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Haji K.M. Abdul Kasim and ors. Vs. P.M.N. Mohammed Dawood and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 125 of 1960
Judge
Reported inAIR1964Mad247; (1963)IMLJ281
ActsMuhammadan Law; Muslim Law; Muslim Wakf Validating Act, 1954 - Sections 55, 55(1) and 55(2); Constitution of India - Article 226; Code of Civil Procedure (CPC) - Sections 92; Religious Endowments Act - Sections 14
AppellantHaji K.M. Abdul Kasim and ors.
RespondentP.M.N. Mohammed Dawood and ors.
Appellant AdvocateM.K. Nambiyar, Adv. for ;M. Ramachandran, Adv.
Respondent AdvocateT.R. Srinivasa Iyengar, ;S. Parthasarathi, ;T. Krishnaswami Iyengar, ;M.P. Sundararajan, ;M.M. Ismail and ;M.A. Sathar Sayeed, Advs.
DispositionAppeal dismissed
Cases ReferredDirector of Public Works v. Sang
Excerpt:
.....of india, muslim law and section 55 of muslim wakf validating act, 1954 - whether order of wakf board constituted under act of 1954 granting permission to certain relators to institute suit can be regarded as amounting to performance of quasi judicial duty so as to be subject to jurisdiction of high court under article 226 - board can under section 55 even without any enquiry file suit for any relief under section 92 - consent given by board under section 55 not involved adjudication of right of parties - question one of expediency of permitting suit to be filed - such duty on part of board cannot be regarded as quasi-judicial act to entitle high court to interfere under article 226. - - the chairman of the board who is a well-known-advocate of this court presumably thought..........a muslim wakf, a further sanction was necessary under section 55(2) of the wakf act, 1954 from the wakf board. they accordingly applied for the same. the wakf board consists of ten members, one of them is a trustee of annural mahamadiyali madrasa itself, he has been impleaded as a defendant to the proposed suit. he is the 8th respondent to this appeal. the full board' met on 19-12-1959 when the question of according sanction to the trust came up for consideration. the chairman of the board who is a well-known-advocate of this court presumably thought that the matter was one for judicial consideration and' disposal. nothing material except directing the trustee to file within a date specified counter statements, if any, was done that day. at the further meetings of the board when the.....
Judgment:

Ramachandra Iyer, C.J.

1. The sole question that arises for determination in this appeal against the judgment of Rajagopalan, J. is whether an order of the Wakf Board constituted under Act XXIX of 1954 (The Wald Act, 1954) granting permission to certain relators to institute a suit, can be regarded as amounting to the performance of a quasi judicial duty so as to be subject to the jurisdiction of this Court under Article 226 of the Constitution. The learned, judge (his judgment is reported in Abdul Kasim v. Mohamad Dawood, : AIR1961Mad244 has answered that question in the negative. Hence this appeal.

2. The appellants are three among the six trustees of Annural Muhammadiyah Madarsa Trust which is being administered under a scheme framed by this Court. Respondents .1 to 7 to this appeal claiming to be interested in the institution and complaining of breaches of trust on the part of the trustees and also alleging that directions of the Court were necessary to amend the existing scheme approached and obtained from the Advocate General, Madras sanction for filing a suit for reliefs coming Under Section 92, C. P. Code. The trust being a muslim wakf, a further sanction was necessary Under Section 55(2) of the Wakf Act, 1954 from the Wakf Board. They accordingly applied for the same. The Wakf Board consists of ten members, one of them is a trustee of Annural Mahamadiyali Madrasa itself, he has been impleaded as a defendant to the proposed suit. He is the 8th respondent to this appeal. The Full Board' met on 19-12-1959 when the question of according sanction to the trust came up for consideration. The Chairman of the Board who is a well-known-advocate of this Court presumably thought that the matter was one for judicial consideration and' disposal. Nothing material except directing the trustee to file within a date specified counter statements, if any, was done that day. At the further meetings of the Board when the matter came up, the 8th respondent was excluded from the deliberations of the Board. The rest of the members alone enquired into the matter; the Board' even heard counsel thus adopting all the semblance of judicial procedure. At the conclusion of the enquiry it granted its consent in writing for the institution of the suit.

