(Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus as stated therein.)

The writ petition is for a direction against the second respondent, the Tamil Nadu Wakf Board to restrict its supervisory control of Dadasha Makkan Trust, Perambur Barracks, Chennai in accordance with the terms and clauses of the scheme decree dated 21.2.1910 made in O.S.No.75 of 1909 on the file of City Civil Court, Chennai in its administrative affairs.

2. The writ petition is filed by the Executive Committee of Dadasha Makkan Trust by its Member on behalf of its members. The said Dadasha Makkan Trust is stated to be a notified wakf bearing G.S.No.168/Mds. A Muslim Sufi Saint, by name Dadasha was buried in the above said Perambur Barracks Locality and revered as a Durgah.

2(a). The saint owned properties to an extent of 101 grounds and 1150 sq.ft. and after his death, the dargah and the properties around the dargah became a Trust, instituted with the object to perform annual Urus of the said Sufi Saint Dadasha. It is stated that six sons and two daughters of the said saint became the beneficiaries of the Dadasha Makkan Trust. A scheme was framed for the management of the properties belonging to the Trust in the suit in O.S.No.75 of 1909 by decree dated 21.2.1910.

2(b). As per the scheme decree, it is declared that the properties belonging to the Trust are charged with the Trust for the performance of Urus in the Dargah by spending a sum of Rs.75/- per year and the surplus income is divisible among the beneficiaries according to the shares. It is also declared that the descendants of each of the sons and daughters of Dadasha or their assigns are entitled in rotation to collect and perform the Urus for one year.

2(c). In the survey conducted by the Tamil Nadu Wakf Board under the Wakf Act, 1954 it was recognized that the Dadasha Makkan Trust was administered as per the scheme decree framed by the Civil Court and the Trust was administered as such till 2002. The petitioner and other members of the Executive Committee and also the 5th respondent are the beneficiaries of the said Trust and there are 100 beneficiaries for the Trust originated from six sons and two daughters of the saint. The direct management of the trust was taken by the Tamil Nadu Wakf Board by resolution dated 23.10.2002 on the ground that there was mismanagement committed by the then Muthavalli Mr.Syed Gulam Mohamed and it was under the control of the second respondent Wakf Board till 2005.

2(d). It was on 8.12.2005, the second respondent revoked its direct management and appointed the 5th respondent as Muthavalli of the wakf as per the resolution dated 29.5.2005 for a period of three years from 29.5.2005.

It is the case of the petitioner that the second respondent Wakf Board has no jurisdiction to control the said Trust and the appointment of 5th respondent as Muthavalli should not have been restricted for three years, which is against the resolution of the Wakf Board dated 8.12.2005.

2(e). The 5th respondent, who was appointed as Muthavalli is stated to have constituted an Executive Committee, which was restricted to seven members. It is stated that the 5th respondent called for a meeting of beneficiaries on 13.2.2007 and on the basis of majority decision, the following seven beneficiaries were appointed as members of the executive committee:

1. Mr.Syed Fasi Mohammed

2. Mr.Syed Akhar Sakaf

3. Mr.Syed Anwar Basha

4. Mr.Ahmed Shariff

5. Mr.Syed Mustag Hussain

6. Mr.Syed Mazher Hussain

7. Mr.Syed Masood Hussain Khadari

2(f). After the appointment of members of the Executive Committee, the 5th respondent informed the same to the second respondent Wakf Board. It is stated that one Mrs.Habibunissa Begum holding less number of shares viz., 40/20160, made a representation to the second respondent to appoint her as Joint Muthavalli. In addition to that one Mr.Akthar Hussain also sent a letter to the second respondent to constitute an Executive Committee of seven members. Based on the same, the second respondent conducted an enquiry on 29.11.2006.

2(g). According to the petitioner, without notice to the members of the Executive Committee, the steps taken by the second respondent to appoint a Joint Muthavalli is without jurisdiction since anyone of the applicants should have gone to the Wakf Tribunal against the resolution of Wakf Board dated 8.12.2005.

2(h). It is the case of the petitioner that since the 5th respondent Muthavalli refused the claim of the said Mrs.Habibunissa Begum to appoint her as Joint Muthavalli and the claim of Mr.Akthar Hussain to constitute an Executive Committee, allegations were made against him, based on which, a show-cause notice was issued on 14.12.2007 and the Wakf Board passed orders on 27.5.2008 removing the 5th respondent from the post of Muthavalli on the charges that he did not submit accounts for the period from 2005-2006 and he did not submit budget estimate for the period 2007-08 and he violated sections 44 and 46 of the Wakf Act, 1995 and he allowed his son-in-law to put a construction in the wakf property without permission from the second respondent Wakf Board. In the resolution dated 28.2.2008, the second respondent took control and management of Dadasha Makkan Trust on the basis that there are no eligible persons available to be appointed as Muthavalli.

