to the notice of this Court. 13. However, I would like to cite the decisions cited on the side of the Wakf Board. The learned counsel for the revision petitioners would cite the following decisions, so as to canvas his point that dispute would include even the dispute between the Wakf on the one side and its agricultural tenant on the other side. (i) 2006 (5) CTC 346=2006.4-L.W. 744-V.S.B.Sikkandar vs. K.M.Khader Gani and the Tamil Nadu State Wakf Board, certain excerpts from it would run thus: “5.2. As pointed out by the learned counsel appearing for the Wakf Board, Section 83(1) of the Act provides for the constitution of the Tribunals for determination of any dispute, question or other matters relating to a Wakf or Wakf property under the Act and also defines the local limits and jurisdiction for each of such Tribunals. As per Section 83(4) of the Act, the Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, no below that of a District, Sessions or civil Judge, Class I, and as per Section 83(5) of the Act, the Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure while trying a suit or executing a decree or order. 7. In view of the discussion made above, we are of the considered opinion that the judgment and decree dated 10.4.96 made in O.S.No. 192 of 1993 on the file of Principal Subordinate Judge, Nagapattinam District, has to be aside and accordingly, it is set aside and the appeal is allowed. The plaintiff/appellant is at liberty to approach the Special Tribunal constituted to try the suits under the Wakf Act, 1995, for appropriate relief, if he is so advised and on receipt of any such application from the plaintiff/appellant, the Tribunal shall condone the delay occurred due to the pendency of the above appeal before this Court.” A mere perusal of the above judgment would reveal that it is on a different set of facts, so to say it was relating to appointment of Muthavalli. Hence, I am of the considered view that the judgment of the Division Bench of this Court cannot be pitted as against the judgment of the Allahabad High Court cited supra. (ii) AIR 2005 MAD 241 = 2005-1-L.W. 676-Salam Khan Sheik Hyder vs. The Tamil Nadu Wakf Board, certain excepts from it would run thus: “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. It is not proper for this Court to straight away entertain writ petitions relating to a Wakf or Wakf property when there is a special Tribunal constituted for this purpose. 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 if there is any dispute, question or other matter relating to a wakf or wakf property. 10. 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 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, Sections 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 property, as the plain language of Sections 83(1) and 84 indicate. We are further of the opinion that even if an order has been passed prior to the Wakf Act, 1995, or a dispute, question or matter has arisen before the commencement of the said Act, the Wakf Tribunal can adjudicate such issues or questions or the correctness of such an order, because the intention of Parliament in enacting Wakf Act, 1995 is that any dispute or matter pertaining to Wakf should go before the Wakf Tribunal.” This decision also is not relating to any dispute between the landlord and the tenant with regard to recovery of possession. 14. The cited decision of the Allahabad High Court would be sufficient for this Court to get convinced that this Court need not take a different view from the one taken by the Allahabad High Court and I respectfully agree with the said view taken by it. 15. At this juncture, my mind back to the following maxims: ‘(i) Generalia specialibus non derogant’ – General words do not derogate from special. ‘(ii) Expressio unius est exclusion alterius’ – The expression of one thing is the exclusion of another ‘(iii) Expressum facie cessare tacitum-Which is expressed makes that which is implied to cease. 16. These three sister maxims would connote and denote that whenever there is a special law governing a particular subject matter, then the general law will not be applicable. 17. Here it has to be taken that the Wakf Act 1995, itself might be a special law as well as central Act relating to Wakf and the disputes pertaining to the Wakf property. On the other hand, the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act is a special as well as local law. 18. It is therefore crystal clear that if a particular dispute comes within the scope of the said special as well as local law, then it cannot be contended that the provisions of the central Act would be applicable. In other words, the Wakf Act itself is a special enactment relating to Wakf property and the said Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act is further carving out certain exceptions relating to Wakf property. In fact, there is no conflict also between the said Central Act and the State Act. The Central Act namely the Wakf Act contemplates certain disputes only to be decided by the Wakf Tribunal. 19. Succinctly and tersely I would like to refer to certain constitutional points involved in this matter. (i) Item 18 of List-II i.e. the ‘State List’ in the Constitution of India 1950 is extracted hereunder: “18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; and improvement and agricultural loans; colonization.” A plain reading of it would demonstrate that the subject ‘landlord and tenant relationship’ is under the ‘domain of State Legislature’. (ii) No doubt, item 28 of List-III i.e ‘Concurrent List’ would run thus: “item 28: Charities and charitable institutions, charitable and religious endowments and religious institutions.” It is therefore clear that the Legislative competence of the Central and State Legislatures respectively in enacting the two enactments, namely, (i) Wakf Act 1995 (ii) The Tamil Nadu Public Trusts (Regulation of Administration of Agricultural) Act (Act 57/1961) is beyond controversy. 