3. The appellants complain that the 8th respondent represented a faction among the trustees which is antagonistic to them and although he was ostensibly excluded, he was influencing and guiding: the deliberations of the Board at all material times, sitting behind a screen in the very room where the Board met. This, it is said, is opposed to the fundamental principle of judicial procedure, namely, that no person shall be a judge of his own cause. On those allegations the appellants filed an application to this Court under Article 226 of the Constitution to issue a writ of certiorari to quash the order of the Wakf Board granting sanction.

4. Both the Wakf Board and the other respondents have denied the factual background to the petition; they also contend that a consent given by the Board Under Section 55 of the Act for the institution of a suit, is not a justiciable matter.

5. If the matter were to be decided on the materials on record we would have very little hesitation in accepting the affidavits filed by the Chairman of the Wakf Board, rejecting what appears to be a fantastic story about the 8th respondent's participation at the meeting of the Wakf Board from behind a screen.

6. But it has become unnecessary to adopt that course as the case was decided by Rajagopalan, J. on a question of jurisdiction, that being the only point argued in the appeal. What then arises for consideration is whether this Court can by way of certiorari call upon the Wakf Board to produce its records with a view to quash its orders Under Section 55(2) of the Act. The conditions to be satisfied before this Court can do so have been enunciated in the classic passage in the judgment of Atkin L. J. in King v. Electricity Commrs., 1924 1 KB 171 thus,

'Whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having a duty to act judicially act in excess of their legal authority they aw subject to the controlling jurisdiction of the King's Bench division exercised in these writs.'

There can be little doubt in the present case that the Wakf Board has the legal authority to give the consent to the proposed suit. Indeed it is a public duty cast on it to consider whether the consent should be given or not. The question then is whether in so doing the Board acts judicially with reference to rights of parties. It that is answered in the affirmative the need for considering the further question whether it acted in excess of its jurisdiction will arise.

7. Whether the Board in giving the sanction to the proposed suit acted as a quasi judicial tribunal or not has to be decided not on the basis of what it conceived its duties to be, or by the procedure adopted by it, but by examining the scope of its duty as prescribed by Section 55 of the Wakf Act. Before we proceed to do so, it will be necessary to set out as a background to the discussion, the conception of a wakf under the Muslim law, the statutory provisions for its protection and the relevant provisions of the Act.

8. Wakf means a permanent dedication by a person professing Islamic faith of properties for any purpose recognised by that law as religious pious or charitable. Prior to the enactment of the Muslim Wakf Validating Act of 1913, a Wakf can be valid only if the property was given in substance for charitable or religious purposes, but that enactment enabled the creation of a wakf for the maintenance and support wholly or partially of the members of the settlor's family provided the ultimate benefit is either expressly or impliedly reserved for the poor or for any other purpose recognised by the Muslim law as religious, pious or charitable, but it should be of a permanent character. But a wakf of this kind namely of including a reservation for the benefit of the donors' family will often expose it to the risk of dissipation its ultimate use might also be imperilled. Abuses on the part of the descendants of the settlor might even endanger the trust. A wakf in its essential character is a public, religious or charitable trust. But there was no machinery under the law for ascertaining or knowing about the several endowments as wakfs in existence. There was no system of registration even.

9. Under Section 14 of the Religious Endowments Act, I863, any person interested in any mosque or religious establishment etc., may sue before a civil Court the trustee or manager etc. of such an institution for misfeasance, breach of trust or neglect of duty committed by such, manager, etc., and the Court has the power to direct specific performance of any act by the trustee etc., and even give a decree for damages and costs against such trustee. The Court will also have power to remove such managers, trustees etc. That is undoubtedly a provision intended to protect the endowment against misfeasance, breach of trust or neglect of duty.

10. Section 92, C. P. Code is another statutory provision conferring on the Courts powers in regard to public trusts. Whenever there is a breach of a public trust or when the affairs thereof are conducted in such a manner that a direction of the Court is felt necessary, the Advocate General by himself or two or more persons interested in. the trust after obtaining his sanction can file a. suit in the appropriate Court for any or all the reliefs specified in that section.