2(i). Against the notification by which management of the trust was taken from the 5th respondent, a writ petition was filed in W.P.No.15178 of 2008 and the order of the Wakf Board dated 28.2.2008 was kept in abeyance till 15.12.2008. In the meantime, the 5th respondent filed application before the Wakf Tribunal, Chennai against the order of the second respondent dated 28.2.2008, challenging the order of taking direct management of the Trust.

2(j). It is stated that the Wakf Tribunal by order dated 16.7.2008 made in O.A.Nos.7 and 8 of 2008, rejected the claim of the 5th respondent Muthavalli to set aside the resolution of the Wakf Board dated 28.2.2008 and dismissed the O.As. It is stated that the 5th respondent preferred revision before this Court under Article 227 of the Constitution of India and the same is pending in C.R.P.Nos.2933 and 2934 of 2008.

2(k). It is the complaint of the petitioner that the second respondent before passing the order taking over the management has not given notice to the members, especially when the Wakf Board is having a mandatory duty under the scheme decree dated 21.2.1910 made in O.S.No.75 of 1909. As per the scheme decree the power of appointment of Muthavalli in respect of the wakf covered by the scheme lies with the State, the first respondent herein and therefore, the second respondent has no jurisdiction at all, as per section 66 of the Wakf Act, 1995.

3. It is as against the conduct of the second respondent in taking over the management of the Trust, the petitioner has filed the present writ petition on the basis that the second respondent has no jurisdiction; that it is the Government under section 66 of the Wakf Act which has got the right to appoint Muthavalli; that the provisions of section 65 of the Wakf Act have not been followed by conducting proper enquiry; that after having appointed the 5th respondent as Muthavalli, he has been abruptly and arbitrarily removed; that the Wakf Board is estopped from contravening the terms and clauses of its own proforma report and the impugned resolution dated 28.2.2008 passed by the second respondent is in violation of sections 65, 66 and 67 of the Wakf Act, 1995; that the resolution of the beneficiaries unanimously passed on 29.5.2005 cannot be altered and any such alteration is in violation of the scheme decree; and that there are certain material irregularities in the Wakf Board in passing the resolution and orders.

4. The second respondent in the counter affidavit has stated that there is no Committee as Executive Committee approved by the second respondent Board and therefore, the petition is not maintainable. It is also stated that the 5th respondent appointed as Muthavalli has been removed for mismanagement and thereafter, a group of his relatives was formed as Executive Committee and for that, there is no legal sanction and therefore, the writ petition is not maintainable.

4(a). It is stated that the decree passed in O.S.No.75 of 1909 dated 21.2.1910 was never implemented. It is also stated that the decree is not a scheme decree and the procedure contemplated under section 92 of the Code of Civil Procedure has never been followed. It is stated that after the Wakf Act 1954 was notified the supervisory and administrative power is with the Wakf Board and not before the Civil Court. It is stated that the writ petition itself has been filed at the instance of the 5th respondent, who has been removed from the office of Muthavalli and the petitioner is not aggrieved by the impugned orders.

4(b). It is stated that the decree states about the administration of the Trust on one year term basis but the decree has never been followed and the persons in administration were in such capacity for 25 years, 36 years, etc. and the Trust is under the control of the Tamil Nadu Wakf Board from 17.6.2008 and therefore, the administration of the Trust has not been done as per the decree.

4(c). It is also stated that even if the removal of Muthavalli was made and management of Trust was taken over by the Wakf Board, as per section 65 of the Wakf Act, it is only for the State Government which has to pass orders and without exhausting such remedy, the writ petition has been filed. It is stated that against the 5th respondent many complaints were received about his mismanagement apart from allowing his relative to put up a construction in the wakf land and therefore a show-cause notice was issued on 14.12.2007 to the 5th respondent for various violations and the 5th respondent sent his reply on 30.12.2007, admitting that a construction was made in the property belonging to the Trust without permission, stating that he does not know about the rules and law.