20. The contention raised on the side of the Wakf is palpably untenable as the aforesaid Tamil Nadu enactment as per item 18 of the State list, pellucidly laid down the norms governing the relationship between the landlord and the agricultural tenant. Wherefore the authority under the Tamil Nadu Act also has got the right to adjudge the dispute between the Wakf and its agricultural tenant in deciding the fact as to whether the agricultural tenancy continues or not. 21. Section 2(25) of the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act would define public trust’ as under: “Sec.2(25): “Public Trust” means a trust for a public purpose of a religious or charitable, or of an educational nature, and includes:- (i) any temple, math, mosque, church or other place by whatever name known, which is dedicated to, or for the benefit of, or used as of right by, any community or Section thereof as a place of public religious worship: (ii) any charitable or educational institution of a public nature.’ It is therefore crystal clear that even a Wakf agricultural property is covered under the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act. 22. The reading of the other relevant provisions such as Sections 7, 8 and 15(a) of the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act would all exemplify and demonstrate, display and convey that even agricultural lands belonging to the Wakf once leased out, those properties would be covered by the said Act, subject to such tenants coming within the definition as found detailed under it. 23. However, the learned counsel for the first respondent/Wakf would contend that once the Wakf Act 1995 which is a latter enactment is having wide definition relating to the word ‘disputes relating to Wakf’, as per Sections 6 and 7 of the Wakf Act, the one other special enactment, namely, Tamil Nadu Public Trusts (Regulations of Administration of Agricultural Lands) Act 1961 would not be applicable. 24. To the risk of repetition and pleonasm but without being tautalogous I would like to point out that even though the Wakf Act itself is a special enactment, the Tamil Nadu Public Trusts (Regulations of Administration of Agricultural Lands) Act is a local special enactment relating to the agricultural tenancy rights and that would prevail. I need not further elaborate as to the powers of Central and State Legislatures here as it would be superfluous in view of obvious and axiomatic factural and legal position stood exemplified in this case. 25. I also recollect the maxim Verba it a sunt intelligenda ut res magis valeat quam pereat: Words are to be so interpreted as to be effective rather than ineffective. 26. The general words in an enactment has to be understood as such and if there is any doubt, it has to be interpreted with regard to the object of the Act. One should not lose sight of the fact that the Wakf Act of 1995 is nothing but an Act which partakes the earlier Wakf Act 1954. 27. So far Sections 6, 7 of the Wakf Act 1995 are concerned, there are no variations at all from the old Act. I would also like to refer to the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969. Section 2(8)(i) of the said Act defines ‘tenant’. It is quite axiomatic that even an agricultural tenant under the Wakf is contemplated under the said definition. 28. It is therefore pellucidly and palpably clear that if there is any dispute between the Wakf being the landlord and the agricultural tenant under it, then that dispute has to be decided only under the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961, and the Tribunal constituted under Section 8 of the Wakf Act would have no jurisdiction at all. 29. The next phase of the contention on the part of the learned counsel for the Wakf is that here, the Wakf treated the revision petitioners herein only as trespassers and in such a case, the question of invoking the aforesaid Tamil Nadu special enactment would not arise at all. 30. Whereas, the learned counsel for the revision petitioners inviting the attention of this Court to the various portions of the typed set of papers would develop his argument that admittedly the first revision petitioner herein was the tenant under the wakf and it is the case of the Wakf that he allegedly abandoned the property and whereupon one other person, namely, Md.Sultan was inducted into it, and that Md.Sultan handed over the property in favour of the Wakf, and such contention cannot be countenanced at all, because once a tenant was recognised as the cultivating tenant under the Wakf, it should be taken that he continued to be the tenant under it, unless there is clinching evidence to show that he surrendered possession of the property to the Wakf. But here there is nothing to indicate and display that Md.Sultan surrendered possession of the property directly to the Wakf. 31. Whereas, the learned counsel for the Wakf pinning his faith in Ex.P6 would develop his argument in extenso that the Record Officer, who is the competent officer to record the tenancy, including the tenancy relating to the Wakf property, clearly and categorically in his order pointed out that no more the first revision petition petitioner was in possession of the property concerned and he inducted Md.Sultan in possession of the said property and accordingly, the name of the first revision petitioner herein was deleted and the name of the said Md.Sultan was inducted and without preferring any appeal or revision over it, it would not lie in the mouth of the revision petitioners herein to contend that such Ex.P6 would have no binding effect on them. 32. It is therefore just and necessary to analyse the said Ex.P6-the order passed by the Record Officer under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969. It is quite obvious that the Record Officer on the application of the said Md.Sultan, who claimed to have got transferred the said lease from the first revision petitioner herein in his favour on payment of Rs.3 lakhs, petitioned the Record Officer for effecting mutation in the register of tenancy concerned. 