11. But the effectiveness of those provisions depends on public spiritted persons coming for ward to take necessary measures for protecting the trust. Further, apart from the Court, there was no agency to have a vigilant eye on the administration of the wakfs. The Wakf Act, 1954, was, therefore, passed with a view to cure this deficiency, to provide for the better administration and supervision of the wakfs.

By that enactment a statutory corporation having perpetual succession has been created with, certain defined powers for the general superintendence of the wakfs. It will be its duty to ensure that wakfs under its superintendence are properly managed so as to fulfil the objects and purposes of the foundation. The Board is empowered to remove a mutavalli who has been convicted for breach of trust or of the offence 01 contravention of Section 41 of the Act on more than one occasion. There is a power to fill up vacancies in the office of Mutavalli of a wakf in certain cases. Sections 42 and 15 (2) contain several provisions regarding the functions and powers of the Board. It can settle for the wakf. The Act envisages the maintenance of a register of wakfs. Many of the duties of the Wakf Board and of the powers can be exercised only after an enquiry. Section 44 enables persons interested to apply to the Board to enquire into the administration of any particular trust and Section 45 empowers it to conduct at: enquiry. The Act also contains provisions regarding suits under the ordinary law concerning the; administration of wakfs.

Section 55 which relates to that subject says:

'A suit to obtain any of the reliefs mentioned in Section 14 of the Religious Endowments Act, 1863 and in Section 92, C. P. C. 1908 relating to any wakf may notwithstanding anything to the contrary contained in those Acts be instituted by the Board without obtaining the leave or consent referred to in those Acts. (2) No suit to obtain any of the reliefs referred to in Sub-section (1) relating to a wakf shall be instituted by any person or authority other than the Board without the consent in writing in the Board; Provided that, no such consent shall be required for the institution of a suit against the Board in respect of any act purporting to be done by it, in pursuance of this Act or of any rules or orders made thereunder.'

12. From the foregoing section it will be seen that the intention of the Legislature is not to abolish the existing remedies open to the Advocate General or persons interested in the trust to resort I to the Court either Under Section 92, C. P. C. or under Section 14 of the Religious Endowments Act. Situations may arise even for the Board to apply for removal of trustees or for haying a scheme settled by Court, its own powers in that direction being limited. In such cases sub-section (1) prescribes that no sanction of the Advocate General will be necessary for a suit Under Section 92, C. P. C. nor need the Board show that it has an interest in the endowment for its suit under Section 14 of the Religious Endowments Act. The Board itself is a responsible statutory authority with a duty to protect wakfs and if it considers proper to file a suit of the kind mentioned above no further restriction by way of consent of the Advocate General should really be necessary. In effect Section 55(1) engrafts an exception to Section 92 of the C. P. Code, and Section 14 of the Religious Endowments Act.

13. The object and purpose of Sub-section (2) is however slightly different. Many of the reliefs which persons interested or relators, may want under those provisions can be given by the Board or the Board may consider that it will be better for itself to file the suit rather than leave it to the relators. Sub-section (2) does not itself specify the persons who could apply for sanction. The marginal note to the section makes it clear that it applies to suits referred to in Section 14 of the Religious Endowments Act and Section 92, C. P. Code only. The sub-section therefore is enacted requiring those persons who want to file a suit under any of the two provisions aforesaid, obtain the consent of the Wakf Board. The object of the section cannot obviously be to enable the Board to sit in judgment over the propriety of the sanction given by the Advocate-General, but to see that having regard to its own powers In the matter of preventing abuses in the management of a particular wakf whether it should give 1 the consent or exercise its powers to rectify the errors or itself file the suit. The provisions of the Act make it clear that it will be the duty of the Board to ensure the proper management of the mosque

14. The Advocate-General is the protector of charities and if he decides to institute a, suit or even authorises others to do it, the Board should not normally refuse its sanction unless it be for the reasons to which we have referred to above. An unreasonable refusal on the part of the Wakf Board to consent to a suit Under Section 92, C. P. C. sanctioned by the Advocate-General, will undoubtedly amount to a breach of its public duty.

