Ali Hussain Vs. Parangipettai S. Ali Mosque @ Vathiyapalli
EmailAppeal: Criminal Appeal No. 796/2001
(Arising out of SLP (Crl.) No. 3041/2000)
(Arising out of SLP (Crl.) No. 3041/2000)
Petitioner: Ali Hussain
Respondent: Parangipettai S. Ali Mosque @ Vathiyapalli
Apeal: Criminal Appeal No. 796/2001
(Arising out of SLP (Crl.) No. 3041/2000)
(Arising out of SLP (Crl.) No. 3041/2000)
Judges: G.B. PATTANAIK & RUMA PAL, JJ.
Date of Judgment: Oct 08, 2001
Head Note:
WAKFS
Wakf Act, 1954
Sections 64, 43(2) – Removal of muthavalli – Mismanagement of property – First and second management committee appointed to manage property with muthavalli – Third committee, when appointed, had no mention of muthavalli – If amounts to removal even if no order is passed. Held that in absence of order of removal, there is no removal. Orders set aside. Parties left with liberty to deal with developments taking place after-wards.
Like new Act coming in force and handing over of papers by muthavalli.
Held:
The right of muthavalli in the management of the Wakf can be nullified only when an order of removal is passed under the provisions of the Wakf Act and the absence of such order of removal, it is difficult to conclude that the constitution of management by order dated 29.12.1997 itself would tantamount to an order of removal of muthavelli. That being the position, and in the absence of any order of removal in accordance with law, the impugned direction of the High Court must be held to be not in accordance with law. The High Court was not justified in issuing the aforesaid direction. (Para 4)
JUDGEMENT:
ORDER
1. Leave granted.
2. The appellant is aggrieved by the impugned direction of the High Court pursuant to which the appellant has been forced to hand over the papers to the committee of management. The appellant was appointed as a muthavelli of the mosque by an order dated 20th April 1968 and under the terms of the deed, the muthavelli was to be appointed on hereditary basis. While the muthavalli was so continuing, a set of allegations were made against him regarding mismanagement of the property, and therefore in exercise of power under sub-section (2) of section 43 of the Wakf Act, 1954, the competent authority, by order dated 28th March 1981 appointed a committee of management and directed that the said committee of management and the muthavalli would continue to manage the affairs of the wakf. The tenure of that committee was for a period of 3 years. Subsequent to 1981 fresh committee of management was being constituted, and such committee of management along with muthavalli was managing the affairs of the wakf. On 29.12.1997, a fresh committee of management was appointed, and in that committee of management nothing was mentioned as to the muthavalli. Be it be stated that no point of time under the provisions of the Wakf Act any order of removal of muthavalli has been passed. The newly constituted committee of management approached the magistrate for a direction that the papers should be handed over to the committee of management, and the said magistrate having refused the prayer, they approached the High Court in revision. The High Court by the impugned order took the view that non-inclusion of the muthavalli in the committee of management, that was constituted by order dated 29th December, 1997 tantamounts to his removal, and therefore said muthavalli cannot have any say in the management and must hand over the papers to the constituted committee of management. It is this direction of the High Court which is the subject matter of challenge in this appeal.
3. The learned counsel for the appellant strenuously contended that the right of muthavalli under the Act cannot be nullified until and unless an order of removal is passed from the post of muthavelliship as required under section 64 of the Wakf Act, 1995. It may be stated that 1954 Act had been repealed and 1995 Act has come into force. The counter affidavit has been filed on behalf of the respondent committee of management indicating therein that the documents in question have already been handed over, and further a scheme has been framed under section 69, and even in the scheme of management the present appellant’s name does not find place anywhere as being involved with the management of wakf, and therefore there is no justification for this court in interfering with the direction of the High Court.
4. Whether a scheme has been framed or not, and whether such scheme is in accordance with law or not, we are not expressing any opinion and we are not examining the legality of that. Suffice it to say that the right of muthavalli in the management of the wakf can be nullified only when an order of removal is passed under the provisions of the Wakf Act and the absence of such order of removal, it is difficult for us to conclude that the constitution of management by order dated 29.12.1997 itself would tantamount to an order of removal of muthavalli. That being the position, and in the absence of any order of removal in accordance with law, the impugned direction of the High Court must be held to be not in accordance with law. We therefore hold that the High Court was not justified in issuing the aforesaid direction, though pursuant to the said direction the documents are said to have been already handed over to the committee of management. We therefore set aside the impugned direction of the High Court, and it is open for the parties to seek appropriate relief before the appropriate forum taking into account any subsequent development including challenging the so-called framing of a scheme.
5. The appeal is disposed of accordingly.
1. Leave granted.
2. The appellant is aggrieved by the impugned direction of the High Court pursuant to which the appellant has been forced to hand over the papers to the committee of management. The appellant was appointed as a muthavelli of the mosque by an order dated 20th April 1968 and under the terms of the deed, the muthavelli was to be appointed on hereditary basis. While the muthavalli was so continuing, a set of allegations were made against him regarding mismanagement of the property, and therefore in exercise of power under sub-section (2) of section 43 of the Wakf Act, 1954, the competent authority, by order dated 28th March 1981 appointed a committee of management and directed that the said committee of management and the muthavalli would continue to manage the affairs of the wakf. The tenure of that committee was for a period of 3 years. Subsequent to 1981 fresh committee of management was being constituted, and such committee of management along with muthavalli was managing the affairs of the wakf. On 29.12.1997, a fresh committee of management was appointed, and in that committee of management nothing was mentioned as to the muthavalli. Be it be stated that no point of time under the provisions of the Wakf Act any order of removal of muthavalli has been passed. The newly constituted committee of management approached the magistrate for a direction that the papers should be handed over to the committee of management, and the said magistrate having refused the prayer, they approached the High Court in revision. The High Court by the impugned order took the view that non-inclusion of the muthavalli in the committee of management, that was constituted by order dated 29th December, 1997 tantamounts to his removal, and therefore said muthavalli cannot have any say in the management and must hand over the papers to the constituted committee of management. It is this direction of the High Court which is the subject matter of challenge in this appeal.
3. The learned counsel for the appellant strenuously contended that the right of muthavalli under the Act cannot be nullified until and unless an order of removal is passed from the post of muthavelliship as required under section 64 of the Wakf Act, 1995. It may be stated that 1954 Act had been repealed and 1995 Act has come into force. The counter affidavit has been filed on behalf of the respondent committee of management indicating therein that the documents in question have already been handed over, and further a scheme has been framed under section 69, and even in the scheme of management the present appellant’s name does not find place anywhere as being involved with the management of wakf, and therefore there is no justification for this court in interfering with the direction of the High Court.
4. Whether a scheme has been framed or not, and whether such scheme is in accordance with law or not, we are not expressing any opinion and we are not examining the legality of that. Suffice it to say that the right of muthavalli in the management of the wakf can be nullified only when an order of removal is passed under the provisions of the Wakf Act and the absence of such order of removal, it is difficult for us to conclude that the constitution of management by order dated 29.12.1997 itself would tantamount to an order of removal of muthavalli. That being the position, and in the absence of any order of removal in accordance with law, the impugned direction of the High Court must be held to be not in accordance with law. We therefore hold that the High Court was not justified in issuing the aforesaid direction, though pursuant to the said direction the documents are said to have been already handed over to the committee of management. We therefore set aside the impugned direction of the High Court, and it is open for the parties to seek appropriate relief before the appropriate forum taking into account any subsequent development including challenging the so-called framing of a scheme.
5. The appeal is disposed of accordingly.