33. The curious feature to be noted here is that P7 in the WOP, on behalf of the Wakf, objection was filed before the Record Officer to the effect that without the knowledge and consent of the Wakf, the said first revision petitioner allegedly transferred such lease in favour of Md.Sultan and it should not be taken note of by the Record Officer and as such the Wakf prayed for the dismissal of the said application. But without any rhyme or reason, after raising such objection, for reasons best known to the Wakf, it simply withdrew that same and in fact, gave consent for recording the name of Md.Sultan in the record of tenancy. 34. I am at a loss to understand as to why the public body like the Wakf, after taking a legal and appropriate objection, should take a retrograde and illegal step by having a volte face and turning turtle. 35. A mere reading of the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act would reveal that an agricultural tenant under the Wakf, is having no right to sub lease the tenancy and he cannot of his own, put somebody else in possession of the Wakf property. Once a cultivating tenant puts somebody else in possession of the property, it is presumable that he ceased to cultivate the Wakf land and thereby, he attracted eviction order as against him at the hands of the appropriate authority under the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act. When such is the legal position I am at a loss to understand as to why the Wakf should have withdrawn its objection. 36. It is a fact patently ad pellucidly, palpably and plainly clear that the first revision petitioner herein did not surrender directly the property in favour of the Wakf and now the revision petitioner would contend that he continues to be a cultivating tenant under the Wakf and he does not agree that he sub-leased the property or put the said Md.Sultan in possession of the property concerned. 37. In this factual matrix, the dispute is one covered under the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, and the authority concerned should decide whether the first revision petitioner is the cultivating tenant or not under the Wakf. 38. A fortiori the Wakf was not justified in contending that it got the said I schedule of property from Md.Sultan and that the original tenant the first revision petitioner herein ceased to be a tenant under it. Once there is no legal snapping of relationship between the tenant on the one side and the Wakf the land owner on the other side, the Wakf cannot plead that they took possession of the Wakf property from the alleged transferee of the lease. 39. The contentions on the side of the Wakf that Ex.P6 would operate as estoppel as against the first revision petitioner herein because he happened to be R1 in Ex.P6, and even then he did not prefer any appeal or revision as against that order and that he should not be heard to contend that he is the cultivating tenant and that too, after his name having been deleted by the Record Officer, fail to carry conviction with this Court. 40. The Record Officer adding fuel to the fire held that no evidence was produced before him to show that the produced before him to show that the property itself belonged to the Wakf. As such, there is no clarity at all in the order passed by the Record Officer and in fact his order suffers from lack of application of appropriate provisions of law in analyzing and understanding the facts. 41. As already extracted supra Section 2(8) of the Tamil Nadu Agricultural Lands Record Of Tenancy Rights Act, 1969, would have a clause in it as Section 2(8) (i)(b), which would connote that tenancies covered under the Tamil Nadu Public Trusts (Regulations of Administration of Agricultural Lands) Act are also covered under that Act. 42. By giving a finding in Ex.A6 that there was nothing to establish that the property itself was a Wakf property itself was a Wakf property, the Record Officer has impliedly stated that such record of tenancy by him, as per Ex.A6 was not one under Section 2(8)(1)(b) of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969. 43. A mere reading of Section 8 of the said Act, which is extracted hereunder: “Sec.8. Amendment of approved record of tenancy rights to give effect to the order under Section 6 or Section 7 – Where as a result of an order passed under Section 6 or Section 7, any change becomes necessary in the approved record of tenancy rights, the appellate authority or the District Collector or the officer referred to in Section 7, as the case may be shall direct the Record Officer to amend the approved record of tenancy rights accordingly, and the Record Officer shall give effect to such direction.” Would reveal that on surrender of an agricultural land by the tenant to Wakf, then the Wakf should act as per Section 8 of the Act. But in this case, there is no such thing happened. Even assuming that the Wakf consented for the alleged transfer of lease by the first revision petitioner herein in favour of the said Md.Sultan, such a course is totally anti-thetical to the provisions of the Tamil Nadu Wakf Act. 44. No where, under the law it is contemplated that a Wakf can recognise its tenant sub-leasing the property in favour of one other tenant or putting somebody else in his place on receipt of a lumpsum of Rs.3 lakhs or so. Once such sort of transactions are allowed to be recognised by the Wakf, then that would amount to causing violence to the very