15. When the Advocate-General has accorded his sanction to a suit under Section 92, C. P. Code, and the Board is approached for its consent it cannot be regarded as sitting in judgment over the propriety of the sanction of the former. The office of the Advocate-General is one under 'the Constitution and when he decides to file a suit or give sanction for one, he does a statutory duty.

He has a duty to protect the charities. He holds a pre-eminent position, entirely free from political or party affiliations in the matter of advising the Government and at the Bar of the Courts. It will be a travesty of sound principle if one were to construe the power given to the Board, a lay body, under Section 55(2) as one to supersede the opinion of the Advocate General. Section 55(2) of the Wakfs Act; should, therefore, be read harmoniously with the powers of the Advocate General under Section 92, C. P. C. If so done, the only matter to be considered by the Board will be whether it will itself file the same or a mere comprehensive suit or whether all the defects pointed out in the plaint can be rectified by itself.

16. Such a task can hardly be regarded as a judicial one. At its best the consent under subsection (2) can only be similar to the quality of the duty performable under Sub-section (1) of Section 55. Further if the Advocate General in giving a sanction to a suit under Section 92, C. P. C. is not himself performing a quasi judicial act, it cannot be held that the further consent required for a suit under that section by virtue of Section 55, will be any the more a quasi judicial act. In other words, the quality of sanction given by the Board cannot be different from that given by the Advocate-General.

There is a conflict of opinion between the High Courts in India in regard to the question whether the order of the Advocate General granting sanction under Section 92, C. P. C. is justiciable. In Abu Bucker v. Advocate General, Travancore-Cochin, AIR 1954 Trav-Co. 331, a Division Bench of the Travancore-Cochin High Court held that the duty which the Advocate General performs under Section 92, C. P. C. was a quasi judicial one in its scope and hence capable of correction by issue of a writ of certiorari. The Allahabad High Court in Shantanand v. Advocate General U. P. Allahabad, ATR 1955 All 372, and the Rajasthan High Court in Shrimalilal v. Advocate General, (S) AIR 1955 Raj I66 have taken a contrary view.

In a recent case, Raju v. Advocate-General, : AIR1962Mad320 , Jagadisan, J. had to consider that question, and, after an elaborate consideration of the relevant authorities, the learned Judge came to the conclusion that the granting of consent by the Advocate General to two or more persons to institute a suit under Section 92, C. P. C. in respect of a trust or refusing to give such consent cannot amount to a discharge of a judicial duty. We respectfully agree.

In the judgment under appeal, Rajagopalan, J. who preferred to accept the view of the Rajasthan and Allahabad High Courts, has taken the same view. That being so, the consent required Under Section 55(2), which, as we stated above, is necessary by reason of the peculiar position of the Board with respect to wakfs, cannot be treated as a judicial act.

17. But Mr. M. K. Nambiar appearing for the appellants does not accept that the nature of the consent of the Board given under Section 55(2) in any way partakes the quality of the Advocate General's sanction under Section 92, C. P. C.

Learned counsel contends that although the latter might not be justiciable, the consent of the Wakf Board under Section 55(2) of the Wakf Act, l954 will be justiciable as it amounts to a performance of a quasi judicial duty. To reach that conclusion it will be necessary to show that in giving or refusing consent under Section 55(2) the Board decides the rights of parties. Learned counsel argues that as the want of consent would entail a dismissal of the suit, the defendant to it should be regarded as having a vested right not to be sued without a sanction a procedural right, it is said analogous to a plea of limitation or res-judicata. When the effect of the Board's act is to imperil that plea it is said that a valuable right of defending the suit is lost and therefore the consent of the Board should be regarded as one adjudicating a right.