4(d). It is stated that on inspection it was found that unauthorized construction was made by the son-in-law of the 5th respondent and the same was admitted by the 5th respondent. The 5th respondent has also filed a written argument through his counsel and sufficient opportunity was given to him and hence, there is no violation of principles of natural justice and it is based on the admission of the 5th respondent which requires no further evidence, he was removed from the office of Muthavalli as per section 64(1)(h) of the.

4(e). It is also stated that the 5th respondent has never obeyed the orders of the Chairman of the Wakf Board and after enquiry a unanimous resolution was passed by the Wakf Board on 27.5.2008, removing the 5th respondent from the office of Muthavalli. It is also stated that the 5th respondent filed O.A.Nos.7 and 8 of 2008 before the Wakf Tribunal and the same were dismissed, against which he preferred revision in the High Court, in which stay petition was dismissed and having failed in his efforts, the 5th respondent instigated the petitioner, who is forming part of an unrecognized group, to file the present writ petition, which according to the second respondent is not maintainable.

5. It is the contention of the learned counsel for the petitioner that the second respondent, Tamil Nadu Wakf Board has to act as per the decree passed by the Civil Court, which, according to him, is a scheme decree. He would submit that in O.A.No.8 of 2008 filed by the 5th respondent before the City Civil Court-cum-Wakf Tribunal, the Wakf Board through its Chief Executive Officer, in the counter affidavit, has specifically admitted that Dadasha Makkan Wakf is governed under the scheme decree in O.S.No.75 of 1909. He would also rely upon the resolution of the Wakf Board dated 29.5.2005, by which the 5th respondent was appointed as Muthavalli, in which Wakf Board has specifically admitted that the Muthavalli in respect of the Trust is appointed as per the Court order and when that was the specific stand taken by the Wakf Board in the proceedings initiated by the 5th respondent, it cannot take a different stand now. It is his further submission that the Trust in question is governed as per the provisions of section 66 of the Wakf Act, 1995 and therefore, the second respondent Wakf Board has no power either to take over the management or remove the Muthavalli and it is only the Government under Section 66 of thewhich is empowered.

6. On the other hand, it is the contention of the learned counsel for the second respondent, Wakf Board that the Wakf Boards control over the Trust continues for a long time, since successive Muthavallis have been recognized by the Tamil Nadu Wakf Board. It is his submission that the decree passed in O.S.No.75 of 1909 on 21.2.1910 by the City Civil Court, Madras is not a scheme decree, but it is a decree passed in a suit for declaration. He would rely upon the judgments in Syed Moinuddin v. Tamil Nadu Wakf Board, Madras and others (AIR 1998 Madras 129) and Charan Singh v. Darshan Singh [(1975) 1 SCC 298] [LQ/SC/1974/419] to substantiate his contention that what is relied upon by the petitioner is not a scheme decree. It is also his case that taking note of the historical events from the date of the said decree, it is clear that the decree has never been followed. It is his submission that if the petitioner is aggrieved by any order, his remedy is to file an appeal under section 65(2) of the. He would submit that the Tribunal has found factually against the 5th respondent in respect his mismanagement and the Wakf Board has taken control of the management of the Trust till 25.8.2010 and therefore, the writ petition is liable to be dismissed.

7. As far as the contention that the decree passed by the Civil Court in O.S.No.75 of 1909 dated 21.2.1910 is a scheme decree is concerned, on a reference to the decree passed by the Civil Court, it is true that one cannot come to a conclusion that it is a scheme decree, as section 92 of the Code of Civil Procedure has not been followed. In Charan Singh v. Darshan Singh [(1975) 1 SCC 298] [LQ/SC/1974/419] the Supreme Court has held that a suit in the form a scheme under section 92(1) of the Code of Civil Procedure can be filed for anyone of the grounds enumerated therein and the relevant portion of the judgment is as follows:

"6. It is well-settled that a suit of the nature envisaged by Section 92(1) of the Code to obtain a decree for any one or more of the reliefs enumerated in clauses (a) to (g) of the Code has to be filed by the Advocate General or two or more persons having an interest in the trust with the consent in writing of the Advocate-General. Sub-section (2) provides that save under certain circumstances

..... no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

Out of the three conditions which are necessary to be fulfilled for the application of Section 92, two are indisputably present in this case viz. (1) the suit relates to a public charitable or religious trust; (2) it is founded on an allegation of a breach of trust and the direction of the Court is required for administration of the trust. The debate and dispute between the parties centered round the requirement of the fulfilment of the third condition namely whether the reliefs claimed are those which are mentioned in sub-section (1) of Section 92 of the Code. A suit may be instituted under Section 92(1) to obtain a decree

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorising the whole or any part of the trust-property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require."