object of the Tamil Nadu Public Trust Act itself. Even for argument sake if it is taken that the first revision petitioner sub-leased or surrendered or transferred that lease in favour of Md.Sultan, such an act cannot be countenanced as legal as per law and for that matter, Wakf also should not have recognised it. 45. At this juncture, I call up and recollect the following maxims: (i) Ex dolo malo non oritur actio – Out of fraud no action arises; fraud never gives a right of action. (ii) Ex nudo pacto non oritur action -Out of a nude or naked pack that is, a bare parol agreement without consideration, no action arises. Out of a promise neither attended with particular solemnity such as belongs to a specialty nor with any consideration no legal liability can arise. (iii) Ex turpi causa no orotur actio: Out of a base illegal, or immoral consideration, an action does not arise. (iv) Ex maleficio non oritur contractus: A contract cannot arise from misconduct. All these sister maxims would convey that if any agreement is contrary to law then it will not be recognised by Courts and with the help of the Court such agreements cannot be enforced. 46. Virtually the contention on the side of the Wakf would tantamount to contending that such an illegal agreement which allegedly emerged between the revision petitioner No.1 herein and Md.Sultan should be recognised by the Court and accordingly, the jurisdiction of the Tribunal should be assessed. 47. The Record Officer also Ex.P6 did not take into account any of these salient features and throwing to winds the provisions of the Tamil Nadu Public Trust Act, simply passed the order, which is having no probative force of its own. Hence, in this view of the matter I would like to point out that still the dispute between the Wakf on the one side as the land owner, and the first revision petitioner herein on the other side, subsists relating to the status as to whether the first revision petitioner is the cultivating tenant or not under the special enactment Act, namely, Tamil Nadu Public Trust Act. When such is the position, the competent authority to decide whether the revision petitioner No.1 is the cultivating tenant or not is only the authority under the said Tamil Nadu Public Trust Act and the Wakf Tribunal had no jurisdiction at all to deal with the same. 48. Simply because the Wakf labelled or dubbed, described or portrayed the first revision petitioner herein as a trespasser, automatically the Tribunal under the Wakf Act cannot be stated to have acquired jurisdiction over the dispute. On the other hand, if the Wakf approaches the appropriate authority under the said special enactment, namely, Tamil Nadu Public Act, then the authority under it is duty bound to decide about the status of the first revision petitioner herein and give his verdict and that alone would be final. Instead of resorting to such a procedure, the Wakf simply filed that WOP relating to the first schedule of the property, treating the first revision petitioner herein as the trespasser and in such a case, this revision has to be allowed and the order of the Wakf Tribunal ordering eviction has to be set aside with the above observations giving liberty to the Wakf to approach the appropriate authority, under the Tamil Nadu Public Trust Act, excluding the time taken for prosecuting this matter before the Wakf Tribunal as well as before this Court. 49. Point No.(ii): The learned counsel for the Wakf would make a categorical submission before this Court that there is no Government Notification as of now enabling the Wakf to file suit without paying ad valorem Court Fee in respect of the amount to be recovered from its tenant. 50. The learned counsel for the Wakf, would cite the Wakf (Tamil Nadu Amendment) Act, 1982 published in Tamil Nadu Government Gazette, Part IV – Section 2, Tamil Nadu Acts and Ordinances and submit that the Wakf could carve out an exception to itself and that it need not pay ad valorem Court fee under Section 22 of the Tamil Nadu Court Fees and Suits Valuation Act in the process of recovering rent from its tenant, however, it is quite obvious that the said amendment Act is having nothing to do with payment of Court fee. 51. As such, the Tribunal also fell into error in entertaining that prayer without collecting proper ad valorem Court fee. Over and above that the ratiocination adhered to in deciding point No.(i) would also applicable for deciding this point No.(ii) to the effect that the Tribunal is having no right to order for recovery of arrears of rent from its tenant and only by resorting to the general law of land, the Wakf has to take appropriate legal action excluding the time taken for prosecuting the WOP as well as the revision before this Court. Accordingly, Point (ii) is also decided. 52. Point No.(iii) In view of the ratiocination adhered to, as set out supra, I would like to allow this revision setting aside the order of the Tribunal to the extent of the order passed by it in ordering eviction of the revision petitioners from the first schedule of the property in the from the first schedule of the property in the W.O.P. and also in directing the revision petitioners herein to pay the arrears of rent and compensation in favour of the Wakf. 53. I make it clear that Clause (3) of the decree passed by the Wakf Tribunal relating to injunction order passed as against the revision petitioners in respect of the third schedule of the property, is not hereby set aside. This civil revision petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.

Advocates List

For the Petitioners K. Chandramouli Senior Counsel for A. Muthukumar, Advocate. For the Respondents R1 - S. Sounthar, R2 to R11 - A.S. Kaizer, Advocates, R12 – Given Up.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE G. RAJASURIA

Eq Citation

LQ 2010 HC 15390