18. Misapprehension underlies the argument. A condition prescribed for the institution of a suit cannot be regarded as a right created in the defendant. It may be that as in the case of Section 92 C. P. C. the condition is imposed to prevent impecunious persons coming forward to fight out public rights on whom the award of costs if in case the suit were to fail, will have no effect. But nevertheless the obtaining of a consent is only a preliminary requisite to be satisfied before a plaintiff can launch a suit. Such a sanction or consent is not for investigating any right but only whether an investigation into the right should be made by the appropriate authority, namely, the Court. There is undoubtedly a manifest distinction between the two.

We may usefully refer in this connection to the decision of the Privy Council in Director of Public Works v. Sang, 1961 AC 901. To appreciate the passage from the judgment in that case which we shall presently give, it will be useful to refer first to the facts of the case. Under the interpretation Ordinance in Hongkong the repeal of a Statute will not affect the rights and privileges already accrued while the statute was in force. There was a statute in that country which gave protection to tenants against eviction. But a provision in it stated that if the landlord was able to obtain a rebuilding certificate from the Director, he could evict his tenant. The landlord (who himself got the land on lease from Crown) applied for it and before he could obtain it the Statute itself had been repealed. With it his right to evict disappeared. But it was contended that as his application for rebuilding certificates was pending, it must be held that a right had accrued to him and the Interpretation Ordinance saved his further right to evict under the repealed statute.

19. Lord Morris delivering the judgment of the Judicial Committee observed:

'The difference between that case and the present is that in that case a right existed and the investigation which was unaffected was an investigation in respect of it; whereas in the present case no right existed or had accrued and the intended investigation which had not taken place before the time of the repeal (consideration by the Governor-in-Council) was an investigation in order to decide whether a right should or should not be given. It was not itself a right or privilege which was preserved by the Interpretation Ordinance.'

20. Similarly, when a person applies to the Advocate General or the Wakf Board for sanction to a proposed suit, it cannot be said that any right has to be adjudicated as between him and his opponent. It is only after sanction by the two authorities, that the person gets a right to institute the suit. If, therefore, that person himself does not get any right, it is difficult to see how any right could arise in favour of the defendant. What the forum obtains from the Board on a consent being given, is a mere right to agitate the matter and vindicate the right of the trust. That cannot be regarded as a right in which the rival parties are interested in the true sense of the word.

21. It is then contended that as the mode or the manner in which any decision of the Board should be arrived is prescribed in Section 45, which attracts the judicial procedure to some extent, the enquiry conducted for deciding whether a consent under Section 55 (2) should be regarded only as a judicial one. Reference was also made to the rules framed under the Act in their correction. In other words, the contention is that Section 45 makes it obligatory on the part of the Board to conduct an enquiry as prescribed by it before granting sanction Under Section 55(2) of the Act. We cannot see how Section 45 can at all apply to a case coming under Section 55(2). As we stated earlier, the duty of the Board under Section 55(2), though a public one, is nevertheless merely administrative. It can be performed without making any enquiry whatsoever. The Board may however hold an enquiry if it considers it necessary, but that does not mean that it is bound to conduct an enquiry with all the trappings of a judicial procedure. Further Section 45(1) in terms cannot apply to a case under Section 55 (2), which states as follows:

'The Board may on application received under Section 44 or on its own motion, institute an enquiry into any matter relating to a wakf and shall hold the enquiry in such manner as may be prescribed or authorise any person in this behalf to hold the enquiry.'

The case before us is not one on an application received by the Board under Section 44. Nor is it one initiated by the Board suo motu. On that short ground alone the contention that Section 45 will apply to the case will have to be rejected.

22. That apart, it is conceded that the Board can under the provisions of Section 55(1), even without any enquiry file a suit for any or all of the reliefs under Section 92 of the C. P. Code. If the Board can do that even in a case where the Advocate General has not considered the matter, there will be less reason for an enquiry where there is his sanction. It follows that a consent given by the Wakf Board under Section 55(2) neither involves an adjudication of rights of parties, nor need it be given after an enquiry or on the basis of any judicial adjudication. The question is more or less one of expediency of permitting a suit to be filed. Such a duty on the part of the Board cannot be regarded as quasi-judicial act to entitle this Court to interfere under Article 226.

23. The appeal fails and is dismissed with costs.


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