8. While dealing with the provisions of the Wakf Act, 1995, in the context of section 92 of the Code of Civil Procedure, the Division Bench of this Court in Syed Moinuddin v. Tamil Nadu Wakf Board, Madras and others (AIR 1998 Madras 129) has held that filing of a scheme suit without filing the report of Advocate General cannot be termed as a scheme suit and the same is not binding on the Wakf Board while exercising its powers under the Wakf Act. The Division Bench held as follows:

"6. Bakthavatsalam,J. came to the conclusion that the decree in C.S.No.116 of 1909 is in effect a scheme decree and therefore by following the judgment of Ismail,J. in Palani Muslim Dharhapari Palas Sangam v. Wakf Board; (1975) 1 Mad LJ 201 held that the wakf board loses jurisdiction to exercise powers over the subject Durga. Before us, therefore elaborate arguments have been advanced by both the parties to understand the scope of the decree in C.S.No.116 of 1909 and to find out as to whether it is a scheme decree or not. Both the parties proceeded on the basis that a scheme decree has to be instituted in accordance with Section 92 of the Code of Civil Procedure. In Subramaniam v. Yegananarayaiah, (1971) 1 Mad LJ 46, K.S.Palaniswamy,J. was trying to find out whether a particular suit would come under the scope of Section 92 of the Code of Civil Procedure. In that connection, learned Judge found that if a suit is to come within the purport of Section 92 of the Code of Civil Procedure, there must be a trust created for a public purpose of a charitable or religious nature. Secondly, there must be an allegation of breach of trust, particularly, the relief claimed must relate to the reliefs mentioned in Section 92 of the Code of Civil Procedure. Once a suit answers the above description, it must be held to be a suit falling squarely within Section 92 of the Code of Civil Procedure. Therefore in that particular case it was held that the suit instituted without the sanction of the Advocate General was not maintainable.

7. To the same effect is the Judgment of the Supreme Court in Charan Singh v. Darshan Singh, (1975) 2 SCJ 164 : (AIR 1975 SC 371 [LQ/SC/1974/419] ). In that case, also, a suit was filed without following the procedure prescribed under Section 92 of the Code of Civil Procedure. The Supreme Court held that the suit being one under Section 92 of the Code of Civil Procedure, the same was not maintainable for not conforming to the requirements of Section 92 of the Code of Civil Procedure. Mr.Habibullah Badsha, learned Senior Counsel therefore contends that inasmuch as C.S.No.116 of 1909 had not been filed by following the procedure prescribed in Section 92 of the Code of Civil Procedure, the same cannot be considered to be a scheme decree. On the other hand, the argument of Mr.O.R.Abdul Kalam, learned counsel for the contesting respondent is that a perusal of the plaint, the reliefs claimed in the suit and the terms of the decree clearly indicate that it is a suit under Section 92 of the Code of Civil Procedure. For this purpose, he relied on the decisions reported in Narsidas v. Ravishankar, AIR 1931 Bombay 33 and Gajramji Jasramji v. Somnath Bhudardas, AIR 1940 Bombay 242. We are of the opinion that it is unnecessary to go into the arguments of Mr.O.R.Abdul Kalam and the decisions cited by him, because no attempt was made to show that the decree in the suit in C.S.No.116 of 1909 was filed after complying with the provisions of Section 92 of the Code of Civil Procedure. It is the argument of Mr.Abdul Kalam that having regard to the terms of the decree, it must be deemed to be a suit under Section 92 of the Code of Civil Procedure. As against the argument of Mr.Habibullah Badsha that the decree does not provide for any mode of succession in relation to the office of mutawalli or mujawar. Mr.Abdul Kalam, argues that the succession to the office is in accordance with the Muslim Law of Succession and Inheritance. Therefore, even if the decree relates only to the duties of the parties inter se as well as the manner of sharing the income, the same would apply to successive heirs in accordance with the Mohammedan Law of Inheritance. We are of the opinion that whatever be the nature of relief and even accepting the stand of Mr.Abdul Kalam, no decree can be deemed to be a decree under Section 92 of the Code of Civil Procedure, unless the requirements of Section 92 of the Code of Civil Procedure had been followed. The first and foremost requirement under unamended Sec.92, is that the sanction from the Advocate General must have been obtained. As rightly pointed out by learned senior counsel for the appellants, the purpose of the sanction from the Advocate General is to prevent frivolous suits being filed in respect of the trusts relating to religious or charitable objects. Whatever may be purpose, the Judgments cited above clearly indicate that unless the requirements of Section 92 of the Code of Civil Procedure are strictly followed, the suit cannot be deemed to be the suit under Section 92 of the Code of Civil Procedure."

9. By applying the dictum laid down by the Supreme Court as well as the Division Bench of this Court relating to section 92 of the Code of Civil Procedure, certainly there is a doubt about the nature of decree passed by the Civil Court in this case as to whether it is a scheme decree or not. But, that is not the main issue, in my view, since the Wakf Boards jurisdiction over the Trust has not been questioned so far. In fact, it is the admitted case that the 5th respondent himself was appointed by the second respondent, Tamil Nadu Wakf Board as per its resolution dated 29.5.2005, based on which the 5th respondent took charge as Muthavalli. The petitioner, who, on the face of the pleadings is espousing the cause of the 5th respondent, cannot deny that the 5th respondent was appointed as Muthavalli only by the 2nd respondent, the Wakf Board. A reference to the decree passed by the Civil Court shows that certainly it does not contain any clause to the effect that any other authority or Court other than the Wakf Board should make appointment or removal of Muthavalli, so as to enable the State Government to exercise its powers.

10. Section 66 of the Wakf Act, 1995 which is as follows:

"Section 66. Powers of appointment and removal of mutawalli when to be exercised by the State Government.- Whenever a deed of wakf or any decree or order of a Court or any scheme of management of any wakf provides that a Court or any authority other tan a Board may appoint or remove a mutawalli or settle or modify such scheme of management or otherwise exercise superintendence over the wakf, then notwithstanding anything contained in such deed of wakf, decree, order or scheme, such powers aforesaid shall be exercisable by the State Government:

Provided that where a Board has been established, the State Government shall consult the Board before exercising such powers."

The above said section gives power to the State Government to exercise the power of removal or appointment of Muthavalli in cases where a decree of a Court or a scheme enables the Court or any other authority other than the Wakf Board. On the facts of the present case, there is nothing to show that the decree of the Civil Court enables the Court or any other authority other than the Wakf Board to appoint or remove Muthavalli and in such circumstances, the power of the Wakf Board has not been taken away under section 66 of the Wakf Act. Therefore, it cannot be said that there is no power of superintendence by the Tamil Nadu Wakf Board against the Trust.

11. It is further relevant to note that the 5th respondent himself after he was removed by the Tamil Nadu Wakf Board, approached the Wakf Tribunal by filing O.A.Nos.7 and 8 of 2008 with a specific plea that the Tamil Nadu Wakf Board was appointed him under the resolution dated 29.5.2005 for a period of three years and he was entitled to the post till 7.12.2008 and therefore, the show-cause notice issued on 14.12.2007 is against the provisions of section 64 of the Wakf Act. The Wakf Tribunal, after finding that the Wakf Board has given reasons for the removal of 5th respondent, by relying upon section 65 of the Wakf Act, held that the Wakf Board has jurisdiction to take control of the Trust and ultimately dismissed the O.As. filed by the 5th respondent, by judgment dated 16.7.2008. Even the petitioner Executive Committee in its representation addressed to the second respondent dated 9.12.2008, has not questioned the authority of the Wakf Board, but only pleaded that the Committee was not involved in any mismanagement or misappropriation. Therefore, the stand now taken by the petitioner as if the Wakf Act is not applicable and the Wakf Board has no jurisdiction is not only a contradiction to the earlier stand taken by the petitioner, but also totally untenable.

12. In fact, it is the stand of the second respondent, Wakf Board that the management of the Trust has not been taken over permanently and it was because of the mismanagement, the Wakf Board has taken the management and steps would be taken for vesting the management of the Trust with some other persons as per the decree passed by the Civil Court, however, retaining the power of appointing Muthavalli with the Wakf Board.

13. It is brought to the notice of this Court that the Wakf Board in its resolution dated 26.08.2009 has extended the period of control over the Trust from 26.08.2009 to 25.08.2010 and it is not a permanent taking over of the Trust by the Board. In such circumstances, I am of the considered view that the 5th respondent, having been removed from the post of Muthavalli and having failed in his efforts before the Wakf Tribunal, has chosen to ventilate his grievance through the writ petitioner, which is obvious on the reading of the pleadings and therefore, the petitioner is not entitled to claim any relief in the writ petition. The writ petition is therefore dismissed. No costs.